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Editorial: It’s your information: Two cases will help determine what you get to know about your government

The underlying premise of the New Mexico Inspection of Public Records Act isn’t complicated. But it is important. It is the public policy of this state, and the law declares that “all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of public employees.”

That underpinning is central to two court cases wending their way through the judicial system that have significant implications on just how much you get to know about your government and public officials’ conduct.

The issues headed for the New Mexico Court of Appeals fall into two basic categories. One involves financial penalties that put teeth into IPRA’s requirements that public agencies respond to requests within certain time limits. It may sound like a technicality, but intransigence and/or incompetence in failing to turn over public information in a timely manner can shroud it in secrecy just as much as outright refusal. Non-compliance needs to sting if it is to set an example for records custodians around the state.

District Judge Nancy Franchini of Albuquerque, in a lawsuit filed against Albuquerque Public Schools by the Albuquerque Journal and KOB-TV, earlier this month found nine separate violations by APS of the IPRA requirements in a case in which petitioners sought records related to the $350,000 buyout of former Superintendent Winston Brooks. Franchini sided with APS on not releasing an investigative report into complaints against Brooks, but after a three-day trial awarded the Journal $293,625 and KOB-TV $118,000 for the violations, all of which she found to be “unreasonable.” She had discretion under IPRA to award twice as much in so-called statutory damages. Franchini also said lawyers for the newspaper and television station could petition the court for attorney fees related to the violations. APS says it will appeal.

It is worth noting statutory damages in IPRA were created to encourage compliance and penalize failure. They are not classic monetary damages in a civil case. The petitioners went to court seeking records – not damages. The Journal didn’t claim it sold fewer newspapers because of APS’ refusal to produce records. KOB-TV didn’t claim it lost viewers. The victim here is the public, which was deprived of information that should have been produced in a timely manner as required by law. Assuming APS eventually writes a check, the Albuquerque Journal plans to donate a significant amount to a literacy project and the New Mexico Foundation for Open Government.

Failure to produce records is nothing new for APS, and it hasn’t learned much from years of litigation. In February, in a matter involving different records ranging from the district mill levy to APS police reports, the state Attorney General’s Office found the district “repeatedly and flagrantly” violated IPRA requirements. In the AG’s words, APS has a “systemic problem.”

The big difference on ‘matters of opinion’

The second issue is how broad a net of secrecy public bodies can cast under the exception for “matters of opinion” in a personnel file. Rather than follow the plain language of the statute, district court trial judges in several cases, relying on earlier appellate decisions, have construed matters of opinion to mean virtually anything in a personnel file – essentially creating a safe harbor for factual findings of governmental misconduct.

The scope of the “matters of opinion” exception is at issue in both the lawsuit against APS and a separate lawsuit by the Santa Fe Reporter newspaper against the city of Santa Fe.

The APS case involves efforts by the Journal and KOB-TV to obtain factual portions of the investigative report commissioned by then-Board President Annalee Maestas that looked into complaints against Brooks. The petitioners argued the public – which paid $350,000 to Brooks in the wake of numerous complaints – is entitled to know the factual basis for complaints about him. Franchini ruled the entire report was protected from disclosure and declined to review it to see if the claim of exemption was justified. The Journal and KOB-TV will appeal that ruling.

The Santa Fe Reporter case deals with the hot-button issue of alleged police misconduct.

That newspaper in late 2018 asked the city for all documents that stated the factual disciplinary actions, if any, taken against a Santa Fe police officer involved in the “notorious shooting of a mentally ill resident of Santa Fe.” The newspaper also sought records concerning the fact of discipline against several other officers accused of misconduct. Intransigence? At one point the city responded it couldn’t confirm or deny even the existence of “such discipline records without creating a new public record which would also be exempted from disclosure as a privileged document concerning disciplinary action.”

It is simply impossible for the public to gauge how the city handled the issue if it is done in secret – which is especially troubling at a time when police conduct is under a microscope.

District Judge Brian Biedscheid ruled some documents had to be turned over, but that many of the records were exempt under its broad application of the “matters of opinion in a personnel file” and should be withheld. He did award petitioners the right to seek attorney fees and said the records would be retained for appellate review as to whether they were properly withheld.

Wonky issues boil down to your dollars

So the issue is framed.

Will the “matters of opinion” exception be construed to protect only opinion from disclosure – an exemption that makes sense as it encourages and protects honest opinions in things like letters of reference and personnel evaluations.

Or, will the appellate courts endorse a much broader exemption that allows public agencies to sweep facts about official misconduct under the proverbial rug by labeling them “matters of opinion?”

Such an expansive ruling would seem contrary to the stated policy of IPRA, that you, the public, should get to know as much as possible about your government and the conduct of police officers, high-dollar superintendents and other public officials.

These issues might seem complicated, even wonky, but they merit close attention by the public. After all, it’s your government and your tax dollars.

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.