Judge: Restaurants may file revised suit for state records

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In this file photo from July, employees at the Route 66 Diner in Albuquerque protest a public health order prohibiting indoor dining at restaurants. (Roberto E. Rosales/Albuquerque Journal)

Copyright © 2020 Albuquerque Journal

SANTA FE – A lawsuit filed by the New Mexico Restaurant Association seeking the state records used to justify New Mexico’s ban on indoor dining is still alive, but just barely.

State District Judge Joshua Allison granted a motion to dismiss the complaint Friday, ruling that it was premature to sue before the state had actually denied the request for records.

But he also granted the Restaurant Association permission to file an amended version of the complaint within a week – a move that would allow the group to continue its legal push for the records.

His ruling came after the New Mexico Restaurant Association and state Department of Health clashed in court Friday over whether the state is meeting its legal requirements to provide documents sought under a public records request.

Much of the dispute centered on the meaning of a provision in the state Inspection of Public Records Act, which calls for public agencies to permit access to records “immediately or as soon as is practicable under the circumstances,” but generally no later than 15 days.

The Restaurant Association is seeking all documents used to justify the public health order that prohibits indoor dining at restaurants and breweries.

Patrick Rogers, an attorney for the restaurants, said it’s a matter of urgent importance as restaurants and their employees lose millions of dollars in sales a day because they can’t seat customers inside. He filed a complaint in state District Court about 11 days after first requesting some state records, arguing that the law calls for immediate disclosure when possible.

A public agency, he said, cannot run out the clock and withhold public records for 15 days if they’re actually available before then.

“We’re entitled,” Rogers said, “to know the basis of these draconian restrictions. … The harm is immediate, and it’s continuing every day.”

Alfred Park, an attorney hired to represent the state, said the department has provided some documents and is working to produce more, making the lawsuit premature. The request is incredibly broad, he said, and the state is responding as quickly as it can, in compliance with the law.

“You can’t elevate the word ‘immediately’ at the expense of the rest of the statute,” Park said.

Allison, a judge in the 2nd Judicial District, took care to explain Friday that he wasn’t ruling on the merits of the public health order itself – an issue before the state Supreme Court in separate litigation.

He said the records law precludes the filing of a lawsuit before the request has either been denied or “deemed denied” because the public agency has taken so long to respond.

The restaurant lawsuit, Allison said, didn’t make such an allegation, so dismissing the lawsuit was appropriate. He also granted permission for the association to file an amended complaint, which would allow the group to revise its allegations.

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