By Dylan R.N. Crabb
In 2013, the Santa Fe Reporter filed suit against New Mexico Governor Susana Martinez over a claim of “damages for violations of the New Mexico Inspection of Public Records Act (Santa Fe Reporter v. Governor Susana Martinez, D-101-CV-201302328, 9/3/2013)” as well as the New Mexico Constitution. The trial was held in April of this year and closing arguments were recorded and presented in June.
The “Complaint for Injunctive Relief and Damages for Violations” (which began the lawsuit) was submitted to the state’s First District Court by the attorneys for the plaintiff (Santa Fe Reporter), Daniel Yohalem and Katherine Murray. The Complaint lists the perceived grievances against the SF Reporter, totaling seven IPRA violations between the years 2011 and 2013; the charges in the lawsuit range from “Withholding Public Documents,” “Inadequate Search for Responsive Documents,” “Delay in Responding to Plaintiff’s IPRA Requests,” and “Unlawful Assertions of Privileges to Withhold Public Documents.”
The purpose of this lawsuit is to increase government transparency through enforcement of the New Mexico Inspection of Public Records Act (“IPRA”), NMSA 1978, § 14-2-1, and to ensure that members of the press are given equal access to public information and documents as required by the New Mexico Constitution’s Freedom of the Press provision (“Free Press Provision”), N.M. Const. Art. II, Sec. 17.
The Complaint refers to the “Free Press Provision” of the New Mexico Constitution which reads as follows:
Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true and was published with good motives and for justifiable ends, the party shall be acquitted.
The New Mexico Inspection of Public Records Act reads as follows:
Recognizing that a representative government is dependent on an informed electorate, the intent of the legislature in enacting the Inspection of Public Records Act is to ensure, and it is declared to be the public policy of this state, that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of public officers and employees (Purpose of Act; Declaration of Public Policy). . . . A custodian receiving a written [IPRA] request shall permit the inspection [of the requested documents] immediately or as soon as it is practicable under the circumstances, but not later than fifteen days after receiving the written request. If the inspection is not permitted 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 (Procedure for Requesting Records).
The list of IPRA violations in the Complaint cite the date of each IPRA request and the length of time it took to receive a response.
- First IPRA violation: June 20, 2012 – response to the request came after a 55-day delay and failed to produce the requested documents.
- Second IPRA violation: February 26, 2013 – the governor’s office denied possession of the requested documents while failing to failing to produce “at least three emails.”
- Third IPRA violation: June 6, 2013 – the governor’s office denied possession of the requested documents while failing to produce “at least three emails.”
- Fourth IPRA violation: May 13, 2013 – response to the request came after an 87-day delay while failing to produce the requested documents and (according to the SF Reporter) inadvertently revealed their deficiencies in their IPRA response process.
- Fifth IPRA violation: April 25, 2013 – response to the request came after a 20-day delay and failed to produce the requested documents.
- Sixth IPRA violation: December 19, 2011 – response to the request came after a 63-day delay and failed to produce the requested documents.
- Seventh IPRA violation: December 14, 2012 – response to the request came after a 41-day delay and produced 98 pages of the requested documents while withholding other information requested.
The Martinez administration may be in violation of the Inspection of Public Records Act regarding their process for responding to IPRA requests. It is less clear whether the Governor is guilty of discriminating against the SF Reporter in retaliation for unfavorable news coverage. The newspaper explains in their Complaint that, “during the first seven months of 2013, Defendant, through the Governor’s appointed spokesman, Enrique Knell, refused to return any phone calls from the SF Reporter and all but one email.” When the newspaper contacted Governor Martinez directly on June 6, 2013, the governor declined to answer questions and referred the reporter to Mr. Knell. When the reporter stated that the newspaper had been attempting to get in talks with Mr. Knell with no success, the governor responded sarcastically, “I wonder why.”
The fundamental questions surrounding this court case are as follows:
- Did the administration of Governor Susana Martinez violate the New Mexco Public Records Act by not following through with the specificied IPRA requests in a timely manner and in accordance with the law?
- Is a government agency required to provide access to every news organization that requests information? To that end, what qualifies a news organization?