Attorney general rules NIU Foundation must respond to FOIA requests

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Northern Star Staff

Northern Star file photo.

Kierra Frazier, News Editor

DeKALB — The Illinois Attorney General’s Office determined in August that the NIU Foundation must respond to Freedom of Information Act requests after the foundation denied at least three requests since 2016. 

DeKalb resident Derek Van Buer submitted two FOIA requests to the NIU Foundation in 2017, and both were denied, according to the Aug. 7 ruling. An additional DeKalb resident, Sharon May also submitted a FOIA request in 2016, but it was denied. 

A FOIA request allows any person to access records from public agencies upon written request, according to FOIA.gov. Anyone can submit a request and it’s generally used by a person when government information isn’t available. 

Once a request has been submitted, the public agency is required to provide the information unless it falls into one of the nine exemptions designed to ensure protection, privacy, national security, and law enforcement, according to FOIA.gov

In early 2016, May requested records from the NIU Foundation for any payments made to or on behalf of six individuals or firms from Nov. 1, 2013, to March 31, 2015. Her FOIA request was denied and the foundation stated that they were “not a public body subject to FOIA.” 

On July 25, 2017, Van Buer submitted a FOIA request to the university for copies of the payment history to PeopleSoft Financials from the period of March 1, 2017 to June 30, 2017. Van Buer’s request was denied as well. 

On Sept. 5, 2017, Van Buer submitted a similar request to the university requesting for the July 1, 2017 to Aug. 31, 2017 pay period instead. The foundation denied the records again because, as they stated, “they’re not a public body.” 

Van Buer and May, separately, submitted a request for review to the attorney general’s office contesting the foundation’s response. 

The attorney general’s office cited section seven of the Illinois Freedom of Information Act for their reasoning in the determination. The provision states that “records in the possession of a contractor directly related to a governmental function that the contractor has agreed to perform for the public body are considered to be public records of the public body.” 

This means NIU Foundation records are directly related to the university and are considered the university’s records under FOIA.

“The foundation is far from an independent third-party,” the ruling said. “Although the university has delegated the official responsibility for raising, receiving, and administering private funds to the foundation, the university actively supports those efforts by providing resources and assistance.” 

Despite the ruling, Catherine Squires, president and CEO of the NIU Foundation, said the foundation isn’t a public body and they’re not subject to FOIA. 

The Illinois Freedom of Information Act describes a public body as all legislative, executive, administrative or advisory bodies of the university.

Squires said the foundation is separate from the university as a 501(c) (3) nonprofit organization, but they’re still working with the university to respond to FOIA requests in the spirit of the determination letter. 

She said if a person wants to FOIA documents related to the foundation, they would have to send a request directly to the university. 

“People can send FOIA requests to the university and we discuss that internally,” Squires said. “Whatever documents we have that are responsive to those requests as appropriate, we are providing to the university as partners.”

May said the decision should be “welcomed with open arms” by citizens who are concerned with how their government entities function.  

“It should also be welcomed by the NIU president, her administration and trustees as they have long proclaimed their dedication to transparency,” May said in a Sept. 16 email.

Squires said she encourages those who are inquiring about the foundation to call and ask questions directly.

“We’re an open and transparent organization, we always have been,” Squire said. “Oftentimes, there’s a mystique because a lot of philanthropy is private and we do protect the privacy of our donors, that’s part of what we do.” 

Van Buer said that universities will oftentimes use philanthropy groups to hide records which is why he submitted his FOIA requests. Van Buer said he feels great about the decision made by the attorney general’s office and believes it’s the right decision. 

“I was sort of taken aback when I saw the determination letter,” Van Buer said. “It’s a real powerful determination letter.”