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Public Records Fight Resolved

Journal Staff Report
          A fight by the Richardson administration to keep the Albuquerque Journal from reviewing state Department of Transportation records will cost the state an estimated $250,000 in legal fees and costs.
        Much of the legal wrangling in the 2-year-old lawsuit was over the state's claim of executive privilege in connection with the records, which the state has now agreed to turn over to the newspaper.
        The Journal also contended that Richardson political appointees, in responding to a request under the state's Inspection of Public Records Act, withheld material that would have reflected negatively on the agency and would have revealed attempts to help Democratic House Speaker Ben Lujan in a dispute over an illegal billboard.
        The new administration of Gov. Susana Martinez agreed to settle the case before trial but after a state District Court judge issued an important ruling in January. That ruling found DOT violated the state Inspection of Public Records Act in handling at least one of two Journal records requests.
        Judge Beatrice J. Brickhouse of Albuquerque wrote in a 14-page ruling that it was "troublesome that ... plaintiffs were required to alert Defendants to the fact that the documents were missing."
        In both instances, the Journal had obtained the documents elsewhere.
        "Had Plaintiffs been unable to acquire information from other sources, it apparently would not have come to light that Defendants were withholding certain documents," Brickhouse wrote.
        She said she planned to award damages related to that issue.
        "The Court concludes that penalizing Defendants for failing to issue an adequate denial with regard to the billboard request will provide the necessary encouragement for them to follow IPRA in the future."
        Under state public records law, a successful petitioner is also reimbursed for legal fees and costs.
        Under the settlement, the Journal will not receive damages but the state will reimburse the newspaper about $153,000 for attorney fees and costs. The state's legal bills are estimated at about $100,000. Santa Fe attorney Mark Baker, who represented DOT, declined comment.
        The Journal and investigative reporter Colleen Heild were represented by Albuquerque attorneys Charles Peifer and Matthew Hoyt.
        "This lawsuit all along was to vindicate the public's right to know how its government is operating," Peifer said.
        "In their (DOT's) unsuccessful effort to keep these documents from the public, they have spent an estimated quarter of a million dollars that never should have been spent, at a time when the money could have been better spent elsewhere," Peifer said.
        In court records, the DOT contended it was "at least reasonably diligent" in trying to comply with the public records law, and its failures were an "oversight" rather than intentional.
        Since the lawsuit was filed, nearly every DOT official involved in handling, overseeing or responding to the requests has left the agency, either leaving state government or transferring to another agency.
        The DOT said that since the lawsuit was filed it had voluntarily improved its handling of public records requests, including seeking training from the state Attorney General's Office.
        In her January ruling, Brickhouse also rejected the DOT argument that an e-mail was not a proper request for records.
        Brickhouse decided one disputed point in DOT's favor. On the Journal's request related to the DOT's problems with the state's new accounting system, SHARE, the judge concluded the agency was on its way to producing documents so a lawsuit on those records wasn't necessary to force compliance.
        DOT officials said they had "misplaced" correspondence that detailed possible federal sanctions if the computer problems weren't fixed and planned to turn those records over when the Journal filed suit.
        Since taking office, Martinez has been critical of executive privilege claims by Richardson's administration and vowed to scale back the practice.
        The DOT documents withheld under a claim of executive privilege will be turned over to the Journal. Brickhouse would have decided which documents were protected if the case had not been resolved.
        Meanwhile, a former judge will review several other documents to determine whether they should be turned over to the newspaper or are protected as attorney-client communications. Both the state and the Journal have agreed to accept his decision.
        Journal editor Kent Walz said the cost of the litigation is unfortunate.
        "We should never have had to file a lawsuit," he said. "Then, we thought it was resolved last fall when expenses were about half as much. We were very surprised when the state rejected a proposed agreement and said it wanted to continue litigation."
        'Absurd result'
        The Journal filed its lawsuit after a DOT spokesman failed to turn over requested documents twice in one month beginning in February 2009. The first request related to an illegal billboard off U.S. 84-285 south of Española that was owned by Lujan and his wife.
        DOT staff during the course of a road widening project discovered the commercial billboard lacked proper permits. That meant no compensation would be awarded once it was removed as part of the reconstruction.
        Documents that weren't initially provided to the newspaper revealed DOT upper management attempted to find ways to allow the billboard to remain, including making the sign legal.
        The agency turned over some records on the billboard issue, but did not tell the newspaper at the time that it was withholding others. The DOT didn't admit withholding records until confronted by a Journal reporter 10 days later.
        Afterward, then-DOT Secretary Gary Girón said his department's error was that a spokesman "did not follow standard protocol" but said the records involving upper management were denied because of executive privilege.
        Brickhouse ruled that the law required the DOT to send a written explanation of the denial to the Journal that described the records and included the names and titles of those responsible for the denial.
        Without such an explanation, someone requesting public records wouldn't know whether he or she needed to file a legal action under the state Inspection of Public Records Act.
        Brickhouse said DOT's interpretation of the law — that essentially no explanation was required — would produce an "absurd result."

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