Sunday, July 3, 2016

City Fights IPRA Lawsuit

Las Cruces City Government has refused to let Heath Haussamen inspect city manager applications. Under the Inspection of Public Records Act, does it have a legal leg to stand on?

Not that I can see.

Numerous New Mexico cases stress that guaranteeing public access to public records is essential in a democracy because the integrity of elections depends on an informed public. Providing such access is “an essential function” of government entities. Courts interpret IPRA broadly, to prioritize openness in government.

Two cases seem particularly relevant here: City of Farmington v. The Daily Times and Toomey v. Truth or Consequences.

Farmington concerned whether the municipality could withhold city manager applications. The court said, “No!” The court noted that if the applications weren't available, the public would have to accept officials' claims that they acted appropriately. “In this Court’s opinion, New Mexico’s policy of open government is intended to protect the public from having to rely solely on the representations of public officials that they have acted appropriately.”

Toomey concerned videotapes a third-party under a city contract made of city council meetings. Plaintiff served an IPRA request. Defendants denied it, saying the videos were in the hands of a third-party, not the city. The court essentially said that was nonsense. Public records couldn't be hidden from the public by such a dodge. Not everything a contractor ever does for a city is a public record. For example, an architectural firm's internal calculations and communications about a project it's hired to design for a city wouldn't be public records. Where the third-party is performing a governmental function, however, the documents are public records. A private entity that “contracts with the city to perform a public function is subject to IPRA.” 

What could be more clearly a governmental function than assessing applicants for the city manager position? 

Farmington makes clear that the applications are public records. Toomey shows that using a private consultant shouldn't change that fact. As the Court of Appeals said, “the dispositive question is whether the recordings of the City meetings were made on behalf of the City so as to constitute public records within the meaning of IPRA.”

Toomey adopted a nine-factor test for courts to use in deciding such issues.  The City, in its Response filed Thursday, argues that the “totality of factors” test supports the City here. The City notes that only some of the nine factors help Heath. But those are the most critical. (See my blog post today for further discussion.)

Full disclosure: I'm a strong believer in IPRA and I'm currently litigating an IPRA case, though not against the city and not about manager applications.

I recognize the reasons Cruces or NMSU would wish to withhold applications from prospective managers or football coaches. Almost all of those applicants are already managers or coaches (or assistants) somewhere else. Some will feel freer to apply for a new job if they can keep their current employers in the dark until they know they're leaving. 

There are often reasons officials want to keep public documents from view. Sometimes good reasons. Our Legislature has set the rules: except in certain narrow areas (such as attorney-client communications, personnel files containing opinions, ong oing investigation records that could reveal a confidential source or method) it's more important for a democracy's population to see public documents. 
That's the law.  I'm familiar with the cases; and a quick look at the Response suggests it's a game try but shouldn't prevail. 
If the Councilors want us to obey city ordinances, they oughtta set a good example.

[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 3 July 2016, and should appear presently on the newspaper's website (under "Opinion") and on the KRWG-TV website (under News-->Local Viewpoints).  I welcome questions criticism, and other civil responses here or on those sites.]

[I wrote this column because it seemed time to write it.  Then I realized the City's Response was due Friday.  I went with the column anyway, figuring that I could use this blog post to make observations concerning the City's Response. (I also had not read the Petitioner's (Heath's) Petition for Writ of Mandate prior to drafting the column.  Still haven't.)]

[The column mentions the nine-factor test stated in Toomey v. Truth or Consequences, adapted from one enunciated by Florida's Supreme Court in a Florida public records law case.  The nine factors are:
1) the level of public funding;
2) commingling of funds;
3) whether the activity was conducted on publicly owned property;
4) whether the services contracted for are an integral part of the public agency's chosen decision-making process;
5) whether the private entity is performing a governmenta function or a function which the public agency otherwise would perform;
6) the extent of the public agency's involvement with, regulation of, or control over the private entity;
7) whether the private entity was created by the public agency;
8) whether the public agency has a substantial financial interest in the private entity; and
9) for whose benefit the private entity is functioning.]

[My first reaction to the present case was that the Court of Appeals would have little trouble ordering the City to turn over the applications.  First of all, the surrounding discussion makes clear that if the private entity is performing a truly governmental function, that's the basic issue.   The court says so.
Applying the nine-factor test:  (1) the work of reviewing applications and dealing with applicants for Las Cruces City Manager was certainly paid for by Las Cruces;  (4) the services would seem integral to the decision-making process selecting a new city manager; (5) recruiting and evaluating applicants seeking to be the City Council's sole employee would sure seem "a governmental function or a function which the City would otherwise perform; and (9) the Mercer was doing this work for the benefit of the City, although one could equally say Mercer was doing this work to make a profit.
I assumed there'd be (2) no commingling of funds; I didn't know (3) how much of the activity was conducted on City property; (6) control and regulation would seem a push, in that while the City wouldn't micromanage Mercer's work, the City undoubtedly gave Mercer some direction and standards and could have terminated the Mercer contract for cause if it didn't like something; and the City (7) certainly didn't create Mercer and (8) has no financial interest in Mercer.

Thus three factors (the most important ones) support finding these are public records, and three are pretty inconclusive, while the City's best arguments are that it didn't create Mercer, and has no financial interest in Mercer, and much of the work  was done elsewhere.

Where it's so clear that this is a public function, a key part of the making of an important public decision, the documents related to that likely will be found to be public records.  (By contrast, if Heath were asking for Mercer's profit and loss statement or a list of other accounts it had handled, those likely would not be public documents unless they'd been given to city officials.)  It would be hard to read the full decision (not just the list of nine factors) and not conclude the Court of Appeals is likely to hold that these applications are public documents.  For one thing, the discussion emphasizes the public function / public decision point, not whether there was commingling of funds.  I'd guess some of those factors are there to help guide the court in a closer case, not involving such a key public function as choosing a city manager.  But I guess we'll see.

Basically: the City has stressed that unlike many other entities involved in these cases, Mercer is not a creature of the public entity it is performing work for.  But where that work is such basic public work the court should conclude that the requested documents are public too.  City residents paid for the work and will be affected by that work, and deserve to be able to see the documents.  That's the overriding theme and mandate of IPRA. As the Toomey court stressed, "We emphasize, however, that IPRA should be construed broadly to effectuate its purposes, and courts should avoid narrow definitions that would defeat the intent of the Legislature" because "access to information concerning the affairs of the government is a fundamental and necessary right of every person in this state."

Also public, although I don't know that Heath asked for them, would be contracts and correspondence showing how the City came to hire Mercer to do this work, what we are paying for it, and what guidelines were given Mercer. ]

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