Court nixes damages against NM attorney general

April 27, 2013 • State News

SANTA FE, N.M. (AP) — The state Court of Appeals has overturned damages against Attorney General Gary King for withholding public records requested by a lawyer handling a pay discrimination case against King.

The court ruled Thursday that a district judge in Albuquerque failed to provide evidence to support [auth] the $100-a-day damages against the attorney general in 2011. However, King still faces the prospect of damages if the case goes back to the judge for a revised order.

The damages were to accrue until King provided records requested by Albuquerque lawyer Daniel Faber, who estimated Friday that they had reached about $61,000 by the time all the materials were released.

King spokesman Phil Sisneros said the attorney general’s office calculated the damages to be about $15,300, and that it doesn’t think Faber is entitled to damages for the time “between the first and last production” of records.

It’s uncertain what will happen next in the lawsuit. One possibility is that District Judge Beatrice Brickhouse will have a chance to redo her order and award damages with the legal findings that the Appeals Court said were missing. Farber also has an option of asking the state Supreme Court to review the Court of Appeals decision.

Faber said he was reviewing the decision and couldn’t comment on it. Sisneros said the attorney general hasn’t decided on what step to take, including whether to ask the Court of Appeals to reconsider its ruling.

The New Mexico Foundation for Open Government said the ruling reinforces New Mexicans’ rights to public records and ensures that courts will punish government agencies for violating the Inspection of Public Records Act.

“It should be a reminder to every public official that keeping public records secret can be a very expensive mistake,” said Gwyneth Doland, the foundation’s executive director.

In its 3-0 ruling, the Appeals Court made clear that state law requires judges to award damages to people whose written requests for public records are denied when they win lawsuits to enforce the Inspection of Public Records Act. The court said “those damages are not subject to further restrictions.”

The court said the judge needed to indicate whether the damages were “compensatory” to make up for losses suffered by Faber or whether they were “punitive” and meant to penalize the attorney general for not following the law.

The district judge’s determination that King violated the Inspection of Records Act was not an issue in the Appeals Court case.

“The district court must enter findings supporting any award of compensatory damages so that we may, on review, know the basis for such damages and may then measure them against any award of punitive damages,” the court said in an opinion written by Chief Judge Roderick T. Kennedy.

The court rejected an argument by the attorney general that the $100-a-day damages were improper.

Under the law, there is a $100-a-day penalty when a government agency fails to comply with deadlines for responding to a records request. But the court said that limit on penalties doesn’t apply when someone wins a lawsuit because records were improperly withheld.

The court’s ruling involves a 2010 public records request by Faber, who represented three female staff lawyers who sued King in federal court for alleged pay discrimination. When the federal case was put on hold, Faber filed a public records request for employment records he wanted for the lawsuit. An equal pay claim by one of the lawyers is pending but settlements were reached by the other two attorneys.

King complained to a federal court when Faber sought to use a state public records request to obtain records for the federal lawsuit.

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