Hector Balderas says the state's public records law is a bit quaint. | Wikimedia Commons
In an after-hours decision Wednesday evening, Attorney General Hector Balderas announced he's decided against challenging a state Court of Appeals decision that appeared to put some teeth into the state's Inspection of Public Records Act.
Balderas' office said his decision came after the appellate division reviewed the expected impact of the court's decision. That review came just one day after his office filed a notice with the New Mexico Supreme Court on Tuesday afternoon, asking for an additional two weeks to consider a potential appeal. Transparency advocates from the New Mexico Foundation for Open Government claimed the ruling was a victory and called it "a major step in ensuring that our state's government is open, transparent and accessible."
Balderas had also praised the ruling shortly after the court handed it down.
A three-judge panel found in September that Balderas' predecessor, Gary King, had violated the law and was subject to penalties by not disclosing the existence of hundreds of records that were responsive to a request made by animal rights activist Marcy Britton. She had requested communications among staff working for the King's animal cruelty task force.
Court of Appeals Judges Miles Hanisee, Julie Vargas and Linda Vanzi overturned a lower court's ruling that penalties of up to $100 for each day the agency withheld the documents did not apply. The panel said because King's office knew of the additional documents but did not disclose their existence nor claim an exemption for producing them, the office was liable for penalties.
Without a penalty, "there exists no incentive for a public body to do anything more than provide a perfunctory 'response' to a request not matter how incomplete and inadequate," Hanisee wrote.
Because it took years for Britton to pry the documents free, the total penalty could be a significant hit to the attorney general; perhaps $175,000.
While Balderas' office filed a request for an extension to appeal, a spokesman said late Wednesday that the attorney general hadn't decided what to do yet. Two hours later, he had.
"The Office of the Attorney General applauds the Court of Appeals' decision in upholding transparency for New Mexicans. The OAG is not committed to an appeal and is only evaluating whether there is a need for the Supreme Court to clarify the decision's future application and enforcement," spokesman David Carl said in an emailed statement around 5 pm. Carl said the office would seek legislation in January to "further increase penalties that strengthen IPRA compliance."
"[A delay] is far overshadowed by the benefit of providing thoughtful and clear guidance to the public and the government that serves the public of what our state's public records laws require," wrote Nicholas Sydow, the civil appellate chief at the Office of the Attorney General.
At 7:30 pm, Carl emailed SFR to say that Balderas had decided against challenging the court's ruling after consulting with his appellate division.
Before Balderas' final decision, Marcy Britton said Wednesday she worried an appeal could "gut" the state's public records law by providing too many ways for a government agency to wriggle free of any meaningful enforcement. She noted her lawsuit had been going on for more than six years, and that she made the original IPRA request in 2009.
Britton's attorney, John Boyd, had argued on behalf of her and NMFOG that his client's case was distinct from an earlier Supreme Court decision that held public agencies should not face daily penalties if they made a "good faith" effort to disclose the existence of documents and claim an exemption, even if that claim was later found to be inadequate in court. In Britton's case, he told the court, the office knowingly violated one of the basic requirements for responding to public records requests
"In the next two weeks of the extension in which Attorney General Balderas is going to be considering whether to appeal, we are going to be trying to satisfy him that the Court of Appeals decision is a straightforward and correct interpretation of IPRA as it is written now. In this respect, IPRA needs no [legislative] amendment," Boyd told SFR on Wednesday evening, also before Balderas made his decision.
In a meeting last week, SFR questioned Balderas about his record on enforcing the state law that makes the vast majority of government documents open to the public. The attorney general hinted that he might not be done with Britton's case.
"The press corps and FOG, I want to partner with on closing these IPRA loopholes once and for all, because here's a case where I'm actually defending Gary [King's] poor disclosure of records," Balderas said. "But my lawyers are telling me that the accurate position is [that] what the appellate court did is not actually … a long-term remedy."
So, what might that remedy look like? The AG said it will either come via legislative action or through a lawsuit. Whether that is Britton's case or a future suit, it would likely have to end up in the Supreme Court to carry something close to the full weight of law.
"[A lawsuit] would force me once and for all to intervene and to wag my finger at the Legislature and say, 'Look. Let's do some real penalties that are clear. And then don't frontload it … on the litigation model. That's an inefficient model. It's BS," Balderas told SFR.
Balderas has been open about his desire to create a state transparency officer's position in state government that would be responsible for training and for the uniform application of IPRA to public records requests. Such an office would require legislative approval and the signature of the next governor.
