STATE OF NEW MEXICO COUNTY OF BERNALILLO SECOND JUDICIAL DISTRICT FILED IN MY OFFICE DISTRICT COURT CLERK 12/10/2015 4:31:25 PM James A. Noel Janet Ashley MUNAH GREEN Plaintiff, v. No. D-202-CV-2015-05680 CITY OF ALBUQUERQUE, Defendant. FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS MATTER came before the Court for trial on November 20, 2015, with attorneys Ahmad Assed and Richard J. Moran representing the Plaintiff, and attorney Kevin Morrow appearing for the Defendant, and having considered the evidence presented at the trial, the pleadings and arguments of counsel, the Court hereby enters the following findings of fact and conclusions of law: I. Findings of Fact 1. Plaintiff filed a complaint on July 10, 2015 to enforce the New Mexico Inspection of Public Records Act. 2. On March 22, 2015, Plaintiff s 17 year old son, Jaquise Lewis, was shot and killed by a presently unknown person at the Los Altos Skate Park in Albuquerque, New Mexico. 3. Albuquerque Police Department ( APD ) personnel arrived on the scene and conducted a criminal investigation during which they discovered that a private citizen at the park filmed various incidents, including a scene in the darkness of the shooting of at least one firearm. 1
4. On April 10, 2015, Plaintiff, through her counsel, made a written request in accordance with NMSA 1978 14-2-8(A) of the Inspection of Public Records Act ( IPRA ) to the Defendant, through the Albuquerque Police Department ( APD ) Records Custodian/IPRA Manager, Mr. Reynaldo Chavez. This written request was admitted by stipulation as Plaintiff s Exhibit 2. 5. Plaintiff s Exhibit 2 contains nine (9) requests for public records associated with the events surrounding the shooting, but also past criminal events relating to Los Altos Skate Park. 6. Specifically, Plaintiff sought through the IPRA request: i. Any and all police reports, written or otherwise, pertaining to the fatal shooting of Jacquise Lewis that occurred March 22, 2015; ii. Any and all recordings, transcripts of recordings, or call logs of 911 calls made in connection with Jacquise Lewis s death made on March 22, 2015. This includes all calls made before, during, and after his fatal shooting; iii. Any and all unedited and unredacted videos taken at the scene of Jacquise Lewis s shooting. This includes and all lapel camera videos, as well as any and all videos taken by civilian witnesses which were either provided to or confiscated by APD; iv. Any and all audio recordings or transcripts of recordings made at the scene of Jacquise Lewis s shooting. This includes, but is not limited to belt recorders or belt recordings of officers on the scene; v. A comprehensive list of names of all APD officers who were at the crime scene of Jacquise Lewis s shooting, including their respective ranks. This includes rosters, log-in lists or CAD printouts for officers that arrived on scene; vi. Copies of all audio recordings or transcripts of audio recordings from police band radio stations made on March 22, 2015. This includes but is not limited to those of police broadcast station Southwest Air or Southwest Radio ; 2
vii. Any and all documents for calls related to police service to the Los Altos Skate Park located at 10401 Lomas NE from January 1, 2010 to present; viii. Any and all police reports involving the Los Altos Skate Park located at 10401 Lomas NE from January 1, 2010 to present; ix. Any and all phone calls made to the City of Albuquerque s emergency 911 involving the Los Altos Skate Park located at 10401 Lomas NE from January 1, 2010 to present. 7. On April 13, 2015, Mr. Reynaldo Chavez, the designated APD records custodian/ipra Manager, acknowledged receipt to Plaintiff s IPRA request, informing Plaintiff Please be advised we are reviewing your request to determine what public records are responsive and whether any exception to their production apply. We will continue our review and contact you prior to the expiration of fifteen (15) days from the receipt of your request. See Plaintiff s Exhibit 3. 8. On April 27, 2015, Mr. Chavez sent an email correspondence to Plaintiff stating Please be advised upon further review of your IPRA request, we have determined we require additional time to process your request. The department respectfully requests an additional reasonable period of time to complete our continuing search, and potentially necessary review and redaction of privileged and exempted content. See Plaintiff s Exhibit 4. 9. On May 1, 2015, Plaintiff sent an email and written correspondence to Mr. Chavez. See Plaintiff s Exhibit 5 & 6. 10. Plaintiff s Exhibit 6 is a letter addressed to Mr. Chavez that expresses concern with APD s failure to produce the public records sought on April 10, 2015. 11. Specifically, this letter addressed the Defendant s failure to comply with NMSA 1978 14-2-10, as Plaintiff contended in this letter that the statute states that [i]f 3
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. Here your communication provides no timeframe as to when the records will be available. Instead you state my office will receive an email as soon as these documents become available for inspection. 12. Mr. Chavez was relieved of his position as records custodian and IPRA manager at some time between April 27, 2015 and May 1, 2015. 13. Mr. Chavez testified that he did not receive or review this May 1, 2015 correspondence, as he was no longer employed by the Defendant. 14. After April 27, 2015, the acting APD records custodian/ipra Manager, Javier Urban testified to receiving and reviewing this May 1, 2015 correspondence. 15. Mr. Urban testified that at the inception of his assumption of the Office of APD Records Custodian, he had met with officials in the City of Albuquerque s Legal Department, as well as APD Sergeant Thomson. 16. On May 8, 2015, APD held a press conference and released 13 highly selective screen shots from a cell phone video taken at the Los Altos Skate Park on March 22, 2015; the photos were released in anticipation of identifying more witnesses or suspects to be interviewed or otherwise investigated. 17. On or before June 11, 2015, APD Sergeant Elizabeth Thomson advised Mr. Urban that the release of the cell phone video and other documents related to the Los Altos shooting could hinder the active and ongoing criminal investigation. 4
18. In the latter part of April through the early part of May, 2015, Mr. Urban testified that at that time it was decided that Plaintiff s entire April 10, 2015 IPRA request would be denied 19. According to Mr. Urban, the basis for the denial would be that all of the records sought by Plaintiff would be excepted from disclosure under the law enforcement exception of NMSA 1978 14-2-1 (A)(4). 20. Mr. Urban testified that the decision to deny Plaintiff s request was made by attorneys in the City Legal Department as well as by Sergeant Thomson; Mr. Urban did not believe he had discretion to act contrary to the wishes of APD or the City Legal Department. 21. Defendant provided Plaintiff with a denial letter on June 11, 2015. See Plaintiff s Exhibit 7. 22. Plaintiff s Exhibit 7 is an email addressed to Plaintiff s counsel that states, [t]his email will acknowledge completion of your public records request dated April 13, 2015. There is no responsive information available related to your request. This is still an ongoing investigation 14-2-1 (A)(4). 23. Mr. Urban testified that he sent Plaintiff s Exhibit 7 to Plaintiff, and admitted that it did not describe the records sought and did not set forth the names and titles or positions of each person responsible for the denial. 24. One of the (9) nine records Plaintiff sought but denied by the City was the cell phone video recording of the shooting at Los Altos Skate Park on March 22, 2015. 5
25. Despite the denial, on May 8, 2015 the Defendant held a press conference and released thirteen (13) highly selective screen shots from the video. See Plaintiff s Exhibit 1. 26. Defendant made the video available to Plaintiff for inspection on June 22, 2015, and she viewed the video with her mother. 27. Defendant presented testimony from Detective Tara Juarez and Sergeant Thomson that the release of this video to the public would compromise APD s investigation, as both were concerned that its release would influence witnesses recollection of the event and possibly put witnesses in danger. 28. Detective Juarez agreed that this cell phone video should be made available to the public at the conclusion of her investigation. 29. Detective Juarez testified at the trial that there has been no further work done on her investigation in the past four (4) weeks. 30. Sergeant Thomson did not present any testimony as to how the production of item 5 would have impeded the investigation, other than that such information was linked to CAD reports that were otherwise, in her opinion, subject to the law enforcement exception. 31. Sergeant Thomson testified that she was able to compile a list of all APD personnel on the scene of the shooting from the CAD information. She stated that she compiled this list on her own for her own purposes. No testimony was provided as to why this list was not disclosed, or why the Defendant could not compile a similar list to provide to Plaintiff. 6
32. On November 19, 2015, the City of Albuquerque provided any and all documents related to the police service and any and all police reports involving the Los Altos Skate Park from 2010 to present, which was responsive to Plaintiff s IPRA requests numbers 7 and 8. 33. The same day, the City alerted Plaintiff s counsel that some records related to the incident dated March 22, 2015 were inadvertently released and should be returned until future determination of APD or the Court. 34. On the day prior to the trial, i.e., November 19, 2015, Defendant emailed a 20 page list of 911 calls from January 1, 2010 to April 13, 2015, relating to the Los Altos Skate Park to Plaintiff s counsel fulfilling IPRA request number 9. 35. Defendant s inadvertent disclosed to Plaintiff of some of the items it claimed to be exempt from production under the law enforcement exception essentially waived its claim of exemption. 36. On the morning of the trial, counsel for Defendant requested that the court require Plaintiff s counsel to return the documents disclosed the night before because they contained identifying information whose disclosure to the public could impede the investigation. 37. The Defendant sought judicial intervention in preventing the public disclosure of these public records. 38. The Court expressed concern that the Defendant had waived its ability to exercise its right to deem these records exempt. 39. The Court admitted the video tape of the events leading up to the shooting at the Los Altos Skate Park under seal to conduct an in camera review. 7
40. Between the date of Plaintiff s initial IPRA request, April 10, 2015, and Defendant s June 11, 2015 blanket denial sixty-two (62) days had elapsed. 41. Similarly, there are two-hundred-twenty-three (223) days between Plaintiff s initial request and the November 19, 2015 disclosure of records relating to Los Altos Skate Park that do not concern the March 22, 2015 shooting. II. Conclusions of Law 1. This Court has subject matter jurisdiction over this matter, and venue is proper. 2. The Inspection of Public Records Act provides citizens with the ability to inspect the public records of its governmental institutions and bodies. 3. Our courts recognized that [e]very citizen has a fundamental right to have access to public records. Board of Com'rs of Dona Ana County v. Las Cruces Sun- News, 134 N.M. 283, 76 P.3d 36 (2003). 4. New Mexico courts have also concluded that [t]he citizen's right to know is the rule and secrecy is the exception under Inspection of Public Records Act. Gordon v. Sandoval County Assessor, 130 N.M. 573, 28 P.3d 1114 (2001). 5. Defendant has the burden to demonstrate a reason for nondisclosure. City of Farmington v. The Daily Times, 146 N.M. 349, 210 P.3d 246, (2009). 6. Plaintiff made a timely and legally cognizable request for nine (9) distinct items under the New Mexico IPRA statute, one of which was the release of the cell phone video of the March 22, 2015 shooting. In this regard, Plaintiff has satisfied her obligation under NMSA 14-2-8(C) ( Procedure for Requesting Records). 8
7. The Defendant s primary defense in this matter was that this cell phone video of the shooting, as well as other public records relating to the March 22, 2015 shooting, fall under an exception to the IPRA statute, under NMSA 14-2-1(A)(4). 8. Defendant waived its claim of privilege or exemption under IPRA with regard to any documents it disclosed to Plaintiff in the days prior to trial. 9. Defendant cannot obtain retrieval of the records from Plaintiff once they have been released. 10. Plaintiff s Exhibit 7 did not constitute a legally cognizable denial. 11. Specifically, the IPRA statute allows governmental bodies to deny a citizen s request to inspect a public record if it falls under one of eight exceptions. 12. To reach that point, however, a governmental body must comply with IPRA s initial notification procedures. Specifically, NMSA 14-2-8(D) requires: A custodian receiving a written request shall permit the inspection immediately or as soon as is practicable under the circumstances, but not later than fifteen days after receiving a 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. The three-day period shall not begin until the written request is delivered to the office of the custodian. 13. In this matter, the Defendant acknowledged receipt of Plaintiff s April 10, 2015 IPRA request on April 13, 2015. 14. In its April 13, 2015 acknowledgement, Defendant complied with this statutory requirement, as it indicated that it would respond to the IPRA request prior to the expiration of the fifteen days required by statute. 9
15. On April 27, 2015, the Defendant sought additional time to comply, indirectly deeming the IPRA request as broad and burdensome. 16. NMSA 14-2-10 ( Procedure for excessively burdensome or broad requests ) sets out that: If a custodian determines that a written request is excessively burdensome or broad, an additional reasonable period of time shall be allowed to comply with the request. The custodian shall provide written notification to the requester within fifteen days of receipt of the request that additional time will be needed to respond to the written request. The requester may deem the request denied and may pursue the remedies available pursuant to the Inspection of Public Records Act if the custodian does not permit the records to be inspected in a reasonable period of time. 17. Thus, the Defendant complied with NMSA 14-2-10, in that it notified the Plaintiff that additional reasonable time was needed to gather the documents and conduct a review. 18. This request for additional time, however, was disingenuous, as the Defendant had made the determination, contemporaneous to this April 27, 2015 request for additional reasonable time, to deny Plaintiff s complete IPRA request. 19. Custodian Urban testified that the decision to deny this request was made by City officials within days of this April 27, 2015 letter, but the Defendant would not alert Plaintiff for forty-five days, creating the impression that the Defendant was diligently sorting through what it felt was public record and what it felt was exempt from disclosure. 20. On June 11, 2015, the Defendant provided Plaintiff with a blanket denial of the April 10, 2015 IPRA request. This blanket denial lacked a detailed description of 10
the records sought and did not set forth the names and titles of the persons responsible for the denial, as required by statute. 21. According to Custodian Urban, despite the fact that the June 11, 2015 denial is drafted by him, he was not responsible for the denial, as such a decision came from City Legal and APD. 22. Defendant has failed to demonstrate how each, individual request made on April 10, 2015, the law enforcement exception broadly applies. 23. Under NMSA 14-2-1(A)(4), law enforcement records that reveal confidential sources, methods, information or individuals accused but not charged with a crime, are exempted from IPRA. Examples of such law enforcement records include evidence in any form received or compiled in connection with a criminal investigation or prosecution by a law enforcement or prosecuting agency, including inactive matters or closed investigations to the extent that they contain the information listed in this paragraph. 24. Defendant (APD officers) provided still shots of video tape recording of the skate park incident during the press conference, and on June 22, 2015, in a closed session, Defendant showed that video in full to Plaintiff and her mother so that they could view and inspect the video. 25. Although copies of the video tape were not provided to Plaintiff, this partial disclosure complied with the spirit of IPRA in that the requester was allowed to inspect the full video tape recording. 26. Defendant (City Attorney s Office) provided the bulk of the written disclosures leading up to and on November 18 and 19, 2015, some of which Defendant later 11
sought to have returned to the City based on a claim of error in disclosing privileged or exempt investigatory records. 27. The full extent of the November 19, 2015 disclosures was not entirely clear from the evidence at the trial. 28. The written disclosures on the eve of the trial complied in large part with the City s obligation to disclose under IPRA, but the extent of that disclosure is uncertain and the disclosure was long overdue. 29. Defendant should complete its IPRA disclosure with regard to any documents that have not been disclosed to date. 30. Defendant s allegedly accidental disclosure of the documentary submission on November 19, 2015, which it now seeks to be returned, essentially resulted in a waiver of the privilege or exemption under IPRA, and it discredits the City s claim of privilege/exemption as criminal investigatory records. 31. Because the video of the Los Altos Skate Park incident was taken by a private citizen, the claim of privilege or exemption by the City is questionable. 32. Given the release of the still shots of the video and the fact the Defendant allowed Plaintiff and her mother to review the private citizen video essentially resulted in a waiver of a continued claim of privilege or exemption of the video. 33. Defendant shall release a copy of the video forthwith. 34. IPRA recognizes that there may be requests for information that contain exempt and nonexempt material. Nothing in IPRA indicates that a governmental body can deny a citizens request for information because some of this information may be exempt. 12
35. In this matter, the Defendant willfully ignored Plaintiff s otherwise lawful requests for public records. 36. It took Plaintiff initiating a civil complaint to get this information, and Plaintiff is entitled to the remedies associated with enforcement of IPRA. 37. Because the Defendant has not provided a statutorily sufficient written denial, they are entitled to those damages outlined in NMSA 14-2-11(C), which states: A custodian who does not deliver or mail a written explanation of denial within fifteen days after receipt of a written request for inspection is subject to an action to enforce the provisions of the Inspection of Public Records Act and the requester may be awarded damages. Damages shall: (1) be awarded if the failure to provide a timely explanation of denial is determined to be unreasonable; (2) not exceed one hundred dollars ($100) per day; (3) accrue from the day the public body is in noncompliance until a written denial is issued; and (4) be payable from the funds of the public body. 38. The Plaintiff should be awarded statutory damages (of up to $100 per day) against the City for the period from April 10, 2015, until ultimate disclosure of records was made. 39. The Court will impose this penalty given the extent to which Defendant ignored Plaintiff s otherwise lawful requests. 40. Similarly, Plaintiff is entitled to damages under NMSA 14-2-12, which allows this Court to issue a Writ of Mandamus ordering the production of these public records, as well as the imposition of attorney s fees, costs, and any actual damages suffered by the Plaintiff; a Writ of Mandamus shall issue to require disclosure of any remaining documentary records not yet disclosed. 13
41. Plaintiff has not presented any evidence to support her claim for actual damages, and so the Court will not award her any actual damages associated with bringing this action. 42. Plaintiff is entitled to be reimbursed the costs of bringing this matter, as well as attorney s fees for services secured to protect her interest in disclosure, as well as recovery of costs. 43. Plaintiff s attorney is ordered to submit an affidavit detailing the hours claimed for counsel (in 10ths of an hour) (only one attorney s time will be allowed during hearing/trial time), together with a description of services provided, an indication of the value of benefit obtained, an explanation of the complexity of the case, the ability, reputation, skill and experience of the attorney in the legal community. 44. Any unproduced records or materials do not survive the law enforcement exception of IPRA after the extensive waivers that occurred in this proceeding. 45. Therefore, upon request of Plaintiff for any undisclosed records, the Court will issue an immediate Writ of Mandamus ordering Defendant to fully produce what was sought by Plaintiff s April 10, 2015 IPRA request. 14