Justices: Cops can’t hide behind ‘ongoing investigation’ label

New Mexico’s Inspection of Public Records Act makes clear the public is entitled to the greatest amount of information possible about its government and guarantees everyone access to public records. The law, commonly known as IPRA, has become a key tool not only for journalists but for citizens, allowing them to access records such as police reports and 911 tapes, government contracts and emails of public-sector employees.

Its transparency is a key mechanism for keeping government accountable.

But it is not without safeguards. Law enforcement records exempt from IPRA include those that “reveal confidential sources, methods, information or individuals accused but not charged with a crime.” Unfortunately, for years many N.M. police departments have taken that a step too far, asserting police reports cannot be made available due to an “ongoing investigation.”

That’s why a New Mexico Supreme Court ruling last week is so significant. It finally puts an end to the “it’s under investigation” excuse while preserving the confidentiality of police sources and methods and uncharged individuals.

The Albuquerque Journal, Santa Fe New Mexican, Rio Grande Sun and New Mexico Foundation for Open Government attempted to resolve the dispute in a 2005 settlement with the New Mexico Department of Public Safety, but police compliance was lacking from the outset. Many police departments continued to deny IPRA requests for reports citing an ongoing investigation, while other cities said they weren’t subject to the settlement and the agreement only applied to DPS.

The unanimous state Supreme Court ruling July 14 should put an end to that. The court ruled IPRA “does not create a blanket exception” allowing law enforcement agencies to withhold police records simply because of an ongoing criminal investigation. For anyone interested in keeping their law enforcement agencies responsible to the public that pays their salaries, it was Christmas in July.

It was also a victory for Andrew Jones, the brother of James Boyd, who was shot and killed by Albuquerque Police Department officers after a standoff in the Sandia foothills in March 2014. Jones had asked DPS to release records of its investigation, but his request was denied, partly because the FBI requested the records not be released because of its ongoing investigation. Jones sued DPS, and the Foundation for Open Government and the ACLU joined with an amicus brief. The district judge sided with the department, as did the N.M. Court of Appeals. But the final word from the state Supreme Court overruled both courts, finding Jones should have been granted summary judgment because there isn’t an “ongoing investigation” exception under IPRA. Our justices also ruled there is no exception for producing records if federal agencies are also investigating a crime.

“Instead of focusing on whether there was an ongoing investigation, our Legislature was concerned with the specific content of the records,” Justice Barbara J. Vigil wrote in the opinion.

As the exemption allows, police reports sometimes contain information about confidential sources and methods or individuals accused but not charged with a crime. But rather than take the time to redact that information, many police agencies have denied the requests in full. The Legislature and governor amended IPRA in the wrong direction in 2019, requiring the redaction of identifying information of alleged victims and non-police witnesses in police records related to several crimes, including sexual assault and stalking. Like the ongoing investigation excuse, the amendment sounds good until you realize it makes it easier to cover up poor police work.

The Supreme Court ruled law enforcement records containing both exempt and nonexempt information cannot be withheld “in toto.” Agencies are now required to separate out the exempt information and release the nonexempt information for public inspection. While that may mean an additional expense for police agencies to do the parsing, it’s a good investment that will get the public more timely access to records related to public safety and help keep our law enforcement agencies transparent and accountable.