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MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98
STATE OF NEW MEXICO
SEVENTH JUDICIAL DISTRICT
COUNTY OF SIERRA
STATE OF NEW MEXICO, ex rel.
DEBORAH TOOMEY, an individual,
Plaintiff,
vs.
CITY OF TRUTH OR CONSEQUENCES,
et al.,
Defendants.
No. D-0721-CV2009-98
HON. WILLIAM SANCHEZ
MOTION FOR SUMMARY JUDGMENT
Plaintiff Deborah Toomey hereby moves for summary judgment of her
complaint for enforcement of the Inspection of Public Records Act (IPRA) on
grounds that “there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” NMRA 1-056.
This motion is supported by the following Memorandum of Points and
Authorities and the pleadings and papers on file, and any oral argument the Court
allows at hearing of the motion.
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page i
TABLE OF CONTENTS
INTRODUCTION .................................................................................................... 1
SUMMARY OF PROCEEDINGS ......................................................................... 3
STATEMENT OF MATERIAL FACTS TO WHICH
THERE IS NO GENUINE DISPUTE ..................................................................11
ARGUMENT ..........................................................................................................18
A. Fundamental Right to Inspect Public Records ............................................18
B. Public Records with Reasonable Particularity ............................................20
1. Redacting exempt information from a
nonexempt public record is not the
creation of a new record. ...................................................................25
2. Providing a subset of records from a
database is not the creation of a new
record. ................................................................................................26
C. The “Cost” of Public Records .....................................................................30
D. Denial and Enforcement ..............................................................................35
CONCLUSION .......................................................................................................38
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page ii
TABLE OF AUTHORITIES
New Mexico Cases
Audette and Toomey v. City of Truth or Consequences,
Sierra County Cause No. CV-2009-159 ..............................................................21
Bd. of Comm’rs of Doña Ana County v. Las Cruces Sun-News,
2003-NMCA-102, 134 N.M. 283, 76 P.3d 36 .................................. 19, 20, 35, 37
City of Farmington v. The Daily Times,
2009-NMCA-057, 146 N.M. 349, 210 P.3d 246 ............................................3, 20
Foy v. New Mexico Educational Retirement Board,
County of Bernalillo Cause No. D 202 CV 2009 1587 .......................................18
San Juan Agric. Water Users Ass’n v. KNME-TV,
2011-NMSC-011, __ N.M. __, __ P.3d .................................................... 3, 36, 37
State ex rel. Newsome v. Alarid,
90 N.M. 790, 797, 568 P.2d 1236, 1243 (1977) ............................... 20, 26, 34, 37
Statutes and Rules
14-2-1 .................................................................................................... 18, 20, 29, 30
14-2-10 ........................................................................................................ 13, 16, 36
14-2-11 ............................................................................................................. passim
14-2-12 .............................................................................................................. 35, 38
14-2-5 ............................................................................................................... passim
14-2-6 ............................................................................................................... passim
14-2-7 ................................................................................................................ 17, 31
14-2-8 ............................................................................................................... passim
14-2-9 ............................................................................................................... passim
14-3-1 -25 .................................................................................................................29
14-3-2 .......................................................................................................................23
3-14-12 .....................................................................................................................17
Other Authorities
City Resolution 07-10/11 .................................................................................. 33, 34
Federal Privacy Act of 1974, 5 USC §552a ...........................................................1, 2
Office of the New Mexico Attorney General,
Inspection of Public Records Act Compliance Guide (6th ed. 2009) ........... 28, 31
http://dictionary.reference.com/browse/maintain ....................................................27
http://en.wikipedia.org/wiki/.csv .............................................................................29
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page iii
http://www.thefreedictionary.com/compile .............................................................28
http://www.thefreedictionary.com/create ................................................................25
http://www.thefreedictionary.com/document ..........................................................24
http://www.thefreedictionary.com/generate ............................................................25
http://www.webopedia.com/TERM/A/audit_trail.html ...........................................11
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 1
MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION
Over several months, Plaintiff watched the misrepresentation by Defendants
of the safety of social security numbers (hereinafter “SSN”) required by the Utility
Department in violation of the Federal Privacy Act of 1974, 5 USC §552a,
claiming the SSN were on cards locked in a vault every night, while hiding the
existence of a computer database containing SSN.
Knowing that the “audit log” is the first line of defense against information
theft, especially from the “inside job,” Plaintiff requested per IPRA to inspect the
Utility Department audit logs on three separate occasions: May 21, May 28, and
July 9, 2008. The request for “Utility Department audit log that details the date,
time, whom accessed and what record was accessed for all personally identifiable
information” was “reasonably particular” for Defendants to retrieve and provide
what turned out to be the ADG Utility Billing System audit log and the Application
Audit Log.
Defendants’ first IPRA response produced a memo that was nonresponsive
to the request to inspect the audit logs. Defendants’ second IPRA response was a
demand for $15,000 before inspection of the audit logs would be allowed and a
claim of burdensome. Defendants’ third IPRA response was a request for
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 2
additional time. None of the IPRA responses produced records responsive to the
IPRA requests, claimed the audit logs did not exist nor claimed an exception.
Additionally, none of the responses were statutorily compliant with the procedures
for denied requests. 14-2-11.
Meanwhile, City staff testified, during City Commission meetings, the
Federal Privacy Act was only “intended” and never enacted. In response to a local
news reporter’s questioning Defendants to justify the demand for $15,000, City
changed their reasoning and claimed “proprietary software” needed to be rewritten.
After diligently pursuing compliance to IPRA and the production of the
audit logs for more than a year, an IPRA enforcement action was filed in July
2009. On December 5, 2011, the ADG Utility Billing System audit log was
disclosed under the supervision of Plaintiff’s expert witness Gouthum Karadi. The
application audit log was not disclosed.
The May 21, 2008, IPRA request was the first Plaintiff submitted to a public
body and, in many respects, the first IPRA response by Defendants. What was
novel has now become common-place in the City of Truth or Consequences as
numerous citizens and local news reporters regularly utilize IPRA to “protect the
public from having to rely solely on the representations of public officials that they
have acted appropriately.” City of Farmington v. The Daily Times, 2009-NMCA-
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 3
057, ¶ 17, 146 N.M. 349, 210 P.3d 246. Time-and-again it is discovered that they
have not acted appropriately in the City of Truth or Consequences.
Unfortunately, however, in order to thwart accountability and consequences,
Defendants fail to disclose requested public records, fail to disclose a public record
does not exist, or delay to such an extent that the information is no longer timely.
In order for government to truly be of the people and by the people,
and not just for the people, our citizens must be able to know what
their own public servants are doing in their name.
San Juan Agric. Water Users Ass’n v. KNME-TV, 2011-NMSC-011, ¶16, __ N.M.
__, __ P.3d.
There has been no truth or consequences in Truth or Consequences. Plaintiff
prays there will be both.
SUMMARY OF PROCEEDINGS
Plaintiff filed a Petition for Writ of Mandamus in July 2009 to enforce IPRA
(hereinafter “Petition”). Plaintiff claimed three IPRA violations for her requests of
May 21, 2008, for the “audit trail,” May 28, 2008, for the “audit log,” and July 9,
2008, for the “computer audit log” and audit log for application “cards.”
The Court ordered the Defendants to answer the Petition as if it were a
complaint to enforce IPRA in August 2009.
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 4
Defendants Response to Complaint to Enforce Provisions of the Public
Records Act was filed on October 21, 2009 (hereinafter “Response to Complaint”).
Defendants claimed the ADG Utility Billing System audit log does not exist, and if
it did exist, Defendants further asserted it would have been burdensome and a
deposit of $15,000 for “copying fees” was reasonable.
Petitioner’s Reply to Defendants Response to Complaint to Enforce
Provisions of the Public Records Act was filed on November 4, 2009 (hereinafter
“Reply to Response to Complaint”). Plaintiff claimed the audit logs do exist, the
ADG Utility Billing System is capable of providing the records electronically,
demand for $15,000 was to avoid production of public records, and Defendants
met the IPRA requests with fraud, harassment, perjury and tampering with the
public record.
Respondents’ Motion to Dismiss was filed on December 28, 2009
(hereinafter Motion to Dismiss). Once again, Defendants claimed the ADG Utility
Billing System audit log does not exist and to produce would require the “City to
create over 50,000 pages of new documents.”
A status conference was held on December 29, 2009, with Hon. William
Sanchez presiding. A verbal order was issued to finish the Motion cycle and the
written motions would be taken into consideration.
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 5
Petitioner’s Reply to Defendants’ Motion to Dismiss was filed on
December 31, 2009 (hereinafter “Response to Motion to Dismiss”). Plaintiff
claimed the audit logs do exist, the partial printout of a database is not the creation
of a new record, burdensome is not a basis for denial, “requiring payment prior to
inspection is not allowed under IPRA, and the $15,000 demand was and remains
nothing more than an imposition of a prohibitive fee to avoid complying with
IPRA.”
City’s Reply to Petitioner’s Reply to Respondent’s Motion to Dismiss was
filed on January 7, 2010 (hereinafter “Reply to Response to Motion to Dismiss”).
Defendants again claim “there is simply no ‘audit log’ which exists” and the ADG
Utility Billing System audit log could “only be created in the burdensome and
costly manner outlined by [Bob Hupp].”
Petitioner’s Motion to Strike City’s Reply to Petitioner’s Reply to
Respondent’s Motion to Dismiss was filed on January 15, 2010 (hereinafter
“Motion to Strike”). Plaintiff complains the Reply to Response to Motion to
Dismiss should be stricken for raising new arguments that have never been aired
before.
Petitioner’s Motion for Judgment on the Pleadings, Damages, Declaratory
and Injunctive Relief was filed on January 19, 2010 (hereinafter “Motion for
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 6
Judgment”). Plaintiff claims the audit logs exist, a computer database is a public
record subject to IPRA, IPRA excludes charging for redaction, and burdensome is
not a basis for denial.
City’s Response to Petitioner’s Motion for Judgment on the Pleadings was
filed on January 20, 2010 (hereinafter “Response to Motion for Judgment”).
Again, Defendants claim “the requested documents do not exist.”
City’s Response to Motion to Strike City’s Reply was filed on January 20,
2010 (hereinafter “Response to Motion to Strike”). Defendants claimed no new
issues were raised and further claimed “the requested documents simply do not
exist, and never have.”
On November 1, 2011, Plaintiff filed a Certificate of Readiness for Trial,
Request for Setting and List of Trial Witnesses. Notice of Trial for November 28,
2011, was filed by the Court on November 7, 2011. Upon request from
Defendants, the Court filed an Amended Notice of Hearing for “pending motions”
for November 28, 2011.
Supplement to Reply to Defendants’ Motion to Dismiss was filed on
November 14, 2011 (hereinafter “Supplement”). The Supplement was filed to
include a memo from Berna Garcia, Utility Office Manager and named-defendant,
in response to the Attorney General Request of June 2009 which declared the
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 7
“audit log” exists and it is an electronic record. Although Defendants had
previously utilized as exhibits all other documents created in June 2009 in response
to the Attorney General Request, Defendants failed to disclose this one document,
which confirmed that an audit log exists as an electronic record. Plaintiff
discovered it through an IPRA request to the Attorney General of New Mexico and
disclosed it to the Court.
In addition, the Supplement included an Affidavit of Gouthum Karadi1 filed
on November 14, 2011 (hereinafter “Affidavit of Karadi”) to declare his technical
expertise and that “utilizing available technology would require no more than 30
minutes” to retrieve the ADG Utility Billing System audit log.
City’s Response to Plaintiff’s Supplement was filed on November 18, 2011
(hereinafter “Response to Supplement”). Although the supplemented evidence
was a document created by Defendants, and thereby already in the possession of
City, Defendants objected to the inclusion of new evidence and Plaintiff disclosing
it to the Court.
1 Mr. Karadi was listed as an expert witness in Plaintiff’s List of Trial Witnesses filed on
November 1, 2011.
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 8
The Affidavit of Berna Garcia2 dated November 10, 2011, filed with the
Response to Supplement on November 18, 2011 (hereinafter Garcia Affidavit)
“explain[s] in detail … the City Utility Office has and utilizes [an] Application
Audit Log … [and] System Master Audit Log.” The Garcia Affidavit also
introduces a new defense that the System Master Audit Log is “just not the type of
audit log Ms. Toomey is wishing to view.” The Garcia Affidavit does not opine
whether the Application Audit Log is or is not the audit log for the “cards”
requested under IPRA.
The Affidavit of Mark Jost,3 President of ADG, dated November 11, 2011,
filed with the Response to Supplement on November 18, 2011 (hereinafter
“11/11/11 Jost Affidavit”) not only attacks Mr. Karadi as a technical expert, but
also claims “the data [Ms. Toomey] is requesting is not even available.”
2 Although not titled as “affidavit,” it is a written and signed statement by named-defendant and
verifier of the Response to Complaint, Bernadine Garcia, in response to pleadings. As such, this
signed statement by Ms. Garcia should be construed by the Court as a sworn affidavit affirmed
by the signatory under penalty of perjury under the laws of the State of New Mexico to be true
and correct. 3 Although not titled as “affidavit,” it is a written and signed statement in response to pleadings.
Mr. Jost has specifically written and signed a statement for every pleading Defendants have filed
in this enforcement action. Mr. Jost should be construed by this Court as an undeclared expert
witness since he continues to act in such a capacity. As such, his signed statements written in
response to litigation should be construed by this Court as a sworn affidavit affirmed by the
signatory under penalty of perjury under the laws of the State of New Mexico to be true and
correct.
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 9
A hearing on the “pending motions” was held on November 28, 2011, with
Hon. William Sanchez presiding. Defendants once again claimed “the audit log
does not exist.” Plaintiff once again contended the audit logs existed, and the
Garcia Affidavit affirms two audit logs exist. In addition, Plaintiff informs the
Court that a new defense has appeared: the Utility Department audit logs
described by the Garcia Affidavit are supposedly not the audit logs Plaintiff
wanted. Plaintiff argued that the “Utility Department audit logs” for the computer
database and application cards is not only “reasonably particular” to produce the
two “Utility Department audit logs” the Garcia Affidavit identified as “Application
Audit Log” and “System Master Audit Log,” but based upon the written
description in the Garcia Affidavit, these audit logs were exactly what was
requested under IPRA on May 21, May 28 and July 9, 2008.
The Court ordered Defendants to allow access to Plaintiff’s expert witness
Mr. Karadi to determine whether these audit logs existed and to produce said audit
logs if they existed. The Court also noted a Request for Setting of Status
Conference should be filed as soon as the issue was determined, but to ensure that
Mr. Karadi was granted access no later than December 16, 2011.
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 10
Plaintiff and expert witness Mr. Karadi met with City Manager Juan Fuentes
and City IT Specialist Bob Hupp at the City Utility Department on December 5,
2011, for Mr. Karadi to ascertain if the audit logs existed and, if so, to disclose.
On December 6, 2011, a Request for Setting of Status Conference was filed
by Plaintiff.
Second Affidavit of Gouthum Karadi was filed on January 6, 2012
(hereinafter “Second Karadi Affidavit) to affirm his findings and conclusions of
December 5, 2011. Mr. Karadi affirmed the Utility Department “System Master
Audit Log” exists, took three (3) minutes to retrieve and copy onto a USB drive in
electronic form and that City’s claim it would take 1,300 man hours to produce and
redact were knowingly false.
Affidavit of Ronald Fenn was filed on January 11, 2012 (hereinafter “Fenn
Affidavit”). Mr. Fenn affirms City has disclosed in response to a September 2011
IPRA request that redacting information from the ADG Utility Billing System
database is the creation of a new record and, therefore, City will not provide.
Mr. Fenn also affirms numerous tactics the City uses contrary to IPRA in failing to
properly respond to his requests, and that City regularly intimidates and harasses as
a method to dissuade an informed citizenry.
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 11
Affidavit of Bradley Grower was filed on January 11, 2012 (hereinafter
“Grower Affidavit). Mr. Grower affirms City claimed “no such documents exist”
to IPRA requests when said records did exist and were finally produced after
pressure from the mainstream media. Mr. Grower further affirms that he was
harassed and intimidated with multiple threats of arrest for his IPRA requests
regarding the illegal gun sale by City’s Chief of Police.
Affidavit of Deborah Toomey was filed on January 13, 2012 (hereinafter
“Toomey Affidavit”). Plaintiff affirms and exhibits the true context of the
Response to Complaint, Exhibit 4, and pattern of abuse by City in failing to
properly respond to IPRA requests.
STATEMENT OF MATERIAL FACTS TO WHICH
THERE IS NO GENUINE DISPUTE
1. On May 21, 2008, Plaintiff requested per IPRA for the “audit trail4 as
to ‘when and to whom’ it has disclosed personal records.” Petition, p. 4 ¶19 and
Ex. E; Reply to Motion to Dismiss, p. 7 ¶18.
2. Custodian of Records telephoned the afternoon of May 21, 2008,
requesting clarification, and Plaintiff responded: “For the last five years, I want
the Utility Department audit log that details the date, time, whom accessed and
4 The term “audit trail” is synonymous with the term “audit log.”
http://www.webopedia.com/TERM/A/audit_trail.html
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 12
what record was accessed for all personally identifiable information.” Petition, Ex.
H-1, ¶1.
3. On May 28, 2008, City responds to the May 21, 2008, IPRA request
with a memo regarding “determining a deposit.” The memo was not the requested
audit logs. Petition, p. 6 ¶24 and Ex. G.
4. Inspection was not allowed within three business days of the May 21,
2008, IPRA request. Custodian of Records failed to “explain in writing [within the
three business days] when the records will be available for inspection or when the
public body will respond to the request.” 14-2-8 (D).
5. Custodian of Records did not provide a written explanation of denial
or produce the records for inspection within 15 days to the May 21, 2008, IPRA
request. Damages shall be awarded up to $100 per day from June 5, 2008, until the
production of the record on December 5, 2011, 1,278 days. Petition ¶37; 14-2-11
(C).
6. On May 28, 2008, Plaintiff again requested under IPRA: “For the last
five years, I want the Utility Department audit log that details the date, time, whom
accessed and what record was accessed for all personally identifiable information.”
Petition, pg. 6, ¶25; Petition, Ex. H-1, ¶2.
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 13
7. On May 30, 2008, City refuses to comply with the IPRA request of
May 28, 2008, for the “‘audit log’ until a deposit of $15,000 is received from you
to cover the expense of printing the report for your inspection.” In addition, City
claims the request is burdensome. Petition, pg. 6, ¶27, Petition, Ex. I, ¶1. 14-2-10.
8. City Commissioners and City Attorney are copied on the May 30,
2008, IPRA response demanding $15,000 prior to allowing inspection of public
records under IPRA. Petition, Ex. I.
9. City did not provide Plaintiff with a written explanation of valid
denial nor the production of the records within 15 days for the May 28, 2008,
IPRA request. Damages shall be awarded up to $100 per day from June 12, 2008,
until the production of the record on December 5, 2011, a total of 1,271 days.
Petition, ¶37. 14-2-11 (C).
10. On July 9, 2008, Plaintiff informs Defendants that the $15,000
demand is unreasonable, a “direct attempt to deny [Plaintiff] access to a public
record” and is an “attempt[] by the City to dissuade an ‘informed citizenry’ with
unreasonable charges.” Petition, Ex. J-2 ¶¶2-3.
11. On July 9, 2008, Plaintiff again requests under IPRA the computer
database audit log “either as an electronic copy or to visually inspect.” Petition,
Ex. J-1 ¶¶3-7 and J-2 ¶¶2, 4-6.
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 14
12. Plaintiff clarifies on July 9, 2008, an audit log for the “computer
database” and an audit log for the application cards exist separately, and both need
to be provided for inspection under IPRA. Petition, Ex. J-2, ¶¶5-6.
13. City Commissioners and City Attorney are copied on the July 9, 2008,
IPRA request and letter protesting the demand for $15,000 and attempt by City to
dissuade an informed citizenry through demand for fees to inspect public records.
Petition, Ex J-2.
14. On July 14, 2008, City responded to “Request for documents dated
7/9/08.” City requested “additional time” to provide the “printout of the computer
audit log.” The response fails to address the audit log for the application cards also
requested on July 9, 2008. Petition, Ex. K, ¶5.
15. Inspection was not allowed within three business days of the July 9,
2008, IPRA request. City failed to “explain in writing [within the three business
days] when the records will be available for inspection or when the public body
will respond to the request.” 14-2-8 (D).
16. City Commissioners and City Attorney are copied on the July 14,
2008, IPRA response requesting additional time to respond to the “request for
documents dated 7/9/08.” Petition, Ex. K.
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 15
17. City did not provide Plaintiff with a written explanation of denial or
disclose the records requested under IPRA on July 9, 2009 within 15 days.
Damages shall be awarded up to $100 per day from July 24, 2008, until disclosure
on December 5, 2011, a total of 1,229 days. Petition, ¶37; 14-2-11 (C).
18. On November 18, 2011, Defendants filed an affidavit dated
November 10, 2011, from Berna Garcia. Ms. Garcia states the “City has and
utilizes Application Audit Log.” It is further described that this “log keeps the
date, the time, the customers’ name, the reason for removing the card from file and
initials of the person that made the inquiry.” Garcia Affidavit.
19. On December 5, 2011, City disclosed “they are unaware” of an
“application audit log,” and said log was not produced for inspection. Second
Karadi Affidavit, ¶14.
20. The “application audit log” does not exist contrary to Garcia Affidavit
that City has and utilizes said audit log to protect personally identifiable
information located on the application cards locked in a vault every night. Toomey
Affidavit, ¶¶2-8.
21. City’s failure to reply to the July 9, 2008, IPRA request for the “audit
log for the [application] cards locked in a vault every night” that no such record
exists deprived Plaintiff the fundamental right to obtain accurate, complete and
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 16
timely information that City was not protecting SSN through auditing of access to
the application cards. Petition, ¶38; Toomey Affidavit, ¶¶4-5, 8; 14-2-5.
22. Defendants’ failure to disclose the requested ADG Utility Billing
System audit log thwarted Plaintiff’s right and ability to obtain accurate, complete
and timely information about governmental activities. Toomey Affidavit, ¶4;
14-2-5.
23. On December 5, 2011, the ADG Utility Billing System audit log was
disclosed by City. The retrieval, redaction and download of the ADG Utility
Billing System audit log was not burdensome. Second Karadi Affidavit, ¶7-9, 11,
22, 24-28; 14-2-10.
24. CSV file format is an existing file format of the ADG Utility Billing
System software. Providing the ADG Utility Billing System audit log in a CSV
file format did not require rewriting the software, installation of any additional
components or ODBC connectors, and did not require 1,366 hours to produce.
Second Karadi Affidavit, ¶¶7-9, 11, 22, 24-28.
25. The audit log is an automated subset of the ADG Utility Billing
System and are public records that “are used, created, received, maintained or held
by or on behalf of any public body and relate to public business.” Second Karadi
Affidavit, ¶¶7-9, 11, 22, 24-28; 14-2-6 (E).
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 17
26. Removing exempt information from a nonexempt public record is not
the creation of a new record. 14-2-9.
27. Producing a subset of records from a database is not the creation of a
new record. 14-2-9.
28. City demanded $15,000 prior to inspection for redacting confidential
information. Petition, ¶27 and Ex. I; 14-2-7; 14-2-9.
29. There is no valid “per page” computation of an electronic record, and
therefore actual costs of copying an electronic record cannot be set “per page.”
14-2-7; 14-2-9.
30. City Commissioners are rightly named as parties to the IPRA
enforcement action as they were fully aware of the IPRA disputes, the demand for
$15,000 prior to inspection, and the demand for fee was not an “actual cost” and
was intended to thwart Plaintiff’s right and ability to obtain accurate, complete and
timely information about governmental affairs. Petition, ¶¶39-43; 14-2-6; 14-2-7.
31. City Commissioners failed to protect the “general welfare” of the
municipality by failing to hold City Manager responsible for the violations of
IPRA, violating the fundamental rights of the public and not protecting the SSN of
its utility customers. Petition, ¶¶39-43; 3-14-12; 14-2-5.
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 18
ARGUMENT
Plaintiff invites this Court to take judicial notice of County of Bernalillo
Cause No. D-202-CV-2009-1587, Foy v. New Mexico Educational Retirement
Board wherein the Hon. John W. Pope ordered Defendants to “keep[] in mind that
one purpose of the Inspection of Public Records Act is to make ‘the maximum
possible information’ available to requesters as easily and cheaply as possible.”
Defendants make the least possible information available to requesters as
laboriously and costly as possible, if at all.
A. Fundamental Right to Inspect Public Records
New Mexico’s Inspection of Public Records Act embodies New Mexico’s
policy of open government and is codified at 14-2-1 -12. With very limited
exceptions, IPRA provides that “[e]very person has a right to inspect public
records of this state.” 14-2-1 (A). The Legislature’s stated purpose in enacting
IPRA is to ensure “that all persons are entitled to the greatest possible information
regarding the affairs of government and the official acts of public officers and
employees.” 14-2-5. IPRA further states that providing persons with such
information “is an essential function of a representative government and an integral
part of the routine duties of public officers and employees.” Id.
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 19
Defendants asserted, however, that City’s “will” overrides the public policy
of the State of New Mexico:
Therefore, the legal issue is quite simple; in what manner was the City
willing and able to comply with Ms. Toomey's request for an "audit
log", while at the same time preserving the confidential and private
information (their SSN's) of its utility customers.
Response to Complaint, pg. 3.
It is not Defendants’ “will” or choice as to whether or not to comply with
IPRA. It is a requirement as the declared public policy of this state and a
fundamental right of the people. 14-2-5.
Defendants are correct in that “the legal issue is quite simple.” Defendants
are required to comply with IPRA by providing a redacted audit log for inspection.
Requested public records containing information that is exempt and
nonexempt from disclosure shall be separated by the custodian prior
to inspection, and the nonexempt information shall be made available
for inspection.
14-2-9 (A).
New Mexico courts have long recognized and acknowledged IPRA’s core
purpose of providing “access to public information and thereby encourag[ing]
accountability in public officials.” Bd. of Comm’rs of Doña Ana County v. Las
Cruces Sun-News, 2003-NMCA-102, ¶ 29, 134 N.M. 283, 76 P.3d 36. “[A] citizen
has a fundamental right to have access to public records.” State ex rel. Newsome v.
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 20
Alarid, 90 N.M. 790, 797, 568 P.2d 1236, 1243 (1977). “The citizen’s right to
know is the rule and secrecy is the exception.” Id. “People have a right to know
that the people they entrust with the affairs of government are honestly, faithfully
and competently performing their function as public servants.” Doña Ana,
2003-NMCA-102, ¶ 29 (internal quotation marks and citation omitted).
B. Public Records with Reasonable Particularity
To determine whether disclosure is required as a public record, “[e]ach
inquiry [begins] . . . with the presumption that public policy favors the right of
inspection.” See Doña Ana, 2003-NMCA-102, ¶ 11.
The public’s right to inspect, however, is not without limitation. IPRA
contained prior to its 2011 amendment, twelve narrow statutory exceptions
enumerated in 14-2-1 (A). 5 In addition to these statutory exceptions, our Supreme
Court crafted a non-statutory confidentiality exception known as the “rule of
reason.” Newsome, 90 N.M. at 797, 568 P.2d at 1243. The rule of reason analysis
is applicable only in those cases where a public entity seeks to withhold public
records that do not fall within one of the statutory exceptions contained in Section
14-2-1 (A). City of Farmington v. The Daily Times, 2009-NMCA-057, ¶ 8, 146
N.M. 349, 210 P.3d 246.
5 The removal of exceptions 7, 9, 10 and 11 in 2011 were simply moved to other statutes.
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 21
Defendants did not claim one of the twelve exceptions or confidentiality
under the “rule of the reason” during the request and response period nor during
the enforcement action. In fact, Defendants have made it clear their only defense
is the audit logs do not exist. Response to Complaint, p. 3; Motion to Dismiss,
¶¶6-8, City’s Reply to Response to Motion to Dismiss, ¶¶1, 7-10; Response to
Motion to Strike, ¶2; Response to Motion for Judgment, p. 2.
In this action, Defendants began to claim the audit logs did not exist only
after an enforcement action was filed. Prior to the enforcement action, the audit
logs existed on May 30, 2008, if Plaintiff paid $15,000 prior to inspection and
“additional time” was requested on July 14, 2008 to provide the database audit log.
Pettion, ¶¶27, 29.
This is not the first time, however, Defendants have utilized the defense
“does not exist” in an enforcement action when, in fact, records do exist.
Defendants requested the Court take judicial notice of Sierra County Cause No.
CV-2009-159, Audette and Toomey v. City of Truth or Consequences, and claimed:
In that case, the Petitioner is seeking the production of non-existent
DVD recordings. The Petitioner improperly uses the Courts to request
non-existent information.
Reply to Response to Motion to Dismiss, p. 3, ¶11.
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Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 22
In fact, Defendants regularly utilize the specious argument that records do
not exist to interpose delay and obfuscate the issues, and did so in this case, too.
The Court found the DVD recordings did exist and Plaintiff was “not an elf”
watching herself in miniature on the television at governmental meetings. Toomey
Affidavit, ¶¶10-12.
Defendants no longer wait until an enforcement action has been filed,
however, to claim records which “exist do not exist.” For example, Exhibit R to
the Petition is an IPRA request for the “instruction manuals” of the ADG Utility
Billing Software. Exhibit S to the Petition is the IPRA response claiming “no
written instruction manual.” The instruction manual does exist and was provided
to Plaintiff’s expert witness Mr. Karadi on December 5, 2011. Second Karadi
Affidavit, ¶16; Toomey Affidavit, ¶¶14-16.
The Fenn, Grower and Toomey Affidavits are replete with numerous
examples of IPRA responses from City stating records “do not exist” when, in fact,
records do exist. Defendants don’t have the “will” to comply and are becoming
creative in the numerous methods they employ to violate IPRA, including “this
office” has no records and redacting records would be creating a new record.
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Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 23
Defendants even claim records do exist when they do not in order to thwart
accountability and hide dishonest acts. See Grower Affidavit, Fenn Affidavit, and
Toomey Affidavit.
What is clear is there is a pattern of abuse in violating IPRA by Defendants,
and it is very evident in this current action. The defense in this enforcement action
is that disclosing the audit log is akin to creating a new public record. Motion to
Dismiss, pp. 2-3, ¶¶5-8.
Public records are broadly defined in IPRA as:
all documents, papers, letters, books, maps, tapes, photographs,
recordings and other materials, regardless of physical form or
characteristics, that are used, created, received, maintained or held by
or on behalf of any public body and relate to public business, whether
or not the records are required by law to be created or maintained.
14-2-6 (F).
Defendants even utilize in their pleadings a definition of public records
outside of IPRA, and instead utilize 14-3-2(C) rather than 14-2-6 (F). Motion to
Dismiss, ¶7; Reply to Response to Motion to Dismiss, ¶9.
Defendants’ reasoning as to how retrieving the audit log is creating a new
record has never been clearly stated, and has remained somewhat of a mystery to
Plaintiff. Plaintiff posits, however, that Defendants are actually playing a game of
semantics in an attempt to obfuscate the issues and mislead the court.
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 24
Defendants’ entire argument of the Motion to Dismiss and Reply to
Response to Motion to Dismiss is “IPRA does not contemplate creating new
documents to satisfy a request.” Motion to Dismiss, ¶9; Reply to Response to
Motion to Dismiss, ¶7. This is a not true. IPRA does not “require a public body to
create a public record.” 14-2-8 (B). Plaintiff did not make requests under, nor
seek enforcement of, the Inspection of Public Documents Act; it is the Inspection
of Public Records Act.
A “document” is defined as “a written or printed paper.”6 “Document” is
only one of the many “forms of materials, regardless of physical form or
characteristics” that IPRA defines as a public record. 14-2-6 (F).
If, however, one assumes Defendants were not attempting to obfuscate the
issues and mislead the Court, and exchanges Defendants’ use of the word
“document” for “record,” Plaintiff reasons that Defendants’ contention that
providing the audit log is creating a new record is based upon one or both of the
following: (1) Redacting exempt information from a nonexempt public record is
the creation of a new record. (2) Providing a subset of records from a database is
the creation of a new record.
Not only are these contentions groundless and meritless, they are specious.
6 http://www.thefreedictionary.com/document
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 25
1. Redacting exempt information from a nonexempt public record is
not the creation of a new record.
Defendants’ Response to Complaint states that redacting the audit log
“would contemplate that approximately 55,000 copies would need to be
generated.” Response to Complaint, p. 3 ¶2. Since the definitions of both “to
generate” and “to create” are “to bring into being,”7 Defendants are stating the
process of redaction creates a new record.
Defendants contend in their Motion to Dismiss that the “audit log could only
be created” in the redaction process described by Hupp—manually blacked out
after printing—and “in the absence of the [redacted] document being created, the
requested audit logs do not exist.” Defendants further claim “Petitioner is asking
the City to create over 50,000 pages of new documents.” Motion to Dismiss, pp.
2-3, ¶¶5-8.
The same statements are repeated word-for-word in the Response to Reply
to Motion to Dismiss, p. 3 ¶¶7-10.
As the Fenn Affidavit affirms, Defendants recently made this claim in an
IPRA response to Mr. Fenn in September 2011. Defendants refused to comply
with IPRA and provide the requested public records as the database contains
7 http://www.thefreedictionary.com/generate; http://www.thefreedictionary.com/create
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 26
confidential information. The response continues it is not required to “creat[e] a
new record” by redacting the exempt information. Fenn Affidavit, ¶9; Toomey
Affidavit, ¶24, Ex. H.
IPRA clearly disagrees, as “requested public records containing information
that is exempt and nonexempt from disclosure shall be separated by the custodian
prior to inspection, and the nonexempt information shall be made available for
inspection.” 14-2-9 (A).
Defendants claim that the audit log did not exist unless the redacted audit log
was created as a defense in an IPRA enforcement action is groundless, meritless,
and absurdly specious. It allows Defendants to keep all utility records and any
other record with exempt information secret, enabling “keepers of the record”
inordinate powers akin to a secret police. “The citizen’s right to know is the rule
and secrecy is the exception.” Newsome, 90 N.M. 790.
Redacting a public record is not the creation of a new record.
2. Providing a subset of records from a database is not the creation
of a new record.
While not as prevalent a defense in Defendants’ pleadings as the “redacting
is creating,” Defendants also claimed “The City does not maintain a computer
‘audit log.’” Response to Complaint, p. 3.
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 27
Since the ADG Utility Billing System audit log is an integral part of the
City’s utility software and is automatically “maintained,”8 Plaintiff and the Court
must surmise Defendants made a knowingly false statement or surmise Defendants
meant the audit log did not exist separately from the ADG Utility Billing System
database since City has never “chose[n] option #10, Export Data for SS/WP”9 and
rendered the audit log.10
Arguing upon the second point, the retrieved ADG Utility Billing System
audit log is a subset of the database and exists as records in the database. Simply
put, reporting of data is separate from the creating of data.
As IPRA requires a request to “identify the records with reasonable
particularity,” it is not unreasonable to expect IPRA to require a response to be
“reasonably particular” to the request. 14-2-8 (C).
For example, if an IPRA request is made for any building permits for an
address (“reasonably particular”), the response of pointing to 15 filing cabinets and
claiming the IPRA response has been provided, would be a violation of the spirit
and intent of IPRA.
8 “Maintain is defined as “to keep in existence.” http://dictionary.reference.com/browse/maintain
Since, the audit log exists and was produced on December 5, 2011, it was “maintained.” 9 The enumerated process to retrieve the ADG Utility Billing System audit log. See Karadi
Affidavit, ¶¶6-7. 10
That City is not utilizing the ADG Utility Billing System audit log is troubling in itself. It
confirms Plaintiff’s initial complaints to the City that “they cannot protect the data” which
initiated the IPRA requests.
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 28
It is well-regarded that a public body is not required to “compile
information” from the public body’s records or otherwise create a new public
record in response to a request:
A person asks a county personnel officer for a list of all employees
with college degrees. The office does not keep lists of employees with
college degrees, although college degree information may be included
in an employee’s personnel file. The records custodian is not required
to go through each file to find and list employees with college
degrees. It may, however, make the nonexempt portions of all
personnel files available to the requester so she can peruse them in
search of employees with college degrees.
Office of the New Mexico Attorney General, Inspection of Public Records Act
Compliance Guide 34 (6th ed. 2009) (hereinafter “IPRA Compliance Guide”).
Retrieving the audit log, or retrieving a requested subset of a database, is
not, however, “compiling” information. Compile is defined as putting together or
composing materials gathered from several sources.11
A database is one source.
As the legislature has increased its technical knowledge, 14-2-9 was
amended in 2011 to include a requirement that electronic records be provided in
electronic format if requested. 14-2-9 (B).
As the utilization of databases becomes more and more prevalent in the
management of records of all sorts, the legislature provided in IPRA the above
language to expand upon the only other references to electronic records (i.e.,
11
http://www.thefreedictionary.com/compile
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 29
databases) as public records found in the Public Records Act. 14-3-1 -25. In fact,
the Legislature included new language to 14-2-9 to ensure there was no confusion
between the Inspection of Public Records Act (14-2-1 -12) providing the “greatest
possible information regarding the affairs of government” and the Public Records
Act (14-3-1 -25) providing for the sale of data for commercial purposes:
Nothing in this section regarding the provision of public data in
electronic format shall limit the ability of the custodian to engage in
the sale of data as authorized by Section 14-3-15.1 NMSA 1978,
including imposing reasonable restrictions on the use of the database
and the payment of a royalty or other consideration.
14-2-9 (D).
Both an automated subset of a database and a “reasonably particular” subset
of a database are public records subject to inspection under IPRA. When an IPRA
request is made for a subset of a database in electronic format, it is “exported.” As
all databases support exporting into CSV,12
a file format that is easily
human-readable, an electronic request for a subset provided in CSV is an existing
“file format” at the time of the request. 14-2-9 (B).
The audit logs for the ADG Utility Billing System exist electronically and
were produced electronically on December 5, 2011 for inspection. The audit log is
an automated function of the ADG Utility Billing System and are public records
12
http://en.wikipedia.org/wiki/.csv
MOTION FOR SUMMARY JUDGMENT
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that “are used, created, received, maintained or held by or on behalf of any public
body and relate to public business.” See Second Karadi Affidavit; 14-2-6 (E).
C. The “Cost” of Public Records
IPRA defines “inspect” as to “review all public records that are not excluded
in Section 14-2-1 NMSA 1978.” 14-2-6 (C). Plaintiff’s IPRA request of May 21,
2008, requested “to inspect.” Plaintiff’s request of May 28, 2008, requested “to
inspect.” Plaintiff’s request of July 9, 2008, requested “to visually inspect” or for
City to provide an electronic copy. Petition, Ex. E, H and J, respectively.
Defendants required payment of $15,000 in advance of allowing inspection
for the May 28, 2008, IPRA request:
City will not comply with your request dated 5/28/08 (attached)
related to the “audit log” until a deposit of $15,000 is received from
you to cover the expense of printing the report for your inspection.
Petition, Ex. I (emphasis added).
The demand for $15,000 to inspect was a “direct attempt to deny [Plaintiff]
access to a public record” and is an “attempt[] by the City to dissuade an ‘informed
citizenry’ with unreasonable charges.” Petition, Ex. J.
While IPRA provides that a “reasonable fee” may be charged for copying
public records, IPRA does not allow a fee for inspection:
A records custodian may require a person to pay before the custodian
makes copies. This does not permit the custodian to require
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 31
payment in advance of allowing inspection. Rather, the custodian
should provide the records for inspection, and, if the requester
subsequently requests copies of particular records, the custodian may
require payment in advance for the pages designated for copying.
IPRA Compliance Guide, p. 38 (emphasis added).
IPRA further provides that a Custodian of Records must provide reasonable
facilities to make copies, allowing the requestor to utilize their own equipment to
copy public records. 14-2-7 (D). As such, if Defendants had provided for
inspection what they claimed would be 55,000 pages of an audit log, Plaintiff had
the right to bring in her own equipment and copy those 55,000 pages without any
imposition of a fee. Response to Complaint, p. 2; Motion to Dismiss, ¶8. In fact,
Plaintiff has previously done just that: utilized her own equipment to scan in three
years of meeting minutes, for example.
IPRA further prohibits charging fees for redaction. 14-2-9 (C)(6).
Defendants are aware “we cannot charge for the [personnel time of] data
redaction,” as Mr. Hupp expressed in his justification for the $15,000 demand.
However, the Hupp calculations “result[ed] in a printing and copying charge of
$13,650”13
for both the initial printing and a copy of the redacted report. Response
13
Mr. Hupp explains the difference in the $15,000 and $13,650 as “reports run for the initial
calculation showed a slightly higher page/day count.”
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 32
to Complaint, Ex. 2. In other words, while not charging for the personnel time to
redact, Mr. Hupp’s calculation of costs is clearly for redaction contrary to IPRA.
Since the Defendants’ argument that the redaction process required manually
blacking-out printed documents is specious, and knowingly so, this was a
knowingly illegal request for advance payment meant to chill IPRA requests.
As an “integral part of the routine duties of public officers and employees,”
IPRA does not allow for a fee to retrieve records for inspection. 14-2-5. In fact,
inspection of public records—including a redacted public record—is free. 14-2-9
(C)(6).
Most public bodies, including City, have a set fee for a requested photocopy
of a public record after inspection. City’s set fee is $0.25 per copy. Said copy fee
is also reasonable for scanning a record to respond to it electronically as most
modern photocopy machines also include the option to copy as an electronic record
(i.e., scan). While it could be argued that the actual cost of a scan is less than a
paper copy, since neither paper nor toner is utilized, the difference is nominal.
IPRA also allows “the actual costs associated with downloading copies of
public records to a computer disk or storage device,” such as onto the USB drive
Plaintiff provided. 14-2-9 (C)(3).
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 33
Since the actual time/cost expended by Defendants of three minutes to
provide the audit log on the storage device included both retrieval and copy to a
storage device, it could easily be argued that the actual downloading onto the USB
drive took less than 30 seconds. Since a public body is only allowed to charge for
the “actual costs” at 30 seconds, Defendants demanded $500 a second or $1.8
million an hour.14
Petition, Ex. I.
As ridiculous as the analysis of “actual cost” in the demand for $15,000,
Defendants continue to charge outside of IPRA’s allowance of “actual cost” in
order to dissuade the public from becoming informed citizenry through IPRA.
14-2-9 (C).
City passed Resolution 07-10/1115
in September 2010 and included a “Fees
for Production of Public Record.” City charges $0.25 per "page" for "file transfer"
to "CD/DVD's/USB Drive/Email" of electronic records. Said fee is not based upon
any "actual cost" for downloading copies as allowed per 14-2-9 (C), as further
explained.
To continue the analysis utilizing the ADG Utility Billing System audit log
retrieved on December 5, 2011, based upon Resolution 07-10/11, Plaintiff owes
14
30 seconds at $15,000. 15
http://www.torcnm.org/downloads/clerks/Resolution%207.10-11.pdf. The original resolution
approved on September 13, 2010, was amended on September 27, 2010. It was amended as
Resolution 07-10/11 excluded IPRA requests via email in violation of 14-2-8 (F).
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 34
City $2,435.50 for the retrieved electronic record "as is" (9,742 "pages" at $0.25
per "page"). At 30 seconds to download the electronic record to the provided USB
drive, City claims an "actual cost" of $292,260 per hour utilizing the set fees under
Resolution 07-10/11.16
Resolution 07-10/11 downloading fee of $0.25 per page is in violation of
IPRA and another attempt by Defendants to dissuade an informed citizenry.
Simply, a per-page fee for downloading electronic records cannot be supported.
14-2-9.
Defendants claimed an absurd and unsupportable manual process of
redaction,17
rather than “utilizing methods or redaction tools,” to make the least
possible information in the most burdensome and expensive manner possible.
14-2-9 (A).
Defendants violate IPRA in demanding fees prior to inspection and charging
outrageous fees well beyond “actual cost” to dissuade an informed citizenry and
violate the “fundamental right to have access to public records.” Newsome, 90
N.M. 790.
16
As the ADG Utility Billing System audit log was retrieved and copied after September 2010,
Resolution 07/10-11 is controlling for fees incurred on December 5, 2011. 17
Defendants were also redacting information from their sample copies that went beyond
redacting confidential information. However, since the audit log has now been produced without
the excessive and convoluted redaction as Defendants sampled, the redaction issue is no longer a
material issue.
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 35
And if that doesn’t work, the City will claim the records “do not exist.”
D. Denial and Enforcement
Under IPRA's "enforcement" provision, an award of damages, attorney fees
and costs are mandatory when (1) the request has been denied, and (2) the
requester is successful in a court action to enforce the Act. 14-2-12.
IPRA is not about the providing of documents. It is just as important that a
record does not exist as it is that a record does exist. IPRA’s purpose is to provide
the “greatest possible information regarding the affairs of government and the
official acts of public officers and employees.” 14-2-5. “People have a right to
know that the people they entrust with the affairs of government are honestly,
faithfully and competently performing their function as public servants.” Doña
Ana, 2003-NMCA-102, ¶ 29 (internal quotation marks and citation omitted).
In this case, the nonexistence of an audit log for the application cards proves
the safety of SSN is at risk. Denied this information allows only speculation and
no correction or accountability of a security risk.
Defendants’ continued failure to definitively provide the information as to
whether or not the “application audit log” exists,18
denies Plaintiff the right to
definitively determine whether the Utility Department is “competently” protecting
18
City responded on December 5, 2011, “they are unaware” of whether the application audit log
exists although Garcia Affidavit and Exhibit 4 to Response to Complaint claim its existence.
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 36
the community’s highly sensitive information. Plaintiff has definitively
determined, however, that Defendants are not “honestly” performing their function
as public servants. See Toomey Affidavit.
Under the plain language of the “enforcement” provision, whether the
requested records were found by this Court to exist or not exist is immaterial to an
award of damages.
If a records custodian fails to respond to a records request within
fifteen days of receiving the request and a court concludes that the
failure to respond was unreasonable, the court shall award the plaintiff
damages not to exceed one hundred dollars a day. Section 14-2-
11(C)(1)-(2). In such cases, damages “accrue from the day the public
body is in noncompliance until a written denial is issued” and shall
“be payable from the funds of the public body.” Section 14-2-
11(C)(3)-(4).
San Juan Agric., 2011-NMSC-011, ¶13.
Simply, Defendants did not provide the required written explanation of
denial within fifteen days after receipt of the three separate written requests for
audit logs. 14-2-11. Considering compliance required 20 minutes, “unreasonable”
may be an understatement.
Although Defendants did claim “burdensome” when they demanded
$15,000, more than a year between claim of burden and filing of the enforcement
action is beyond a “reasonable period of time” for the 20 minutes it actually took to
retrieve, redact and electronically copy the audit log. 14-2-10.
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 37
Regardless, a request to inspect a public record cannot be denied merely on
the basis of burden and does not warrant a refusal to disclose. Newsome, 90 N.M.
790, 568 P.2d 1236.
“IPRA includes remedies to encourage compliance and facilitate
enforcement.” San Juan Agric., 2011-NMSC-011, ¶12. I don’t believe, however,
the Legislature ever envisioned a public body so intent upon violating the public
policy of New Mexico and the fundamental rights of its citizens as have
Defendants. See Grower Affidavit, Fenn Affidavit, and Toomey Affidavit.
Since these initial IPRA requests and responses were made in 2008, City has
improved on providing written explanations of denial: records do not exist when
they do exist; “this office” doesn’t have any records; that would be creating a “new
record.” What has not improved is providing the “greatest possible information” to
determine whether our public servants are “honestly, faithfully and competently
performing.” Doña Ana, 2003-NMCA-102, ¶ 29 (internal quotation marks and
citation omitted).
IPRA allows for damages up to $100 per day. 14-2-11 (C). “IPRA’s
damage provisions are intended to encourage public entities’ prompt compliance
with records requests.” San Juan Agric, 2011-NMSC-011, ¶13. When Defendants
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 38
were not encouraged by the potential of damages up to $100 per day and refused
compliance, action was required. 14-2-12.
For the egregious actions both in the request/response phase and during the
enforcement action, consequences are appropriate and encouragement necessary
with an award of full damages and costs for each of the three requests until
disclosure on December 5, 2011, the day the records were disclosed—1,278 days,
1,271 days, and 1,229 days—for a total of $377,800.
Defendants seek to avoid the mandatory language by arguing the “audit log
does not exist.” Strangely, Defendants claimed throughout the enforcement action
that only the ADG Utility Billing System audit log did not exist. Defendants
simply ignored the application audit log, except for the Garcia Affidavit claiming it
existed, and it does not exist. In other words, Defendants claimed the audit log that
does exist doesn’t exist (ADG Utility Billing System audit log) and claimed the
audit log that doesn’t exist does exist (application audit log).
Was this a calculated strategy to interpose delay and obfuscate the issues?
That is for this Court to judge.
CONCLUSION
It is true that “the legal issue is quite simple; in what manner was the City
willing and able to comply with Ms. Toomey's request for an ‘audit log,’ while at
MOTION FOR SUMMARY JUDGMENT
Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 39
the same time preserving the confidential and private information (their SSN's) of
its utility customers.” Response to Complaint, pg. 3.
It really is quite simple: Defendants were able to comply in 20 minutes to
retrieve, redact and copy the ADG Utility Billing System audit log. Defendants
simply weren’t willing to comply. Consequences are appropriate.
WHEREFORE, for all the reasons enumerated herein, Plaintiff’s Motion for
Summary Judgment should be granted, and the Court should enter judgment
(1) declaring Defendants violated IPRA on three requests of May 21, May 28 and
July 9, 2008; (2) award statutory damages and costs; and (3) for such other relief as
the Court deems necessary and just.
Respectfully submitted,
JANUARY 13, 2012 ______________________________
DEBORAH L. TOOMEY, Pro se
7010 Phoenix Ave NE, #518
Albuquerque NM 87110
Phone: (505) 315-8503
Fax: (505) 214-5771