Open government advocates welcome court ruling

July 31, 2012 • State News

SANTA FE, N.M. (AP) — Citizens have a right to access public records kept [auth] by an independent contractor on behalf of state or local governments in New Mexico, the state Court of Appeals ruled in a decision welcomed by open government advocates.

The court’s ruling is important for preserving government transparency, particularly in an era when governments are privatizing many public services, Dolph Barnhouse, a lawyer for the New Mexico Foundation for Open Government said Monday.

At issue in the case was the reach of one of New Mexico’s main governmental sunshine laws, the Inspection of Public Records Act.

“It basically says that cities can’t avoid IPRA by just contracting out everything they do as a city government,” Barnhouse said of the ruling.

The court issued the decision last week in a case involving the city of Truth or Consequences and a nonprofit corporation that operated a public access cable channel for the community.

Video recordings of city commission meetings, which were made by the contractor to show on the cable system, are subject to disclosure under state law, the court said in reversing a district judge in Sierra County who had decided the recordings were not public records. The court said the cable system contractor was the “functional equivalent of a public agency in this case.”

Barnhouse said the public records law would have been “gutted” if the Appeals Court had agreed with the judge in denying access to the recordings.

“You always want to assume that elected officials do the right thing, but it gets pretty tempting if you’re doing something that you don’t think the public is going to like to just contract that out and then say, ‘You the public don’t have a right to see any of this because it’s in the hands of a private party and not the government.'” Barnhouse said.

The court outlined standards for judges to follow in determining whether documents and other materials in the control of a government contractor are public records subject to disclosure under state law.

The Inspection of Public Records Act broadly defines public records and includes materials relating to public business that are held “on behalf of any public body.” However, no appellate court in New Mexico previously had provided guidance on handling records held by governmental contractors.

The city and the New Mexico Municipal League, which filed written arguments with the court, contended that the public records law shouldn’t apply when government contracts out services and there’s no provision in their operating agreement to require the contractor to keep records on behalf of the government. The court rejected that approach.

“Today, traditional public functions such as fire protection, transportation, jails, after-school programs, and health care are routinely delegated to private entities — or privatized — for a variety of reasons. To allow such entities to circumvent a citizen’s right of access to records by contracting as the city and NMML suggest would thwart the very purpose of IPRA and mark a significant departure from New Mexico’s presumption of openness at the heart of our access law,” the court said in an opinion written by Judge Linda Vanzi.

Although the case involved a city, the ruling will apply to the state and local governments in New Mexico.

The city was sued by a community activist, Deborah Toomey, after she unsuccessfully requested in 2009 the copies of recordings of city commission meetings and a government workshop on truck traffic. The recordings had played on the public access cable channel, but the contractor routinely deleted old recordings from its computer when preparing to download the video of a new meeting.

The Appeals Court said Toomey was entitled to fees and legal costs because she won her lawsuit to enforce the public records law, and it sent the case back to the district court to determine how much she should receive.

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