The IPRA declares that “all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of public officers and employees.” NMSA 14-2-5.
More specifically, the law provides two rights — the right to inspect public records and to obtain copies of public records. All public records are open to inspection unless a specific exception, spelled out in a law or judicial rule, applies. The right to obtain copies is expressed as a series of duties imposed on the records clerk. He or she must a) provide reasonable facilities to make or furnish copies of public records during usual business hours, b) post the procedures for requesting copies, and c) post reasonable fees for copying public records.
Q: What is considered a record?
- Text messages
- Body-worn camera video
Q: Do non-profits have to comply with IPRA?
Most non-profit organizations (typically organized under 501(c)(3) or 501(c)(4) of the tax code) do not have to comply with the Inspection of Public Records Act. As independent, privately-owned organizations, they simply do not fit the definition of a “public body” in IPRA, even if all of their funding comes from government agencies. Requesters seeking public documents related to non-profit funding, such as a contract between a non-profit and a government agency, should direct their IPRA requests to the government agency.
Having said that, there are situations in which a non-profit organization is so intertwined with a particular government agency that it is a government agency for all intents and purposes. In those situations, the non-profit may be required to respond to direct IPRA requests. If you have questions about a particular non-profit, please contact FOG.
Finally, non-profits are subject to other transparency and reporting requirements; for example, the 990 tax form for non-profits is a public record. New Mexico non-profit corporations are required to file certain paperwork with the Public Regulation Commission and the Attorney General’s Office. Some non-profits also write transparency and reporting requirements into their by-laws.
Q: Can a requester just ask for records verbally?
Yes, and agencies must provide records in response to verbal requests. However, a verbal request is legally unenforceable — if it’s denied, the requester has no further recourse. (This avoids “he said/ she said” lawsuits.) Therefore, as a requester, a written request is the only way to guarantee your rights.
The law says, “Any person wishing to inspect public records may submit an oral or written request to the custodian. However, the procedures set forth in this section shall be in response to a written request. The failure to respond to an oral request shall not subject the custodian to any penalty.” NMSA 14-2-8A
Q: Can an agency respond to a request by just saying “No,” or ignoring it?
No. Once a written request is received by the correct records custodian, deadlines kick in and ignoring the request is not an option. (Or rather, doing nothing is a very costly option if the agency gets sued.) Let’s say the agency’s answer is basically “no, you can’t have those records.” Here’s what the law requires:
“If a written request has been denied, the custodian shall provide the requester with a written explanation of the denial. The written denial shall (1) describe the records sought; (2) set forth the names and titles or positions of each person responsible for the denial; and (3) be delivered or mailed to the person requesting the records within fifteen days after the request for inspection was received.” 14-2-11.B
Tip for requesters: it’s helpful to ask for written confirmation that your request has been received. Requests do get misdirected, and response deadlines only begin tolling when the appropriate custodian has your request in hand.
Q: Is there a time limit for the agency’s response to a request?
Yes. The following deadlines kick in once the correct records custodian has received a request:
1. The custodian must permit inspection “immediately or as soon as practicable under the circumstances, but not later than fifteen [calendar] days after receiving a written request.” 14-2-8.D
2. If inspection has not been allowed within three business days, the custodian “shall explain in writing when the records will be available for inspection or when the public body will respond to the request.” 14-2-8.D
Got that? Immediately if possible, then a status update by the third business day and then the records by the fifteenth calendar day. There is one escape hatch from these deadlines. If a custodian “determines that a written request is excessively burdensome or broad, an additional reasonable period of time shall be allowed to comply with the request. The custodian shall provide written notification to the requester within fifteen days of receipt of the request that additional time will be needed to respond to the written request.” 14-2-10.
Q: Who decides if a request is “burdensome or broad”? What does that mean?
The government records custodian makes this determination. Typically, it means that a requester has asked for so many records, or asked for records that are so difficult to find, that it is impossible to meet the 15-day production deadline. Although providing records is “an integral part of the routine duties of public officers and employees,” (14-2-5) government employees are not required to drop everything they’re doing in order to respond to a records request.
There are a couple things to keep in mind. One, the law requires everyone to be reasonable. A requester must identify the records she wants with “reasonable particularity.” 14-2-8.C If the request is still deemed broad or burdensome, the custodian is allowed an additional reasonable period of time. 14-2-10 That will vary from situation to situation, depending on the nature of the request, the agency’s staffing levels, technological constraints and so on. Open communication and negotiation have resolved a great many disputes over large requests — perhaps the requester can narrow the scope of the request. Perhaps the agency can provide the documents in batches, as they become available.
Second, inadequate records management is a large and growing problem. E-mail searches are often deemed broad or burdensome, either because e-mails have not been archived and indexed in a manner that facilitates searching, or because an agency doesn’t have the in-house IT expertise for conducting searches. Given the explosive proliferation of digital documents, it is essential that governments get on board with modern records management. Anyone interested in this topic is encouraged to visit ARMA International.
Q: I want to obtain some information but I don’t know if it’s considered public. How do I find out?
Simple — just ask for it. Under New Mexico law, records dealing with public business are presumed to be public. A records custodian might be able to tell you whether the information you want is available and public, or she might suggest other records that would be helpful. If you submit a written request and the information is not public, the custodian has to send you a written denial, with an explanation, within 15 days. If you’ve received such a denial and you have questions about it, you can contact FOG.
Government agencies receive a lot of requests for public records; they’re used to it. Now that you can find the records custodian’s contact information on the agency’s website, and submit requests by e-mails, it’s easier than ever.
Q: What happens if the information requested is public, but it’s mixed in with information that’s not public?
The records custodian has an obligation to separate the two and provide the public information. Here’s what the law says:
“Requested public records containing information that is exempt and nonexempt from disclosure shall be separated by the custodian prior to inspection, and the nonexempt information shall be made available for inspection.” 14-2-9.A
The fact that this happens prior to inspection is important. Why? Because it means that the time and materials required to redact information cannot be included in the copy fee. Citizens have a right to inspect public information for free, and the redaction of non-public information is a necessary precursor to inspection. (Different rules apply to databases.)
Q: Can an agency put limits on when or where a requester can inspect records?
Yes, within reason. The custodian’s duty is to:
“provide proper and reasonable opportunities to inspect public records; [and]
provide reasonable facilities to make or furnish copies of the public records during usual business hours” 14-2-7. B-C
What’s reasonable? It depends. Typically, allowing inspection during normal office hours is reasonable. Any additional restrictions should be based on legitimate interests that outweigh the requester’s right to immediate access. For instance, public agencies have an obligation to provide records as an integral part of their routine duties (see 14-2-5) but they also have other duties; they are not obligated to disrupt normal operations. This can be a problem when staffing levels are low and everyone’s busy; in such instances, it might be reasonable to limit public-records inspection and copying to certain hours of the working day. It could become unreasonable if records inspection is always the last priority, and requesters are forced to put off an appointment for days or weeks while staff tend to other matters.
In addition, custodians have a duty to protect the public’s records from tampering, damage or theft. Some agencies baby-sit requesters while they inspect and copy records; so long as the practice is not overly intimidating or invasive (i.e. watching over a requester’s shoulder as they take notes), it’s okay. But if the only person who does the baby-sitting is out for two weeks’ vacation, it would probably be unreasonable to make requesters await his return. The duty to provide information is shared by all public officers and employees, not just the designated custodian of records.
Q: Are there exceptions to what records I may inspect? Yes, there are exceptions including:
- Physical or mental examination records
- Medical treatment records of anyone confined to any institution
- Public hospital records
- Matters of opinion
- Letters of reference concerning employment, licensing or permits
- Letters or memorandums which are matters of opinion in personnel files or students’ cumulative files
- Trade secrets
- Attorney-client privileged information and
- Long-range or strategic business plans of public hospitals discussed in a properly closed meeting
- Law enforcement records that reveal
- Confidential sources
- Information or
- Individuals accused but not charged with a crime
Q: What does it cost to get a copy of a record?
There is no cost required to inspect a record.
- Agencies may only charge up to $1 per printed page for a copy of a paper record.
- Record custodians also may request advance payment of fees before making copies of public records.
There is no charge for electronic records and public bodies are only allowed to charge their actual costs for downloading or transmitting their electronic records.
Editor’s Note: NM-FOG is shamelessly indebted to the First Amendment Coalition, whose FAQs on California public-records law has provided a model for this page. The Coalition is also a comprehensive and user-friendly resource for all First Amendment questions and case law.
Information in this guide is based on general principles of law and is intended for information purposes only; we make no claim as to the comprehensiveness or accuracy of the information. It is not offered for the purpose of providing individualized legal advice. Use of this guide does not create an attorney-client or any other relationship between the user and the New Mexico Foundation for Open Government.