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Britton v. Office of Attorney General of New Mexico

Court of Appeals of New Mexico

September 24, 2018

MARCY BRITTON, Plaintiff-Appellant,


          Freedman Boyd Hollander Goldberg Urias & Ward, PA John W. Boyd Albuquerque, NM for Appellant

          Fuqua Law & Policy, PC Scott Fuqua Santa Fe, NM for Appellee

          Rodey, Dickason, Sloan, Akin & Robb, P.A. Denise M. Chanez Albuquerque, NM for Amici Curiae New Mexico Foundation for Open Government



         {¶1} At issue in this appeal is the appropriate damages available to Plaintiff under the Inspection of Public Records Act (IPRA), NMSA 1978, §§ 14-2-1 to -12 (1947, as amended through 2018), when she successfully proved that the New Mexico Attorney General's Office (AGO) failed to produce all nonexempt records in response to her request to inspect public records and further failed to provide her with an explanation of why she was denied the right to inspect those records. In Faber v. King, 15-NMSC-015');">2015-NMSC-015, ¶ 1, 348 P.3d 173, decided two months before the district court ruled in this case, our Supreme Court addressed what damages are l available under Section 14-2-12 of IPRA when a public body affirmatively denies an IPRA request and it is later determined that the denial was wrongful. Faber held: that in an action brought under Section 14-2-12 to enforce a "wrongful denial," successful plaintiffs may only recover actual damages, costs, and attorney fees, but not statutory or punitive damages. Faber, 15-NMSC-015');">2015-NMSC-015, ¶¶ 15, 31, 41. Relying on Faber, the district court here reasoned that because the AGO timely provided "some responsive records" to Plaintiffs request, Plaintiffs case is a "wrongful denial" case "that proceeds under Section 14-2-12, not under Section 14-2-11." Thus, the district court ruled that Plaintiff is entitled only to actual damages, attorney fees, and costs under Section 14-2-12, and is foreclosed from recovering Section 14-2-11's statutory damages of up to $100 per day. Concluding that the district court misapplied Faber and misinterpreted the damages provisions of IPRA in a manner inconsistent with the legislation's overarching purpose, we reverse.


         Historical Facts

         {¶2} Plaintiff is a long-time animal welfare activist in New Mexico who, in 2007, learned about raids being conducted by the AGO's newly formed Attorney General's Animal Cruelty Task Force (AGACT). Among other things, Plaintiff became concerned that AGACT was engaging in "killing animals unnecessarily, inhumanely and unlawfully[.]" Plaintiff was also concerned that reports of animal cruelty that were made to the AGACT Hotline were going unanswered, and that Heather Ferguson, a private citizen who was appointed "coordinator" of AGACT, "was mishandling cruelty cases while exercising some sort of law enforcement authority derived from her status as 'coordinator' of the AGACT."

         {¶3} After writing to the AGO to express concerns regarding the hotline, Ferguson, and the failure to prosecute cases of animal cruelty and being told by the AGO that its "jurisdiction and authority [to investigate and prosecute complaints of animal cruelty] is, in fact, limited by state statute[, ]" Plaintiff sought the assistance of sheriffs, district attorneys, the FBI, and state legislators among others. Because "[n]ot one agency investigated or took any action[, ]" Plaintiff "decided to launch [her] own investigation through letters and IPRA requests directly to the AGO."

         Plaintiffs IPRA Requests and the AGO's Responses

         {¶4} In March 2009 Plaintiff began submitting requests to inspect public records related to AGACT to the AGO. Specifically, Plaintiff was "trying to find out how ordinary citizens had acquired law enforcement and dispatch authority from the AGO." On June 30, 2009, Plaintiff served the request at issue in this appeal (June 2009 request)-her fifth request in total to the AGO-in which she sought to inspect:

[a]ny and all electronic communications ... sent and/or received by or between any persons employed by or associated with the [AGO, ] including but not limited to ... Steve Suttle, ... and all persons on or associated with the Attorney General's Animal Cruelty Task Force/Hotline ..., including but not limited to Heather Ferguson[, ]... Sherry Mangold, etc. in connection to all activities ... involving in any way the above-referenced parties for the time period of July 1, 2007 through June 30, 2009[.]

         After initially informing Plaintiff on July 1, 2009, that the AGO would respond to Plaintiffs request no later than July 15, 2009, the AGO's records custodian later wrote to Plaintiff on July 14, 2009, to inform her that "[t]his request is excessively burdensome and broad and we need additional time to respond." The AGO told Plaintiff it would "gather the records into year groupings and allow inspection on an on-going basis."

         {¶5} On August 1, 2009, having not been permitted to inspect any of the public records responsive to her June 2009 request, Plaintiff wrote to Chief Deputy Attorney General Albert Lama and asked the AGO to "immediately comply with IPRA and provide all requested public records to [her] by Friday, August 14, 2009." In a letter dated August 6, 2009, Lama's assistant provided Plaintiff with the following updates regarding the AGO's efforts to respond to her request: (1) the AGO had "completed [its] search for responsive records created in 2007" and had "located no responsive records for that year"; (2) the AGO anticipated "be[ing] able to provide [Plaintiff] with records for 2008 on or before September 8, 2009"; and (3) the AGO "will then continue [its] efforts to identify and make available for inspection the responsive 2009 records." The letter further stated that the AGO "believe[s] that there are potentially 10, 000 records responsive to [Plaintiffs] request" and asked Plaintiff to provide additional specificity as to the particular records she wished to inspect. Plaintiff responded by letter on August 9, 2009, commenting that the AGO's August 6 letter had "brought to light the startling and unexpected fact that, by [the AGO's] estimation, there have been potentially 10, 000 e-mails exchanged between members of [AGACT] and staff members of the [AGO] within th[e] last year and a half." She then informed the AGO that "[b]ecause of this new information, instead of tightening the scope of [her] public records request..., [she] must now expand it to include all of the records [the AGO] mentioned."

         {¶6} On September 4, 2009, the AGO wrote to Plaintiff, informing her that "the first batch [of emails were] available and ready for inspection" and that the standard copying fee of $0.25 per page would apply. Plaintiff sent the AGO a check for $75, and the AGO provided copies of records on September 18, 2009. After Plaintiff sent another check for $19.50, the AGO provided Plaintiff with additional records on October 15, 2009, and advised her that those records constituted "the last batch of emails available for inspection[.]" In total, Plaintiff received 378 records from the AGO in response to her June 2009 request.

         {¶7} On October 17, 2009, Plaintiff wrote to the AGO, asking it to "explain the discrepancy between the 10, 000 emails that [the AGO] wrote would be responsive to [her] public records request and the 378 records that were actually provided to [her]." Plaintiff also said that she believed she had "evidence ... to support [her] theory that the [AGO] has willfully withheld approximately 9, 600 public records, includ[ing] a previously sent email that was not provided with the subject batches." She further expressed her surprise that Steve Suttle, an AGO attorney affiliated with AGACT and named in Plaintiff s June 2009 request, had recently and publicly stated at the State Humane Conference," 'Our emails are private and confidential. We are not going to release them.' "

         {¶8} Lama responded on November 9, 2009, that the AGO had advised Plaintiff that her request could "potentially produce" up to 10, 000 responsive records, "but at that time, a definite number had not yet been established." Lama informed Plaintiff that "[t]he request produced approximately 1000 emails, [of] which [Plaintiff has] been given 378[, ]" and that "[s]ome documents retrieved were duplicative or were not within the scope of [Plaintiffs] request." Lama also explained that "[o]f the volume of documents reviewed, there is a small number, relating to information subject to non-disclosure under... the law enforcement exception to [IPRA]." Lama then concluded, "[a]t this time [the AGO's] office has fully responded to [Plaintiffs June 2009] request for inspection of public records that were identifiable based on [her] request."

         {¶9} Over the next two months, Plaintiff continued to "dispute [the AGO's] assertion that [it] ... has fully complied with [Plaintiffs] request for inspection of public records." In a letter to Lama, Plaintiff explained that she believed the AGO was not in compliance with IPRA for two reasons: first, because it had not produced all responsive records to her request, and second, because it had issued a "blanket denial of records using the 'law enforcement' exception[, ]" which Plaintiff contended IPRA did not allow. On February 3, 2010, Lama sent Plaintiff a letter and "copies of documents subject to inspection for your review." Lama informed Plaintiff that "the copies provided are duplicative of what [she was] previously provided in [her] original inspection of public records request" and that "[t]his completes all records requests received by this office from [Plaintiff]." Plaintiff "continued to be convinced that the AGO had withheld many emails that were responsive to [her] request" but felt that she "was at a 'dead end.' "

         Plaintiffs Discovery of Additional Responsive Records and Filing of the Instant Action

         {¶10} Nearly two years later, in January 2012, Plaintiff served an IPRA request on the State Auditor-who, by then, had conducted his own audit of AGACT-seeking inspection of all records in the State Auditor's custody related to AGACT. Upon receiving a response to her request from the State Auditor, Plaintiff "could see immediately that there were documents within the scope of [her June 2009] IPRA request that the AGO had provided to the [State] Auditor but had withheld from [her]." For example, Plaintiff received from the State Auditor, but not the AGO, an email dated February 10, 2009, sent by Sherry Mangold to a list of recipients that included three individuals employed by the AGO's office-including Steve Suttle- with a rough draft of minutes from the January 14, 2009, AGACT meeting.

         {¶11} Also in January 2012, Plaintiff filed suit in the instant action, alleging that "[t]o date, almost two and a half years after receiving [Plaintiffs] IPRA request, the AGO has not provided all of the public documents in its possession that are responsive to [Plaintiffs] request." Through the use of depositions, Plaintiff learned that "the initial search" the AGO conducted in responding to Plaintiffs June 2009 request "was itself artificially limited and not reasonably calculated to identify many of the documents [Plaintiff] was seeking." Because Plaintiffs counsel was also counsel in separate litigation against the AGO, through which it had obtained documents from the AGO during discovery, Plaintiff additionally and by pure happenstance obtained further proof that there were "many documents" that the AGO had not provided to Plaintiff that were responsive to her June 2009 request. The AGO agreed to "run a new search of emails, with search criteria that were consistent with [Plaintiffs June 2009] IPRA request and that [the parties] believed would actually locate the documents that [Plaintiff] had originally sought through [her] IPRA request." On May 9, 2013, the AGO produced "at least 350 [emails] that were called for by [Plaintiffs June] 2009 IPRA request and that had not been produced earlier."

         Summary Judgment Proceedings and the District ...

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