NMFOG files lawsuit against Los Lunas Schools

An open government watchdog group has filed a lawsuit against the Los Lunas Schools Board of Education, alleging that the district wrongfully denied access to public records pertaining to the investigation of a former superintendent.

The New Mexico Foundation for Open Government filed a civil complaint against the Los Lunas school board and the district’s records custodian, Brian Baca, asserting two violations of the state’s Inspection of Public Records Act.

The suit, filed May 7 in 2nd Judicial District Court, alleges the district violated the act when it failed to produce records about its investigation into former Los Lunas Schools superintendent Ryan Kettler and completely failed to respond to at least one records request.

“Despite multiple requests for public records related to the investigation and reasons for Kettler’s termination from his position as superintendent, (Los Lunas Schools) has released no details about the allegations of misconduct, the results of the investigation, or reasons for Kettler’s termination,” the suit reads.

Kettler was hired as Los Lunas Schools superintendent in July 2023, put on paid administrative leave pending an investigation into allegations of misconduct in July 2024, and fired in November 2024.

In late September 2024, NMFOG filed a records request for the contract, scope of work and invoices with DDSK, the company hired to investigate Kettler, in the possession of Los Lunas Schools “or any of its contractors subject to IPRA.”

Cuddy & McCarthy, one of the contract law firms representing the district, denied NMFOG’s records request, citing attorney-client privilege.

The suit argues attorney-client privilege exempts only public records that are communications “made for purposes of facilitating or providing legal services to a client,” making it illegal for Cuddy to withhold the requested records, since DDSK isn’t a client of the law firm, but rather a contractor who provided services to Los Lunas Schools.

A 2012 New Mexico Court of Appeals’ decision found when a private, third party acts on behalf of a public agency, it is the equivalent of that agency and subject to IPRA.

“Los Lunas Schools may not circumvent the public’s right of access to records by contracting out a public function,” NMFOG argued in a letter sent to the district in October 2024.

In its response, Cuddy attorneys acknowledged the firm was a “third-party entity” contracting with the district and subject to IPRA. It asserted the records requested by NMFOG “are not in existence” but, if they did exist, they would be protected by attorney-client privilege.

“Although (Cuddy) insists there are no responsive documents ... other than the law firm’s invoice to (Los Lunas Schools), there is irrefutable evidence that the firm contracted with DDSK ... and it is inconceivable that there would not be a single record in existence relating to this contractual relationship that would be responsive to (NMFOG’s) request,” the suit reads.

The district also didn’t explain what records were being withheld due to the privilege exemption to IPRA and didn’t explain the redactions to invoices produced for inspection, as required by the act.

“(Los Lunas Schools’) evasive and inconsistent statements indicate there are responsive records they withheld pursuant to the attorney-client privilege,” NMFOG’s suit argues.

NMFOG alleges the district also violated IPRA by not only failing to produce records for a Feb. 19 records request but also “utterly failing to respond” to that request.

NMFOG notes in the suit the district still hasn’t responded to its February request as of the date of the filing.

IPRA requires public agencies to acknowledge the receipt of a records request within three days and provide records no later than 15 days after the request is made.