AG decides against appealing records-law ruling
Decision promises to give bite to Inspection of Public Records Act by allowing fines of up to $100 a day
Attorney General Hector Balderas seemed poised to appeal after a state court ruled against his office last month in a lawsuit over New Mexico’s open-records law.
But amid mounting concerns from advocates of government transparency that he could undermine what they viewed as a big win for the public’s right to know, Balderas ruled out an appeal late Wednesday.
The ruling by the state Court of Appeals promised to give bite to the Inspection of Public Records Act by allowing fines of up to $100 a day when agencies improperly withhold documents requested under the statute.
The case began with Marcy Britton, an animal rights activist who objected to then-Attorney General Gary King’s Animal Cruelty Task Force raiding Hispanic ranches on the supposition it would find cockfighting rings. The raids, carried out by many uniformed police officers and even a helicopter in one instance, usually turned up no cockfights.
But the raiders often killed all the roosters, hens and chicks they found, claiming the birds might have been raised on steroids and could contaminate the food chain. Britton said King’s task force operated like a vigilante group that steamrolled ranchers without evidence.
Britton found years later that Democrat King’s office had withheld mounds of documents that fell under her request for documents. Britton sued and the appeals court agreed with her that King’s office wrongly withheld the records.
The Inspection of Public Records Act says a court can impose fines of up to $100 a day on a
government agency when it does not properly explain why records have been withheld.
State District Judge C. Shannon Bacon, who first heard the case, said those penalties did not apply in this case. Under Bacon’s interpretation, those penalties only apply when a government agency fails to respond to a request for records by deadlines set under the law.
By that argument, an agency could withhold records but would not risk any sort of financial penalty under this section of the law so long as it did not outright deny a request.
In its opinion last month, a three-judge panel of the appeals court said that would leave “no incentive for a public body to do anything more than provide a perfunctory ‘response’ to a request no matter how incomplete and inadequate.”
Appellate Judge J. Miles Hanisee wrote that would amount to no response at all. He was joined in the ruling by Judges Julie Vargas and Linda Vanzi, who wrote her own concurrence.
The judges said the Attorney General’s Office can be on the hook for that $100-a-day penalty in this case because it neither turned over all the documents Britton had requested nor provided her with a good explanation why it did not.
Transparency advocates such as the New Mexico Foundation for Open Government praised the appeals court’s decision as clarifying the financial penalties under the law.
Balderas, too, publicly praised the decision and said he would help craft legislation to increase penalties for violating the openrecords law. But the Attorney General’s Office also filed this week for an extension of the deadline to take the case to the state Supreme Court.
A spokesman initially said Wednesday that the attorney general “is not committed to an appeal and is only evaluating whether there is a need for the Supreme Court to clarify the decision’s future application and enforcement.”
As The New Mexican prepared to go to publish a story about the filings, however, the Attorney General’s Office said Balderas had “made a decision that he is committed to not appealing.”
The office maintained its position on the case had not changed and that filing with the state Supreme Court was merely a formality.
Still, the case had been left unresolved earlier in the week after talks between Britton and the Attorney General’s Office.
“We’re hoping that during the period of the extension we will be able to persuade that attorney general it would be a terrible mistake to try and reverse a decision that does nothing more than implement a provision of the Inspection of Public Records Act,” John Boyd, the lawyer representing Britton, said earlier Wednesday.
The fines could add up to a sizable award. Britton said the Attorney General’s Office withheld documents from her without explanation for 1,760 days.
But without these sorts of fines, she said, “there’s no reason for a government agency to comply with the law.”