In a significant case shining light on enforcement of the Inspection of Public Records Act (IPRA), the New Mexico Court of Appeals on Monday reversed a lower court ruling and sided with the New Mexico Foundation for Open Government. The Court’s ruling states a public entity that provides an inadequate response to an IPRA request may be liable for damages of up to $100 per day.
The ruling came in a case filed by Marcy Britton, an animal rights activist who in 2009 filed an IPRA request with the New Mexico Attorney General’s office. The AG’s office only partially complied with the request, and Britton filed suit in district court. The district court held that Britton was not entitled to statutory damages arising out of the incomplete production. Britton appealed, arguing that a section of IPRA, NMSA § 14-2-11, authorizes a court to award a requestor damages of up to $100 per day if the public entity does not provide all of the records. NMFOG filed an amicus brief urging the Court of Appeals to rule in Britton’s favor, and the Court agreed.
The Court of Appeals held that when a public entity does not provide all requested records in response to an IPRA request, that entity can be liable for the “per diem” statutory damages. Before this holding, some public entities took the position that no “per day” statutory damages were available as long as the entity sent a timely denial letter, even if the entity later located and produced some responsive records.
This decision states that when a public entity incompletely and inadequately responds to a request, statutory damages are appropriate. The Court of Appeals emphasized the importance of timely and complete responses to IPRA requests, making clear that upon receiving an IPRA request, a records custodian has a duty to diligently undertake his or her responsibility to process and fully respond to request, including determining what public records are responsive to the request and what records or portions thereof may be exempt from disclosure, communicating the status of a request to the requester, and ultimately providing for inspection of all non-exempt records.
Monday’s decision by the Court of Appeals states, “In the absence of the potential applicability of Section 14-2-11’s per-day penalty, 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 AGO’s interpretation, such a “response” is, in fact, not a response at all under IPRA.”
It continued, “We agree with the Plaintiff and NMFOG that to uphold the district court’s ruling would be to incentivize incomplete responses indirect contravention of the legislative purpose that underpins IPRA. We, therefore, reverse the district court’s grant of summary judgment to the AGO and remand for proceedings in accordance with this opinion.”
John Boyd of Freedman, Boyd, Hollander, Goldberg, Urias and Ward, PA stated, “This decision establishes that an agency that receives an IPRA request and provides a frivolous, evasive or obviously incomplete response risks an assessment of statutory damages. The AG’s position in this case was that any timely response to an IPRA request, no matter how inadequate, is immune from statutory damages. The Court of Appeals firmly and correctly rejected the AG’s argument as inconsistent with IPRA’s letter and spirit.”
“In handing down this ruling, the Court of Appeals reaffirms NMFOG’s position that a partial response is inadequate and not in the spirit of IPRA,” Melanie J. Majors, NMFOG executive director, said. “By enforcing the requirement that noncompliance with IPRA can result in a penalty, the Court is saying that all non-exempt records must be provided and within the timeframe set by law.”
Majors praised the efforts of Boyd of the firm of Freedman, Boyd, Hollander, Goldberg, Urias and Ward, PA who filed the case for Britton and also applauded the efforts of Denise Chavez of Rodey, Dickason, Sloan, Akin & Robb, P.A. who handled NMFOG’s amicus brief.
“A copy of this ruling should be posted in the office of every records custodian in New Mexico. It is a major step in ensuring that our state’s government is open, transparent and accessible,” she said.