Sunshine Week AG Assessment

Enforcement of Sunshine Laws Under AG Balderas,
During Sunshine Week FOG assesses AG responses to complaints,
by Susan Boe, FOG Executive Director.

After a bumpy start by his open government division, Attorney General Hector Balderas and his staff have issued almost three dozen opinion letters in the last three months in response to complaints about violations of the Inspection of Public Records Act (IPRA) and the Open Meetings Act (OMA).

As part of the New Mexico Foundation for Open Government’s Sunshine Week activities, FOG recently reviewed the letters, which are posted on the Attorney General website, dated from November 30, 2015, through February 24, 2016.

Although violations were found by the AG’s office in only a few cases, no penalties were imposed against public bodies for either IPRA or OMA noncompliance.

Signed by Balderas or an assistant attorney general, the letters were written in response to complaints from citizens and members of the press.

Complaints were filed against 14 state agencies, seven cities, four school districts, four counties, a water district and a judicial district. These were the first letters posted on the AG website addressing transparency issues since Balderas became attorney general on January 1, 2015.

The majority of the 24 IPRA complaints dealt with late, slow or no responses to requests for public records. Even when the public body responded weeks later than required by law, no IPRA violation was found if the public body eventually produced the requested records.

In a few instances the AG letters scolded the public bodies for their lack of responsiveness or reminded them of applicable law.

The letters also provided insight into the Attorney General’s interpretation of some sections of the IPRA statute. For example, one letter observed that $.25 per page is an acceptable copy fee (the IPRA statute allows “reasonable fees” not exceeding $1 per page).

Another letter underscored Balderas’ position that the so-called law-enforcement exception to disclosure only applies to confidential sources, methods and information, not all ongoing criminal investigations.

The AG also noted that records custodians who do not have the requested public records in their possession must forward the IPRA request to the correct custodian and not just advise the requester to do so.

Failure to name a records custodian or post a policy about public records inspection was found to be a violation of IPRA, and a public body was told it could not charge for redacting protected information from an otherwise public document.

The seven OMA complaints addressed by the Attorney General’s office focused on vague meeting agendas and improperly closed meetings that were not within an OMA exception.

In general, the public bodies that were subject to complaints were urged to become educated on open government laws and either take corrective action (in the case of OMA issues) or provide the requested documents within a specified time period.

In declining to find violations of OMA or IPRA, the AG’s office occasionally invoked the doctrine of “substantive compliance,” which grew out of a 2003 New Mexico Court of Appeals’ decision.

FOG is encouraged that Balderas and his staff are addressing complaints about OMA and IPRA violations.

Although an initial infraction may not merit a penalty, we hope that a public body that again violates the state’s sunshine laws will be appropriately sanctioned or punished. Otherwise, transparency enforcement is merely a paper tiger.