'I think that the bottom line is after doing this for 20 years, the government entities need to embrace the public records act as a freedom measure and not as an obstacle to performing their jobs' - Rep. Jim Dines, former First Amendment attorney
BY BILL DIVEN
New Mexicans take full advantage of the state public-records law, filing many thousands of requests a year for data and documents, but some now question whether the process has become too burdensome and expensive.
Supporters of the Inspection of Public Records Act (IPRA), however, raise their own question: Are concerns over cost and compliance of IPRA only a smokescreen for rolling back the law and discouraging public oversight of government operations?
During one 18-month period, the City of Albuquerque responded to 8,814 IPRA requests at an estimated cost of $1.5 million, according to a report released in October 2014 by the city’s Office of Internal Audit. It cites a hypothetical request for four contracts totaling 240 pages requiring significant redactions, copying and legal review and costing the city $302 for staff time.
Those costs don’t include the expense of legal action when the city is sued over denied requests or delays. Those costs totaled $237,000 over three years, according to the 2014 report, and have continued since.
But the city also suffers an internal problem with IPRA compliance. Its website lists separate records custodians across 22 departments to whom records requests can be made.
“The actual number of requests may be significantly different because the City does not have a consistent citywide system for tracking requests,” the 2014 audit found. The report also discovered the city had stopped required annual training for records custodians who do the legwork fulfilling, and in some cases denying, the requests.
What the law says
IPRA requires public bodies to provide records within three days or, with written notice to the requester, within 15 days.
The law contains only six specific categories of exemptions – among them medical records, police informants and tactical plans, and letters of reference – but other laws contain dozens more.
For Rep. Jim Dines, an Albuquerque Republican, the answer to IPRA problems is not backtracking on open government or charging the public more. Higher fees essentially would be a tax on citizens for records that taxpayers already paid to produce, he said.
“I think that the bottom line is after doing this for 20 years, the government entities need to embrace the public records act as a freedom measure and not as an obstacle to performing their jobs,” Dines, a former First Amendment and open-government lawyer, told ABQ Free Press. “With better efficiency, better training, many of these costs can be reduced.”
One key to efficiency is routinely adding documents to government websites and making their contents easily accessible, he added
The ruckus over IPRA began before the 2015 Legislature convened when the Council of University Presidents representing seven of the state’s four-year colleges proposed six changes to the law. Those included broader exemptions for law-enforcement records and victim privacy, opinions and evaluations on employment, licensing and permits, and shielding civil-rights complaints, according to draft amendments prepared for legislators by the Legislative Council Service.
Only one made it into proposed legislation: stronger protections for trade secrets held by state universities and intellectual property that outside parties shared with them.
But the presidents struck a nerve by also suggesting broad language to withhold from public release the names of applicants for university and public-sector jobs. An exemption written into the law after two lawsuits against the University of New Mexico already limits identifying applicants for university presidencies to only the five finalists.
“We had in my view a premature announcement of the candidates for athletic directorship,” New Mexico State University President Garrey Carruthers said in an interview. “Yes, we ended up getting a very good athletic director who happens to be an Aggie, but we had three people who were excellent candidates, once they found out that their names were going to be public just dropped out.
“So we’re asking for top positions at the university that we’ll do as we do with presidents: when we get down to five, we’ll let you know who they are, and then you can do your investigations. Well, that sends FOG up a tree, as you can guess.”
FOG would be the New Mexico Foundation for Open Government, the nonpartisan watchdog founded in 1989 with support from the legal and media communities. The next year, with Jim Dines as its attorney, FOG, the Albuquerque Journal and KOB-TV sued the University of New Mexico Board of Regents over its secretive process in hiring President Richard Peck.
Critics contended the closed-door search fueled perceptions of insider dealings and the exclusion of qualified women and minority candidates.
That led to a court-sanctioned agreement that in future searches all applicants’ names would be released early in the interview process. In 1998 a judge found UNM violated the agreement – which halted the search for Peck’s replacement. A later court agreement and a revision of IPRA required that only the top five names be released.
In 1998, again with Dines a lead counsel, FOG and the Farmington Daily Times sued the city of Farmington when it refused to identify applicants for city manager. Again a court ruled in favor of open government under IPRA.
“That was a case that certainly stands for the proposition that when you’re hiring people and you’re going to pay them from tax dollars, then the public has a right to know who’s applying and what the process is about,” Dines said. “I have not been provided any empirical data that opening up the process is going to result in someone who is unqualified being hired or that you don’t get a good pool.”
Dines retired in 2011 after a 39-year legal career. Albuquerque voters elected him to the state House last year succeeding Rep. Jim White in the Four Hills and far Southeast Heights district once represented by Albuquerque Mayor Richard J. Berry.
Not just for the news media
While high-profile IPRA requests and lawsuits may create the impression the act is only used by the news media, that is not the case. The city’s 2014 audit found the general public, lawyers and law firms responsible for significant percentages with nearly half of the requests directed at the Albuquerque Police Department.
The law dates to 1977 and in recent years evolved from an acronym pronounced IP-ruh to a verb, as in “we’ll IPRA that.”
“I’m going to guess there has been a trend away from media requests and a trend toward us doing the discovery work for people who want to sue the university,” said Carruthers, who was governor of New Mexico from 1987 through 1990. Businesses hoping to sell products and services also file extensive requests about university operations to craft their sales pitches, he added.
NMSU only began systematically tracking IPRA request in July 2014. The log shows many a potpourri. Some are directed at the athletic department, others seek copies of employment contracts, including Carruthers’. There are repeated requests from the same person for NMSU museum records, and another from a Navy recruiter seeking information on students.
One request from an applicant not hired for a position generated 10,000 pages of digital records, and another tied up two doctorate-level faculty members for eight or more hours each hunting not for IPRA exceptions but potential violations of a federal law protecting student records.
“Yes, it’s burdensome,” Carruthers said. “We want to be open. We have public meetings; we do lots of things in the open here. It’s not like were hiding anything.”
The university presidents alerted both Dines and FOG to their proposed IPRA plans, and both opposed what FOG executive director Susan Boe called “sweeping changes.” They were, however, supportive enough of additional protection for trade secrets and intellectual property that Rep. W. Ken Martinez, a Grants Democrat, introduced as a 27-word amendment to IPRA.
Study by the Legislature
A House committee endorsed the amendment, but the bill never made it to a floor vote. Instead the House approved a Martinez memorial creating a task force to study the “administrative and fiscal burdens” of IPRA as it applies to universities, colleges and public school districts.
It also looked into privacy needs and potential claims by individuals. The 15-member task force included NMFOG, city and county associations, representatives of state government and public-school administrators, the Legislative Council Service and universities and community colleges.
While Dines said he supports the task force if it leads to better data on IPRA issues, Boe is skeptical it will resolve anything.
Boe is among those concerned the new litany of complaints about costs and workload is a setup for scaling back IPRA. Two legislative insiders contacted by ABQ Free Press said they hear rumblings of IPRA amendments being introduced in 2016 Legislature in January but they were not privy to the details.
“We feel public bodies not only have a duty to gather records but to provide them,” Boe said. “Any income that could be generated by that is offset by public policy and democracy concerns.
“We don’t want to chill the public’s right to know; that’s critical.”
A leader in the state in organizing and processing IPRA requests is Bernalillo County, which created an Office of Ethics Compliance that opened about two years ago. The office consolidates both IPRA compliance and records management and administers the county’s Code of Conduct Ordinance.
One staff person is assigned fulltime to accept IPRA requests, parcel them out to appropriate departments and track compliance with the law and its timelines. Most of the requests arrive through the transparency portal on the county website, and all go into a tracking database.
IPRA requeests on the rise
As of mid December, the office had processed about 2,600 IPRA requests this year compared to 2,070 for all of last year and 2,287 in 2014.
“It is just part of the normal function and process of any government agency in the state or country really,” said Robert Kidd, a former Albuquerque deputy city attorney picked to head the compliance office in 2013. “We understand the spirit behind the act, the need for transparency, the need for the public to be aware of how government functions.”
With the increasing workload, if the Legislature were to tweak anything, it might reexamine the timelines and deadlines, Kidd said.
The more than 50 records custodians and their deputies working for the county go through training sessions twice a year, and new hires receive one-on-one training. And while the county already posts some frequently requested documents like contracts on its website, it plans to add more in the future, Kidd said.
“Keeping in mind the ends of the public records act is transparency, creating systems, trying to keep ahead of curve and dedicating resources is probably the best way to deal with this.” he added.
Meanwhile the Office of the Attorney General, which enforces IPRA and publishes a 51-page compliance guide, receives about a dozen complaints a month over alleged violations of it or a companion law, the state Open Meetings Act (OMA). Often the problem is not deliberate violations but lack of understanding of how to comply with the laws, Attorney General Hector Balderas said.
“IPRA and OMA are the first line of defense in reducing corruption, waste, and abuse,” Balderas said. “Therefore, ensuring compliance is the best approach.”
While his staff holds monthly daylong training sessions on both laws around the state, the Legislature should modernize penalties for violations to include fines, mandatory training and targeted penalties aimed at the nature of individual offenses, he added.
The city’s 2014 IPRA audit made recommendations to the city clerk to resume IPRA training; improve request tracking and consider an automated tracking system; bring compliance procedures up to date; and prepare a checklist of IPRA exceptions for denying requests. The clerk agreed saying training would resume in December 2014 with the other tasks accomplished by July 2015.
ABQ Free Press sent voice and email inquiries to Mayor Berry’s office on Oct. 15 asking whether those tasks had been completed but had not received a response by the time this issue went to press.
Bill Diven is an Albuquerque freelance journalist who writes for the Sandoval County Signpost.