While we watch Russia illustrate the dangers of authoritarian governments, let’s not take for granted our open meetings and freedom of information laws, which help make democracy almost a reality.
As New Mexico’s Inspection of Public Records Act (IPRA) states, because “a representative government is dependent upon an informed electorate, . . . all persons are entitled to the greatest possible information” about their government. IPRA mandates that, for all levels of government, “to provide persons with such information is an essential function of a representative government and an integral part of the routine duties of public officers and employees.” Read that to officials who act as if your requests for information are interrupting their real work. Answering you IS their real work.
Putin would jail you for suggesting that. Some authoritarians in this country evade these basic principles.
Courts have taken those words seriously. They’ve ordered governments to comply, construed IPRA’s exceptions narrowly, as the law commands, and used IPRA’s penalty provisions to punish government offices for violations. The law requires courts to make those offices pay attorney fees of citizens who win IPRA cases. It authorizes additional damages, which the courts have been less likely to award, partly because many cases involve newspapers and TV stations that want the documents, but aren’t as concerned about compensation for wasted time and effort. For some violations, courts can sock offices up to $100 for each day they’re not in compliance. Yeah, it comes from the public treasury; but the unnecessary expenditure is public information, and might help the public contemplate change.
IPRA’s exceptions are few and limited, though officials try to hide behind them, often with no lawful basis. Confidential attorney-client communications, legitimate trade secrets, and inmates’ physical/mental exams, are exceptions, as they should be. So are court filings that are under a protective order. (You can ask the court to lift such an order.)
Two key exceptions that officials stretch way out of shape to shield information involve law-enforcement records and “matters of opinion in personnel files or students’ cumulative files.” Officials who withhold whole files cost the public money. Officials must produce documents, redacting (or blacking out) opinions. If a police report includes an opinion about some officer’s performance, that exists outside someone’s personnel file and must be produced. So must citizen complaints.
With law-enforcement records, the law exempts only records which reveal “confidential sources, methods or information” or names and personal information about (a) persons suspected of but not charged with a crime or (b) victims of or witnesses to certain sex-related and/or violent crimes, such as violence toward a family-member, stalking, or criminal sexual penetration. (Names of law-enforcement witnesses are public information.) Obviously you can’t shield entire investigative files; but try telling that to some sheriffs.
The law makes it easy to request records. Describe the records, and include your name, address, and phone number. No need to say why you need the records. If you don’t want to use your name, have a lawyer or friend make the request. (If you ask orally, officials should supply records but can’t be punished for failing to.) Government offices can charge copying costs, but not for the time it takes to identify, locate, and collect documents.
These are rights we all share. Don’t let a cop or government clerk tell you otherwise. Hindering your investigation effectively censors whatever you might write about that investigation’s fruits.
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[The above column appeared this morning, Sunday, 3 April, 2022, in the Las Cruces Sun-News, as well as on the newspaper's website and KRWG's website. A related radio commentary will air during the week on KRWG (90.7 FM) and KTAL-LP. (101.5 FM – http://www.lccommunityradio.org/), and will presently be available on demand on KRWG’s site.]
[In the statute books, or on-line, IPRA is Chapter 14, Article 2, starting with 14-2-1. A useful tool to look for is the Attorney-General’s Guide to IPRA, which clarifies a few things. (I do not know whether that’s been revised since the 2019 changes, and am too lazy too look on this sunny sunday morning, but even if it hasn’t, almost everything in it is still valid. The main change in 2019 was to clarify the exceptions and delete at least one. Basics about public offices’ obligations, the procedures, the deadlines, and the penalties remain pretty much the same. The major exceptions have been clarified, in a way that’s helpful to folks seeking records. ]
In my experience, a lot of IPRA disputes are avoidable. Too many result from some official getting irritated about some citizen and “having an attitude,” compounded by attorneys who are trying to do what their “clients” want, or are trying to prove something. There are lessons there:
1. While you should be firm in your requests and knowledgeable about the law, it’s not helpful to assume the records custodian is your enemy. S/he may actually be positive about following the law; and if the person or persons trying to hold back records are acting like jerks with you, they may also act that way with the custodian. So avoid unnecessary personal irritations. These folks are public servants: that means they should fulfill your lawful requests, but not that you should browbeat or insult them.
2. Lawyers should recognize: (a) that their “clients” are the public, as represented by elected or appointed officials, not underlings who may be withholding records to protect themselves or because they’re annoyed; and (b) that lawyers (both in-house or outside litigation attorneys) owe it to their clients to understand IPRA and explain it when necessary, even when the explanation is unwelcome, rather than getting all macho about these things or letting the client bully them into bad acts that will cost the public dollars. I’ve seen lawyers exemplify the best and the worst here.
3. Often either the public agency (and/or its lawyer) doesn’t fully understand IPRA, but will listen – and/or look up the law when you explain something. Recently I’ve had several situations where politely articulating the law, reiterating the penalties non-cooperation could elicit, and listening to the public agency’s legitimate concerns led to folks (or I) getting the requested documents without any big fuss. All things being equal, most people want to do the right thing. If egos, ignorance, ruffled feathers, or misplaced ambitions are getting in the way, deal with those if you can. Maintaining a reasonably friendly demeanor while sticking to your substantive rights is a helpful combination.
4. NMFOG – New Mexico Foundation for Open Government – can be extremely helpful. They welcome your calls, at (505) 764-3750, or your emails, to info@nmfog.org. At a recent presentation I did on IPRA, NMFOG Executive Director Shannon Kunkel advised us that FOG has now hired a full-time attorney to help with these sorts of issues. That means they can give you advice, and may also be able to refer you to a lawyer in your area who handles IPRA cases. (FOG’s website says FOG is in the process of hiring a full-time attorney, so I may have misunderstood Ms. Kunkel; but, either way, they can help. They also have information on the actual laws and on recent cases and attorney-general’s opinions on our sunshine laws, as well as copies of the AG's guides..]
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