Insurance covering some IPRA violations

Open government advocates concerned law is being ignored

Local and state government agencies paid more than $1.2 million in penalties and legal fees in 2019 for failing to follow the state’s Inspection of Public Records Act, according to the New Mexico Foundation for Open Government.

But some of those legal fees and some of the penalties didn’t come out of the local government or state agency budgets. Instead, they were covered by insurance — something that has open government advocates concerned.

“By covering the costs for withholding documents, insurance gives those entities no incentive to comply with the law,” Santa Fe attorney Daniel Yohalem said in an interview. “They are withholding too many records because they figure the cost is free.”

Melanie Majors, director of the Foundation for Open Government, said there “is a deterrent when the agency knows it has to pay for withholding records,” but she said the organization’s board has just recently started to discuss the matter.

IPRA cases are brought by news media, lawyers and members of the general public who have a grievance with government — or just want to have a question answered. Defendants range from police departments to school boards to state agencies.

Violating IPRA can be costly. In recent years, for example, state and local governments have settled public records lawsuits for $400,000 and $360,000.

Legal fees paid to attorneys who bring the lawsuits — IPRA provides that a successful petitioner in an IPRA case can recover

lawyer fees — make up a big chunk of those settlements.

But local governments and state agencies also face penalties of up to $100 a day in damages for not complying with the Inspection of Public Records Act.

Violations can include absolute refusal to turn over documents to failure to meet the timeline requirements set out in IPRA for government records custodians to follow in producing records.

Judges have considerable discretion in determining damage awards for non-compliance.

A district judge in Santa Fe recently ruled that the Santa Fe Police Department was in violation of IPRA when it failed to turn over information about rape kits to a former employee, Michele Williams.

District Judge Bryan Biedsheid ordered the city to pay Williams $75 a day for the 57 days it failed to turn over the records for a total of $4,275. The department also is on the hook for Williams’ legal fees.

Not typical case

Albuquerque attorney Phillip B. Davis says IPRA “is unlike typical liability cases that may involve car accidents or property damage, because when it comes to records, government officials make a decision on whether or not to comply with the law.”

Davis said insurance coverage may assure that the person who was victimized by wrongfully withholding records gets paid, but it also allows government officials to ignore the law if they want.

Davis is representing a client who successfully sued Rio Rancho Public Schools for records in a personnel case. His client wanted prior settlements by the district, which refused to turn them over on the basis that they were included in personnel files.

The judge said they should have been produced.

Damages and attorney fees incurred by Davis’ client for the IPRA portion of the case could exceed $100,000 and would be covered at least in part by the Public School Insurance Authority.

“The law is fairly simple — government records are public unless otherwise specified by law,” he said. “Those exceptions are fairly limited.”

There have been several large settlements in IPRA lawsuits over the past two years.

In one case, the city of Jal agreed to pay more than $400,000 to the community’s weekly newspaper, the Jal Record, after a bitter dispute over the city’s failure to turn over records.

The paper sought records concerning an oil field disposal well located over an aquifer that some thought would supply drinking water to the small southeastern New Mexico city.

City officials said in 2019 that the settlement was not covered by insurance and would come out of the city’s budget.

City officials said they were concerned that it would cost more money to take the case to trial.

In another case, the state agreed to pay $360,000 to cover the legal fees of the Santa Fe Reporter after a long fight over public records with then-Gov. Susana Martinez.

The weekly paper filed a lawsuit in 2013 claiming Martinez failed to produce public records and discriminated against the paper by cutting off its access to basic information from her office.

A judge ruled in favor of the newspaper on the IPRA claims, finding that the Martinez administration should have turned over emails and other public records it requested. But the judge denied the discrimination claim, setting off a lengthy legal battle over the collection of attorney fees that was finally settled by Gov. Michelle Lujan Grisham’s administration.

The costs of the Santa Fe Reporter case were covered by the state’s Risk Management

Division, which handles legal claims against the state.

The division covers legal fees and most statutory damages in IPRA cases but doesn’t cover fines or punitive damages.

In 2019, the division added a specific requirement for agencies to contribute from their budgets to settlements involving IPRA on a case-by-case basis determined by the division director.

Coverage varies

Government insurance carriers for public schools and local governments began offering specific coverage for public records lawsuits in the last five years.

The Association of Counties, the Municipal League and the Public Schools Insurance Authority all offer different types of IPRA coverage to their members. The city of Albuquerque is self-insured.

Each insurer sets its own limits on how much it will cover in the way of claims, and some do not cover penalties.

The New Mexico County Insurance Authority offers insurance to pay up to $75,000 in plaintiff’s attorney costs and fees if awarded in a settlement or by a judge’s order.

But Taylor Horst, risk management director of the authority, said in an email that it does not provide coverage for any penalties due to an IPRA violation.

The Municipal League began insuring IPRA cases about three years ago and sets policy limits from $1 million to $2.5 million. The Public Schools Insurance Authority initially offered IPRA insurance of up to $20,000, but that has increased to $500,000.

“We’ve offered coverage over the last few years,” said Richard Valerio, authority director. “It is not a big cost item; there are a handful of cases each year.”

In a case settled in 2019, the Attorney General’s Office agreed to pay $265,000 in damages and attorney fees to settle a longrunning case brought by an animal welfare activist.

According to the settlement, the AG’s Office under then-Attorney General Gary King improperly withheld hundreds of documents sought by activist Marcy Britton, who filed her initial IPRA request in 2009.

Albuquerque attorney John Boyd represented Britton and pointed out that the AG’s Office is tasked with ensuring that public agencies follow IPRA.

“It was not a pretty picture for them to be so evasive,” Boyd said.

Public pays

Under the Inspection of Public Records Act, most state records are open to public inspection unless exempted by state law. Exemptions range from letters of reference and opinions in personnel files, to medical information to confidential law enforcement records.

A.J. Forte of the Municipal League said there aren’t that many IPRA lawsuits.

“We are really doing a lot of loss control,” Forte said. “We teach an IPRA class for elected officials. We tell them how much it can cost and stress following the law.”

Forte said his group tells local public officials to call the league if they have questions.

“They seem to be receptive, especially after we tell them some of the horror stories,” he said.

Public officials also call the New Mexico Foundation for Open Government for advice on public records and open meetings, director Majors said.

During the COVID-19 pandemic, the foundation has offered online education programs. (www.NMFOG.org) and the Attorney General’s office has an online guide (https://www.nmag.gov/ipra.aspx).

“These are the public’s records, and they have the right to access them,” Majors said.

Following the law is easier and cheaper than a legal fight, she said.

“The public pays either way,” Majors said. “Either out of its budget or through insurance premiums.”