Sunday, February 26, 2017

Animal Village NM Wins IPRA Case

Reports of a $90,000 judgment against the County prompt reflections on New Mexico's Inspection of Public Records Act (IPRA). 

Animal Village NM (AVNM) Executive Director Sunny Aris showed a quiet heroism in persevering when she felt IPRA required the County to let AVNM see certain records. 

AVNM is a small dog-rescue outfit from Alamagordo that had rescued dogs from two horrendous sites in Doña Ana County in 2015. AVNM fed and cared for the dogs, took them to veterinarians, and found folks to adopt many of the dogs. But AVNM lacked important information on the dogs. In addition, AVNM questioned how well Animal Control was doing its job, when such sites continued to exist. County personnel alleged that AVNM had jumped the gun, was interfering with an investigation, and/or was making a big profit. (Some of those dogs are still in recovery at Animal Village.) The charges went national, and AVNM got a lot of hate mail. 

Ms. Aris served an IPRA request on the County. When she came to Las Cruces to inspect documents in November, 2015, many documents she suspected (or knew) existed were not included. Unsuccessful in obtaining those documents, she filed a court petition in December, 2015. After the County hired a lawyer to fight the petition, she found one too. [Full disclosure: Law Office of Peter Goodman represented AVNM.]

In January 2017, District Judge Mary Rosner issued an opinion – after four court hearings, much legal paperwork, and hundreds of lawyer hours. Judge Rosner's Final Order called the County's delivery of public records “tortured, untimely, and inadequate by any definition.” She rejected the County's many legal arguments, and stated that it shouldn't have taken such an arduous battle to get public records to a no-kill animal shelter. (Because of the long fight, most of the judgment goes to attorney fees and reimbursement of costs.)

I hasten to add that while admitting no guilt, the County has tightened up its procedures for IPRA responses, particularly those involving documents from multiple departments. While “not in full agreement with Judge Rosner's Order,” the County has not appealed. 

New Mexico's Supreme Court has rightly called IPRA essential to a democracy. It is our government. We vote. To vote wisely, we must be informed. We are entitled to the fullest possible knowledge of officials' conduct, including access to public documents. Under IPRA, when citizens request public documents, government offices must provide them. There are sensible, narrow exceptions: for example, you can't get attorney-client communications, certain documents in personnel files, or law-enforcement records that would reveal confidential sources or methods. 

The government must respond within three days. Inspection can be delayed if the documents are voluminous or hard to find; but if the government denies inspection of any documents, it must specify in writing the reasons (and identify the officials who decided to deny documents) and describe the documents generally. This gives the requester notice and helps her decide what to do. IPRA provides special damages if documents are withheld and no such writing is provided.

Importantly, IPRA allows not only actual damages (usually small) but attorney fees. That means that in a clear case even someone with limited funds like AVNM can fight injustice. 

I applaud Ms. Aris's dogged persistence. And while IPRA requests cause extra work and shouldn't be made frivolously, aggrieved citizens should know that there can be justice at the end of the day. Even a very long day.

And to remind public entities which may need reminding that New Mexico's Inspection of Public Records Act means what it says – and our capable judges will enforce it.
[The above column appeared in the Las Cruces Sun-News this morning, Sunday, 26 February, 2017, and also appears on the newspaper's website and KRWG-TV's website.  Here's Diana Alba Soular's Sun-News story on the judgment -- which even got picked up by some Yale Law School blog and the National Freedom of Information Coalition.] 

[This column was  harder to write than some.  I wanted to write it because of its message concerning IPRA, but did not want to write it because of my personal involvement in it.  Didn't want to brag.  (And, after all, when the law and the facts favor your client's case, a lawyer ought to be able to prevail; and I regret not being sufficiently imaginative or eloquent to convince the opposition to settle this case a year ago.)  Definitely didn't want to stick it to the County, which has now dealt with the situation in a positive way by improving procedures to prevent a recurrence and by foregoing an appeal, which would have been a silly waste of public money.  (Credit County Attorney Nelson Goodin for the improvements.  Don't know whom to credit for the wise decision not to appeal.)   Above all, did not want to seek further cases and clients.  
I wrote and sent to the Sun-News an earlier version of this column.  Although I was trying to go easy on the County, I still got too much into the weeds of the case.  Things happen in litigation that aren't pleasant; other things happen that are perfectly normal but feel unpleasant to some participants; and the whole thing is not a process I'd wish on anyone.  Avoid litigation if you reasonably and honorably can!  At any rate, I woke up one morning determined to rewrite the column to get the focus back where it belonged, on IPRA and the fact that little guys can win IPRA cases when they're in the right, even if public entities have plenty of lawyers and resources.]

[Also wanted to make clear that Animal Village NM didn't make a killing on this.  People read $90K and think that's something, but the bulk of this award went to attorney fees and to reimbursing costs paid out by Animal Village NM or by me.  I'm sure there's still a strong need for donations to help with dog-rescuing and keeping dogs in food and vet services.]

[You work on something like this because it seems the right thing to do, and you expect maybe it'll help locally; but you sure don't expect folks anywhere else to pay much attention; but someone just sent me a partial list of freedom-of-information websites mentioning the case and/or posting a link to Diana's story (although I haven't gone to all these to confirm that, and assume they didn't add any new information): National Freedom of Information Coalition  Connecticut Freedom of Information Coalition Freedom of Inf Foundation Texas Kansas Sunshine Coalition for Open Government New Jersey Foundation for Open Government

Freedom of Information Oklahoma  Wyoming Coalition for Open Government  New Jersey Foundation Open Government

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