Court: Agencies can be fined for violations of open-records law

September 28, 2018

The state Court of Appeals says government agencies can face fines of up to $100 a day for unreasonably withholding documents under New Mexico’s open-records law.

A victory for advocates of government transparency and those who say the law is central to the public’s right to know, the decision could give more muscle to the Inspection of Public Records Act after a 2015 state Supreme Court ruling that, according to some interpretations, rolled back essential penalties.

“It’s a significant ruling. It may be a landmark ruling just because it gives IPRA some teeth,” said New Mexico Foundation for Open Government Executive Director Melanie Majors, referring to the law by its acronym. “For some organizations, it may be a wake-up call that this is something they need to take seriously.”

The decision, years in the making, started with animal-rights advocate Marcy Britton sending a request for records to the New Mexico Attorney General’s Office in 2009 for files on an animal cruelty task force.

Several years later, Britton said the office had not turned over all the records she had requested. In turn, Britton sued.

A District Court found that the office of then-Attorney General Gary King failed to let Britton review about 350 records she was entitled to review under her request. The office never claimed the records were exempt from the open-records law.

But while the Inspection of Public Records Act says a court can impose fines of up to $100 a day on a government agency when it improperly denies a request for documents, a District Court said those penalties did not apply in Britton’s case.

Under the court’s interpretation, those penalties only apply when a government agency fails to respond to a request for records by deadlines set under the law. In Britton’s case, the Office of the Attorney General provided a response on time. The court’s decision effectively meant that a government agency could hold back public records and avoid any fines under the Inspection of Public Records Act as long as it provided a response to a request on time.

The state Supreme Court, in a March 2015 ruling in a case against former Attorney General King, ruled that a section of the Inspection of Public Records Act does not “permit punitive or statutory damages,” raising the prospect that people who sue public bodies over records violations would have to do more to prove actual financial damages over withheld records.

In a decision issued earlier this week, Court of Appeals Judge J. Miles Hanisee wrote that without the sort of fines Britton sought, “there exists no incentive for a public body to do anything more than provide a perfunctory ‘response’ to a request no matter how incomplete and inadequate.”

“Contrary to the district court’s and the [Attorney General’s] interpretation, such a ‘response’ is, in fact, not a response at all,” Hanisee wrote in a decision joined by Judge Julie Vargas. Judge Linda Vanzi agreed, writing her own concurrence.

The judges sent the case back to District Court to decide whether the Office of the Attorney General should pay a fine and if so, how much.

They noted that the District Court has broad leeway to decide on any fines.

It was not immediately clear whether the state would appeal the decision. A spokesman for Attorney General Hector Balderas said his office is reviewing all options.

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