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IPRA counsel ends up heavily redacted

Copyright © 2018 Albuquerque Journal

An outside attorney counseled the state’s largest university on how to potentially amend the state’s public records law, newly released documents show – but exactly what kind of amendments remain a mystery.

Zachary McCormick of the Albuquerque law firm Modrall Sperling billed the University of New Mexico $1,806 for “IPRA advice” in November, according to documents recently obtained by the Journal. IPRA is the state’s sunshine law, formally called the Inspection of Public Records Act.

In December, a UNM spokeswoman described McCormick’s consultation as part of an ongoing effort to improve the university’s response to IPRA. She said the university had no plans to pursue legislative changes to the law.

“In order to comply with our state’s record inspection law while also using staff resources as effectively as possible, UNM sought a one-time outside legal opinion to advise on our policies and fulfillment of the requirements of the law,” spokeswoman Cinnamon Blair said in a written statement Dec. 19.

But documents indicate that McCormick, who met with UNM officials Nov. 1, provided input about how to change the law.

In a Nov. 8 email to University Counsel Elsa Cole, McCormick said he had produced a memo with “a few suggestions about your response protocols and letters and some suggestions about statutory amendments that might have a chance.”

The full nature of the advice remains unclear.

In response to a Journal records request, UNM provided a heavily redacted copy of McCormick’s Nov. 8 memo, citing an exception for attorney-client privileged documents.

Asked recently if UNM had paid McCormick for advice on possible ways to change IPRA, Blair said in a written statement, “As per the invoice, UNM paid Modrall-Sperling for the scope of services specified in the letter of engagement.”

The engagement letter – dated two weeks after McCormick met with UNM officials and one week after he drafted his memo – cites his advice regarding “questions concerning compliance with and possible amendemtns (sic) to the Inspection of Public Records Act.”

McCormick declined to answer Journal questions about his work for UNM.

McCormick detailed his advice in a two-page memo. UNM redacted almost the entire second page in the copy it provided the Journal.

The released portions of the memo do not spell out any specific changes to IPRA. Blair said again recently that UNM does not plan to pursue any legislative changes to IPRA.

In the released portion, McCormick counsels officials on in-house procedures related to public records. He recommends UNM ask employees to track the time they spend fulfilling records requests.

“Instead of saying ‘We spend large amounts of employee time in complying,’ you will be able to show actual numbers, which I think is far more persuasive,” he wrote.

He adds that employees who view the time logs as more “busywork” might more readily cooperate “if you can get them to understand that it might help get some relief from IPRA in the future.”

UNM has begun asking employees to log time spent answering requests. Blair said she could not say what McCormick meant with the phrase “relief from IPRA.”

“No, those are his words. Our decision to add the logs to our protocol was made so that we would be able to use data over time to determine how to be most effective with our resources, and to demonstrate how burdensome a request might be if challenged in court as some future time,” she said.

IPRA permits access to most public records and requires public bodies to produce records within 15 days of receiving a request, except those deemed “excessively burdensome.” Agencies can charge reasonable fees for copying records, but the law does not allow them to charge for employee time spent fulfilling requests.

Peter St. Cyr, New Mexico Foundation for Open Government executive director, said the time tracking could help enhance transparency at UNM – if the university uses the information to budget for improving access.

“It is always a good idea to collect data to rationally allocate resources and to prepare to be more efficient,” St. Cyr said. “But their track record and that tone of (McCormick’s) language could signal the interest in creating additional barriers or applying a tax on records.”

UNM had received more than 630 records requests through mid-December. That’s compared to 387 in all of 2016. The university has one public records custodian, and officials have said the request volume has at times proven overwhelming.

McCormick’s memo also suggests that UNM should produce better documentation when it claims a “burdensome” exemption for not delivering records within the legally proscribed 15-day window. It could help when “preparing an exhibit to show the court you are in good faith,” he wrote.

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