Updated at 6:40 p.m. CDT May 4, 2005

NEVADA — A district judge said Wednesday he will determine by the end of May who is responsible for ensuring public access to records held by the ISU Foundation.

That decision could end almost four years of litigation by former ISU employee Mark Gannon and Des Moines businessman Arlen Nichols against the Foundation, a fundraising body affiliated with Iowa State University.

In February, the Iowa Supreme Court overturned an earlier district court ruling and said the Foundation’s records are open to the public. The court said that, although the Foundation is not a government body, it performs a government function and is subject to Iowa law regarding the release of public information.

At issue Wednesday in the continuation of the suit was the question of who is the “lawful custodian” of the Foundation records. According to Iowa law, people who physically possess public records must identify employees to carry out the provisions of the state’s open-records law.

Attorneys for Gannon and Nichols, for the Board of Regents and for the ISU Foundation argued for nearly an hour about which entity should be designated as the custodian responsible for Foundation records.

Thomas Hanson, the attorney representing Gannon and Nichols, said he has been worried throughout the case that the Foundation would try to restrict access to records by making its custodial policies intentionally difficult for citizens to use.

“We didn’t want to be in an position where there were elaborate filters and censors to our access of the public records,” he said.

The parties disagree about fees should be charged for copying records and how examination of records should be supervised. That issue may be complicated further by a bill the state Legislature passed last week in an attempt to strengthen the open-records law by putting more restrictions on how fees can be charged.

“We do require some semblance of a process,” said Mark McCormick, an attorney for the ISU Foundation. “Even if it is a filter or a barrier, this is the process the Legislature has established.”

George Carroll, representing the Board of Regents, said the Foundation has complied with Iowa law regarding access and fees.

McCormick said the public records’ lawful custodian is actually Iowa State University, not the Foundation or the Board of Regents.

“I don’t believe the court in this proceeding has any sort of jurisdiction against Iowa State University,” he said.

Hanson said that made no difference because the Board of Regents is Iowa State’s parent body.

“There isn’t a separate legal entity [called] Iowa State University,” he said.

District Judge Timothy Finn said he would rule on the lawful custodian issue by the end of May. That ruling will allow requests for information from the Foundation to be directed to a specific person charged with making sure open-records laws are followed.

The Foundation does release many public records already through a liaison.

Gannon and Nichols, who attended Wednesday’s trial, have said the Foundation is dragging its feet and not doing enough to make records both accessible and useful.

For example, The Des Moines Register received lists of top donors last month from the foundations for Iowa State, the University of Iowa and the University of Northern Iowa but reported that all three organizations released only ranges for the gifts instead of specific dollar amounts.

ISU Foundation representatives have said they are trying to balance complying with the Supreme Court ruling and open-records law with their desire to protect the privacy of donors.

The question of which Foundation records are open to inspection did not come up Wednesday. Hanson said the Supreme Court ruling already indicated the records relating to the Foundation’s governmental functions were public.

Gannon said he is concerned about the amount of time it takes to get any kind of response to requests made to the Foundation.

He and Nichols are still awaiting full disclosure by the Foundation of information they requested in November 2001. According to Daily staff reports, they have only been given bits and pieces of records requested of Foundation meeting minutes, financial records, itemized expenditures and agreements with the university.