STATE OF NEW MEXICO COUNTY OF LOS ALAMOS FIRST JUDICIAL DISTRICT COURT PATRICK BRENNER, and LISA BRENNER, Plaintiffs, v. D-0132-CV-2017-00062 LOS ALAMOS COUNTY COUNCIL, And BARB RICCI, Designated Custodian of Public Records for Los Alamos County, Defendants. MEMORANDUM BRIEF CONCERNING WHETHER OR NOT A LOS ALAMOS COUNTY COUNCILOR S EMAILS ABOUT LOS ALAMOS BUSINESS ON A PRIVATE EMAIL ARE PUBLIC RECORDS AND WHETHER OR NOT THERE IS AN EXCEPTION THAT ALLOWS FOR THE EXLUSION OF THE INFORMATION IN THE EMAILS FOR PRIVACY COMES NOW, Plaintiffs Patrick Brenner, through undersigned counsel Western Agriculture, Resource and Business Advocates, LLP (A. Blair Dunn, Esq.) and provides his memorandum in support of the proper disclosure of public records that have been improperly withheld by Councilor O Leary to his valid request. INTRODUCTION What should be abundantly clear to the County and to the Court from the Vaughn index that has now been provided to the Court is that Councilor O Leary is in possession of public records that relate to the public business regarding correspondence from citizens that was sent to the County as official public correspondence and commentated upon by a public official, and also the records regarding correspondence of a public official regarding the public business before the council of a Rec Bond are public records regardless of the fact that they were sent from a private email account. What should also be not countenanced by this Court is the abusive
and slanderous manner in which a County Councilor has attempted to conceal public records by attacking a citizen for requesting those records or speaking critically about his government. Such behaviors found in Councilor O Leary s briefing to this Court are absolutely antithetical to the Liberty protected by the First Amendment to the United States Constitution. I. Councilor O Leary is not able to discuss public business on a private email account without creating a public record in that email. Councilor O Leary s efforts to confuse the simple issue of what is a public record should be unpersuasive to this Court. Put simply, the law on this matter is not complicated or requiring of complex tests as Councilor O Leary would have this Court believe but has been simply summed up by Judge Singleton in the recent Santa Fe Reporter case and the fact that they are public records talking about the public business of the Rec Bond and the official public correspondence of the Los Alamos County Council is crystal clear from the Vaughn Index. Judge Singleton clearly stated in D-101-CV-2013-02328 that: The law is clear that when a person conducts public business on a private email account, the record created is a public record subject to inspection under IPRA. Commentary, IPRA Compliance Guide, p. 25 (stating if email is used to conduct public business, the email is a public record even though a personal account is used. The person using the personal account is effectively using, creating, receiving, maintaining or holding the public record on behalf of the public body. ) Thus, if a personal email was used to communicate about public business, the email was a public record that had to be disclosed if it existed at the time of an IPRA request. See Exhibit A, pg. 54, attached hereto. II. THE DOCUMENTS REQUESTS ARE PUBLIC RECORDS AND ARE NOT SHIELDED FROM DISCLOSURE BY ANY RECOGNIZED PRIVILEGE OR EXCEPTION. When deciding whether existing public records are exempt from disclosure, courts should restrict their analysis to whether disclosure under IPRA may be withheld because of a specific exception contained within IPRA, or statutory or regulatory exceptions, or privileges adopted by
this Court or grounded in the constitution. Republican Party of New Mexico v. New Mexico Taxation and Revenue Department (Republican Party II), 2012 NMSC 026, 16, 283 P.3d 853, 860. The purpose of IPRA is to ensure... 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 1978, 14 2 5. See also Edenburn v. New Mexico Department of Health, 2013-NMCA-045, 12, 299 P.3d 424, 428. This right is limited only by the Legislature s enumeration of certain categories of records that are excepted from inspection. Republican Party II, 2012 NMSC 026, 13, 283 P.3d 853. Additionally, In addition to the specifically enumerated exceptions, records may be excepted from inspection under IPRA as otherwise provided by law. Id. 14 2 1(A)(8). This catch-all exception includes statutory and regulatory bars to disclosure, such as the Privacy Acts. See City of Las Cruces v. Pub. Emp. Labor Relations Bd., 1996 NMSC 024, 121 N.M. 688, 690 91, 917 P.2d 451, 453 54. The catch-all exception also includes constitutionally mandated privileges, as recognized by the parties and the Court of Appeals, Republican Party, 2010 NMCA 080, 24, 148 N.M. 877, 242 P.3d 444, as well as privileges established by our rules of evidence, Estate of Romero v. City of Santa Fe, 2006 NMSC 028, 7, 139 N.M. 671, 137 P.3d 611; see also Rule 11 501 NMRA (limiting privileges that may be asserted to those grounded in the constitution, the rules of evidence, and other rules adopted by the Court). Although courts may use common law principles when interpreting IPRA, see San Juan Agric. Water Users Ass n, 2011 NMSC 011, 20, 150 N.M. 64, 257 P.3d 884, this does not mean common law privileges provide a valid basis for withholding documents from public scrutiny when we do not otherwise recognize such privileges in our courts of law or by statute, see Estate of Romero, 2006 NMSC 028, 11, 139 N.M. 671, 137 P.3d 611; First Judicial, 96 N.M. at 257, 629 P.2d at 333. Without proof of the Legislature's intent to the contrary, we do not construe IPRA to contemplate privileges not applicable elsewhere in our state government. Republican Party II, 2012-NMSC-026, 13, 283 P.3d at 859 Here there are accordingly two straightforward dispositive questions the Court needs to answer: First, are the requested records public records subject to disclosure under IPRA? (Which under the analysis of the Santa Fe Reporter decision they are public records). Second, if they are public records, does a privilege or exception to production for privacy apply?
IPRA defines public records broadly as all documents, papers, letters, books, maps, tapes, photographs, recordings and other materials, regardless of physical form or characteristics, that are used, created, received, maintained or held by or on behalf of any public body and related to public business, whether or not the records are required by law to be created or maintained. NMSA 1978, 14 2 6(F). That broad definition applies here. Councilor O Leary has asserted, ipse dixit, that she has privacy interest in preventing from disclosure her discussions as an elected county councilor, about county council business, from a person she has slanderously accused of sending her an email harshly critical of her performance as a councilor as a threat, under a guise of personal privacy. Email about public business are public records. Councilor O Leary cannot make them private merely by declaring them so. Such records, regardless of physical form or characteristics, that are used, created, received, maintained or held by or on behalf of any public body and relate to public business are subject to disclosure under IPRA. NMSA 1978, 14 2 6(F). Councilor O Leary cites no authority to support her position that she may maintain a privacy interest in her communications as a public official about matters of public business. IPRA provides for eight exceptions to this definition, which further refine the definition of public record and highlight the broadness of the basic definition reflecting the general presumption in favor of public access to records. Edenburn v. New Mexico Dep t of Health, 2013- NMCA-045, 17, 299 P.3d at 429. See also Las Cruces Sun News, 2003 NMCA 102, 11, 76 P.3d 36 ( Each inquiry starts with the presumption that public policy favors the right of inspection. ). None of the exceptions to the definition of public records or to the duty of disclosure applies here. Because the records Mr. Brenner has sought are unquestionably public records, they must be disclosed unless there is a statutory, constitutional, or court-recognized exemption. Here, there are no such exemptions. Councilor O Leary and Los Alamos County must therefore disclose the records.
The New Mexico Legislature, recognizing some tension between the need to provide transparency in government and to protect individual privacy, has exempted protected personal identifier information from disclosure pursuant to IPRA. Under the statute: E. protected personal identifier information means: (1) all but the last four digits of a: (a) taxpayer identification number; (b) financial account number; or (c) driver s license number; (2) all but the year of a person s date of birth; and (3) a social security number. NMSA 1978, 14-2-6(E). See also New Mexico Inspection of Public Records Act Compliance Guide, Provided by the Office of the New Mexico Attorney General ( NMAG IPRA Compliance Guide ) at 23. Emails unilaterally designated to be private correspondence by a public official do not fall under any of the enumerated categories and are not protected. Plaintiff acknowledges that there is one Court of Appeals case that suggests that an agency may redact certain personal information before producing a record. Specifically, the Court of Appeals in Cox v. New Mexico Dep t of Pub. Safety stated: We recognize that the citizen complaints in the present case may contain personal information about the citizen complainant such as home address, phone number, or the citizen's social security number. This information is not directly related to the complaint submitted by the citizen but is instead sensitive personal information related to the citizen complainant. In light of the advent of identity theft and other abuses associated with the release of this type of personal information, DPS should bear in mind that the release of this information might lead to substantial harm to the citizen complainant. Because the personal information of the complainant is not necessary to the public s inspection of the substance of the complaints, DPS should consider redacting such personal information prior to permitting public inspection of the documents. See
14 2 9(A) (stating that [r]equested 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 ). Cox v. New Mexico Dep t of Pub. Safety, 2010-NMCA-096, 30, 148 N.M. at 941, 242 P.3d at 508. Cox, however, was decided in 2010, and subsequent developments in statutory and case law have invalidated this dictum from Cox. In 2011, the Legislature considered the question of what personal information should or could be redacted from public records. During the Regular Session, the Legislature ultimately passed, and the Governor signed, amendments to IPRA, including the current provisions regarding personal identifier information. With the 2011 amendments to IPRA, the Legislature made a considered decision to strike a balance between the protection of personal information in public records and the presumption of transparency and access. The compromise that emerged resulted in exclusions only for certain parts of financial numbers, tax identification numbers, driver s licenses, and dates of birth, and all of the social security number. Addresses, email addresses, and names were not included in the list of exceptions. NMSA 1978, 14-2-6(E). Some of the debates surrounding the 2011 legislation are encapsulated in the Fiscal Impact Report prepared during the deliberations on the bill that eventually passed and became law. The Cox dicta about redacting addresses simply has no viability given the significant change to the IPRA statute that occurred in 2011. The New Mexico Legislature found that the balance should tilt in favor of public access. In addition to legislative action, the New Mexico Supreme Court issued a landmark decision in 2012 that invalidates the dicta from Cox regarding redaction of addresses. That decision was Republican Party II, which stated, among other things: This right [to inspect public records] is limited only by the Legislature s enumeration of certain categories of records that are excepted from inspection. Republican Party II, 2012 NMSC 026, 13, 283 P.3d 853. The Supreme Court
in Republican Party II repudiated the rule of reason which allowed the Court s to craft exemptions to IPRA based on public policy and articulated the rule which courts must now follow. Namely, Courts must restrict their analysis to whether disclosure under IPRA may be withheld because of a specific exception contained within IPRA, or statutory or regulatory exceptions, or privileges adopted by this Court or grounded in the constitution. Republican Party of New Mexico v. New Mexico Taxation and Revenue Department (Republican Party II), 2012 NMSC 026, 16, 283 P.3d at 860. The dicta from Cox therefore has no application here. Under the governing version of IPRA and the Court decisions interpreting it, there is no exception to IPRA that would allow the redactions or withholding of documents that Councilor O Leary proposes. Moreover, the applicable standards are not new, as the Supreme Court overruled decision applying the rule of reason in 2012. Councilor O Leary therefore does not have any basis, good faith or not, for refusing to respond fully to Mr. Brenner s IPRA request. This analysis was confirmed by Judge Reynold s in his decision in Dunn v. NMDGF attached hereto as EXHIBIT B. CONCLUSION Because Councilor O Leary s emails in question relate to either the public business of the Rec Bond under consideration as the public business of Los Alamos County, or to the public business of the official capacity correspondence Mr. Brenner transmitted to the member of the Los Alamos County Council, and are not subject to any enumerated exception to IPRA, those documents should have been produced and Councilor O Leary is engaged in violating IPRA, obstructing Los Alamos County from fulfilling its statutory responsibility and is purposefully abusing the situation to harass Mr. Brenner in an attempt to interfere with his First Amendment rights. This Court should require the immediate production of the documents to Mr. Brenner.
Respectfully submitted; WESTERN AGRICULTURE, RESOURCE AND BUSINESS ADVOCATES, LLP /s/ A. Blair Dunn A. Blair Dunn, Esq. Attorney for Plaintiffs 400 Gold Ave SW, Suite 1000 Albuquerque, NM 87102 (505) 750-3060 abdunn@ablairdunn-esq.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that on March 1, 2018, I filed the foregoing via the New Mexico E-filing system causing all parties of record to be served electronically. /s/ A. Blair Dunn A. Blair Dunn, Esq.