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UND did not have to release Fighting Hawks draft designs to the public, attorney general rules

UND did not have to release preliminary logo designs a New York company created for the school's nickname, North Dakota's attorney general said. Following years of controversy over the retired Fighting Sioux logo, UND released in late June a "det...

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UND did not have to release preliminary logo designs a New York company created for the school’s nickname, North Dakota’s attorney general said.

Following years of controversy over the retired Fighting Sioux logo, UND released in late June a “determined hawk” design for the Fighting Hawks nickname. Leading up to that moment, the school worked with SME Inc. to go over preliminary designs after the nickname was adopted in November 2015.

The Herald requested the preliminary designs SME created to go with the nickname, stating they were public record. UND argued it did not need to publicly release the preliminary logos created by SME because the designs were considered trade secrets protected under Century Code.

Attorney General Wayne Stenehjem agreed in an opinion released Friday, citing SME’s argument that the logos were “of a privileged nature” and disclosing them would “reduce the economic value they would otherwise have on the open market.”

“It is SME’s position that the preliminary designs not chosen by UND still have economic value because they will be used by SME in future projects and it would damage its competitive position to allow its competitors to have access to and be able to utilize those images,” Stenehjem wrote in the opinion.

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“In addition, it would further harm SME’s competitive position if its competitors could utilize the designs without incurring the same costs and time spent creating the designs,” he wrote.

SME, which produced almost 50 drafts for the potential logo, had possession of the designs, an argument UND cited for not releasing the logos.

However, Stenehjem said a private entity contracted by a public institution like UND can be subject to public record.  He writes open records law cannot be limited by policy or contract unless otherwise “expressly provided by ‘law’” even if the records in question are in the possession of a firm like SME. In the case of the request for the records for the logo, UND argued the designs were exempt from any obligation to release, as SME considered them to fall under the protected status granted by law to proprietary information.

Stenehjem agreed, writing that it was his opinion that “UND’s determination that the preliminary designs were protected as a trade secret is supported by law and past opinions.”

As such, he stated, the university did not violate open records law by denying their release.

From his reading of the opinion, Jack McDonald, general counsel for the North Dakota Newspaper Association, said the actual ownership and value of the other logos ended up being the deciding factor. While SME could be held subject to public records law by way of its contract with UND, McDonald said the firm had successfully argued that it intended to offer the dozens of designs not chosen by the university to other clients seeking a hawk logo.

“There’s a clause in the contract that the only thing UND owned was basically the finished design, which is was what they got,” said McDonald. “SME made the case that, ‘Well, we’re in effect going to use them again someplace else and we’re going to reuse them, but we don’t want people to know we’re reusing them.’ It’s kind of a funny argument. … In this case, I can see their point.”

UND spokesman Peter Johnson said the university is appreciative of open records laws, mentioning specifically provisions for trade secrets and proprietary claims such as the ones argued by SME. Johnson said those same provisions also benefit UND by way of protecting active research which can lead to development and commercialization.

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“To have those protections in place is important for that work to continue,” he said, “so we appreciate the fact that the laws account for that.”

He added the length of time that passed before Stenehjem’s opinion was released “doesn’t necessarily surprise me.”

“I don’t think there’ve been a whole lot of similar situations, though they do cite one in the opinion,” said Johnson. “I think that kind of a thorough examination benefits the entire state.”

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