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The Montana Constitution guarantees citizens’ right to know about their government. Integral to that open government guarantee is the right to attend meetings of public bodies, the right to inspect public records and the right to participate in government.

Community newspapers, such as The Billings Gazette, take seriously our responsibility as government watchdogs and defenders of the public’s right to know. For that reason, The Gazette editorial board joins the Missoulian board in protesting a recent change in the agreement between the University of Montana and its fundraising foundation.

The new agreement says that if UM receives a public records request for any information it received from the UM Foundation, the university will give the foundation 20 days to seek a court order allowing it to keep the information secret.

The university is a public governmental body. As the exclusive fundraising affiliate of UM and recipient of $500,000 in public funding last year, the foundation is a public body, too.

“This is an inexcusable violation of the Montana Constitution, which explicitly protects the public’s right to review public documents, and to do so in a timely manner,” the Missoulian opined Sunday. We agree.

But our concern is broader than the UM agreement. As reported in March by the Missoula Independent, the Board of Regents has approved a similar new provision in the Montana State University agreement with its foundation. (The Missoula Independent, The Missoulian and The Billings Gazette are owned by Lee Enterprises.)

When The Gazette contacted the MSU Billings Foundation Monday, President Bill Kennedy and a staff member promptly furnished The Gazette with a copy of its updated operating agreement, which the regents approved as part of the consent agenda at their January meeting.

The office of Commissioner of Higher Education Clayton Christian evidently requested the addition of the delayed/blocked disclosure language to these contracts, although other provisions of the UM and MSU Billings contracts vary. We suspect other university units’ foundation agreement have similar new language or will soon.

It’s not every day or even every month a Montana public university foundation makes news. But transparency is essential for the entities that are using the public university’s name and brand to solicit support for the same. Private donations have become crucial for public universities as state funding has decreased relative to the cost of higher education.

The foundations do important work, and they must be held accountable for the funds they raise, the money they are paid by the universities and the funds they disburse.

Suppose a university foundation sells an asset for $1 million below its appraised value?

What if a foundation accepts a gift on the condition that the university does something in return?

These aren’t just hypothetical questions. Both scenarios occurred with the UM foundation. The Missoulian requested records in both cases, and received only the records the UM foundation decided to release.

The Board of Regents ought to have a public discussion of what the law requires. We call on the regents to direct their attorney to analyze the open government law as it applies to the foundations. That analysis should be presented at an open meeting at which the regents also hear presentations from independent attorneys who are well-versed in Montana open government law — experts such as Mike Meloy, who works with the Montana Freedom of Information Hotline.

The university agreements clearly regard their foundations as private entities that can keep what they wish secret. That view disregards Montana’s constitution.

— The Billings Gazette

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