Saturday, March 19, 2011
Judge Rules Records Act Violated
By Charles D. Brunt
Journal Staff Writer
The state agency charged with enforcing New Mexico's Inspection of Public Records Act has violated that act by refusing to provide requested records, a district court judge has ruled.
Judge Beatrice Brickhouse has ordered state Attorney General Gary King to provide salary records requested last year by attorney Dan M. Faber, who is representing three female attorneys in King's office. The women accuse the agency of paying them less than their male counterparts, despite having similar jobs and experience. That case is pending in federal court.
King has maintained that a federal court order staying "discovery" — the disclosure of information or documents to the opposing party who needs the information to prosecute or defend a case — bars release of the requested documents.
In her ruling, however, Brickhouse said the federal court order staying discovery does not trigger the "as otherwise provided by law" exception to state IPRA requests because it is not a statute or regulation that makes certain public records confidential.
Brickhouse also notes that King has not provided the court "with any legal support for his argument"; did not direct the court to any statute or regulation prohibiting disclosure of the documents; or "even asserted that the records he is withholding are confidential or otherwise in need of protection in any way."
King spokesman Phil Sisneros said Friday that no decisions have been made regarding Brickhouse's ruling.
"We are reviewing the judge's ruling right now," Sisneros said. "We're disappointed the judge's ruling did not recognize our need to comply with the federal court order" which, Sisneos said, was in effect when Faber filed his records request nearly a year ago, although it was lifted in January.
"We do take our IPRA responsibility seriously, and we also take very seriously the mandate of a federal court when they issue an order staying discovery," he said.
"We will consider the court's order and make our decision as soon as possible," whether to provide the records, appeal the judge's decision or take some other action, Sisneros said.
Sarah Welsh, executive director of open government watchdog New Mexico Foundation for Open Government, said the ruling reinforces the organization's argument "that it doesn't matter who you are or what you need the records for — they're still public."
Welsh said the ruling addresses two main complaints she often hears from government officials who claim the open records statute is "abused" — that reporters use it to fish for stories and that lawyers use it to circumvent discovery.
Violations of the open records act can result in a fine of up to $100 per day that the records were improperly withheld, and awarding of court costs and attorneys fees to the prevailing party.