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Court: Records Act Applies to Contractor

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SANTA FE — Citizens have a right to access public records kept by an independent contractor on behalf of state or local governments in New Mexico, the state Court of Appeals ruled in a decision welcomed by open government advocates.

The court’s ruling is important for preserving government transparency, particularly in an era when governments are privatizing many public services, Dolph Barnhouse, a lawyer for the New Mexico Foundation for Open Government said Monday.

At issue was the reach of one of New Mexico’s main governmental sunshine laws, the Inspection of Public Records Act.

“It basically says that cities can’t avoid IPRA by just contracting out everything they do as a city government,” Barnhouse said of the ruling.

The court issued the decision last week in a case involving the city of Truth or Consequences and a nonprofit corporation that operated a public access cable channel for the community.

Video recordings of city commission meetings, which were made by the contractor to show on the cable system, are subject to disclosure under state law, the court said in reversing a district judge in Sierra County who had decided the recordings were not public records. The court said the cable system contractor was the “functional equivalent of a public agency in this case.”

Barnhouse said the public records law would have been “gutted” if the Appeals Court had agreed with the judge in denying access to the recordings.

The Inspection of Public Records Act broadly defines public records and includes materials relating to public business that are held “on behalf of any public body.” However, no appellate court in New Mexico previously had provided guidance on handling records held by governmental contractors.

The city and the New Mexico Municipal League, which filed written arguments with the court, contended that the public records law shouldn’t apply when government contracts out services and there’s no provision in their operating agreement to require the contractor to keep records on behalf of the government. The court rejected that approach.

The city was sued by a community activist after she unsuccessfully requested in 2009 the copies of recordings of city commission meetings and a government workshop. The recordings had played on the public access cable channel, but the contractor routinely deleted old recordings from its computer when preparing to download the video of a new meeting.
— This article appeared on page C1 of the Albuquerque Journal

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