FOG sent the following letter yesterday urging the Clovis Municipal Schools to release all documents under IPRA regarding possible suspension of its high school football coach:

October 1, 2015

Kyle Snider
President, Clovis Municipal Schools
[email protected]

Jody Balch
Superintendent, Clovis Municipal Schools
[email protected]

Re: Inspection of Public Records Request

Dear Messieurs Snider and Balch:

I am writing on behalf of the New Mexico Foundation for Open Government (FOG) in regard to an Inspection of Public Records (“IPRA”) request made by Kevin Wilson of the Clovis-News Journal on September 26, 2015. FOG urges you to reconsider the district’s denial of this request.

In his request, Mr. Wilson asked for any and all public documents concerning the absence of the district’s high school football coach (Eric Roanhaus) at its September 25 game. In a letter dated September 29, 2015, the school board’s attorney, Daniel Castille of the Cuddy & McCarthy law firm, denied the newspaper’s requests for these public records on legal grounds. The school district’s interpretation of the law is incorrect.

As you know, IPRA is designed to ensure that the public has the greatest possible access to public documents, including those in the possession of school districts. I am sure you agree that the school district should strive to be as transparent as possible. Without transparency, how can the residents of Clovis whom you serve maintain their confidence and faith in the district?

Mr. Castille, acting on your behalf, cited NMSA 14-2-1(A)(3) (a limited personnel exception to IPRA) and two court decisions, Newsome and Cox, as the basis for the district’s refusal to produce the records. The district’s legal analysis is mistaken.

First, the limited personnel exception to IPRA is very narrow. It does not protect all records in a personnel file, nor all records related to discipline of employees. It applies only to “letters or memorandums which are matters of opinion in personnel files.” All other records relating to public employees, including records of discipline, are open to public inspection.

The exception only addresses matters of opinion and does not protect facts, such as a) whether a complaint was submitted; b) whether Coach Roanhaus was disciplined or not; c) what the discipline was; or d) what facts were discovered during any investigation. The Attorney General’s Compliance Guide to IPRA makes clear that ”factual information or other public information is not protected merely because it is kept in employee or student files.” The Attorney General’s Guide also explains that requested documents which contain significant factual information in addition to opinion remarks should be provided with the opinion information blocked out or otherwise redacted. Neither the district nor Mr. Castille made any attempt to redact the opinion information, but simply denied the request and wrongly withheld public documents.

To the extent the district relies on State ex rel. Newsome v. Alarid, 1977-NMSC-076, and Cox v. New Mexico Dep’t of Public Safety, 2010-NMCA-096, that reliance also is misplaced.  Newsome was overruled in part by another case, Republican Party v. New Mexico Taxation & Rev. Dep’t, 2012-NMSC-026.  Moreover, the Court of Appeals in Cox highlighted a flaw in continuing to treat as good law the language in Newsome you quote.  The Court in Newsome suggested that “[t]he Legislature quite obviously anticipated that there would be critical material and adverse opinions in letters of reference, in documents concerning disciplinary action and promotions and in various other opinion information that might have no foundation in fact but, if released for public view, could be seriously damaging to an employee.”  1977-NMSC-076, ¶ 1. But your attorney’s suggestion that the Court of Appeals simply carried this language forward in Cox is not accurate.  The opinion in Cox specifically explains that, in repeatedly amending IPRA, “the Legislature has chosen not to codify the expanded interpretation suggested by the Newsome Court regarding the letters of reference and matters of opinion in personnel files exceptions[.]”  2010-NMCA-096, ¶ 14.

Nothing in the Cox opinion suggests the Court was inclined to broadly read the personnel exception to sweep up all “disciplinary reports or documentation.”  The portion of the opinion you cite for that proposition does not support this, and that language plainly is dicta.  Cox, in which FOG filed an amicus brief, established that civilian complaints about police officers are public records, nothing more.

FOG strongly encourages the district to reconsider its decision. It is in the public’s interest to handle the News-Journal as well as all IPRA requests with maximum transparency. Access to full and accurate records is at the heart of the accountability process and the keystone to building trust in public officials and employees.

We look forward to the immediate production of the requested documents.

Very truly yours,

Susan M. Boe

Executive Director

See a news story related to this transparency issue at the Clovis News Journal.