Government employees and officials, take note.
If you thought you had a blank check to keep public records from the public, think again. If you lose a lawsuit seeking public records, you not only have to cough up the records – the New Mexico Court of Appeals has ruled that you are responsible for attorney fees as well – for your agency AND the member of the public who had to sue you to do your job.
Meaning it is more responsible to taxpayers – your bosses – to do your job in the first place and follow New Mexico’s Inspection of Public Records Act.
The origin story of the current case is complicated, but in brief:
• More than a decade ago, public television station KNME aired a documentary about a water project that would pipe water onto the Navajo Nation. The documentary was accused of being a thinly veiled advocacy piece funded by the state and the tribe that included no interviews from project opponents.
• An organization called the San Juan Agricultural Water Users Association responded by demanding all documents related to the program. The association received some but not all of the records it was after and later sued for the rest.
• The lawsuit meandered through years of hearings, dismissals and reversals with incomplete victories on both sides.
• A district court in 2015 awarded the water users association damages, costs and attorneys fees – but only for a six-month window of the yearslong dispute.
• Last month, a panel of appellate judges partially reversed that decision, ruling the association is in fact entitled to costs and attorneys fees that go substantially beyond those six months.
While the case isn’t quite resolved – now it goes back to district court to come up with a dollar amount – the Journal agrees with attorney Greg Williams, board member of the New Mexico Foundation for Open Government, that this is a win for transparency because “attorneys’ fees are an essential factor in IPRA litigation. Without freely awarding fees to records requestors who have to go to court, there is a chilling effect on access to public records.”
Deconstructed a little further, the ruling reiterates public-records battles are worth fighting – even for the little guy. When government employees keep information you bought and paid for from you, you don’t have to sell the farm to sue to get them.
While the appellate court’s ruling sends an important message, it leaves in place a depressing reality: Too often a member of the public who wants access to public records held by a publicly paid records custodian is forced into a lengthy lawsuit to get the records. When the custodian loses, he/she hands over the records and then uses public money to pay for all the legal fees.
The public loses money coming and going. It is so much simpler, and so much more responsible to taxpayers, for government agencies to follow the law and provide public records when requested.
This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.