Britton v. Office of the Att'y Gen.

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 Opinion Number: ________________ 3 Filing Date: September 24, 2018 4 No. A-1-CA-35346 5 MARCY BRITTON, 6 Plaintiff-Appellant, 7 v. 8 OFFICE OF THE ATTORNEY GENERAL 9 OF NEW MEXICO, 10 Defendant-Appellee. 11 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 C. Shannon Bacon, District Judge 13 14 15 16 Freedman Boyd Hollander Goldberg Urias & Ward, PA John W. Boyd Albuquerque, NM 17 for Appellant 18 Fuqua Law & Policy, PC 19 Scott Fuqua 20 Santa Fe, NM 21 for Appellee 22 Rodey, Dickason, Sloan, Akin & Robb, P.A. 23 Denise M. Chanez 24 Albuquerque, NM 25 for Amici Curiae New Mexico Foundation for Open Government OPINION 1 HANISEE, Judge. 2 {1} At issue in this appeal is the appropriate damages available to Plaintiff 3 under the Inspection of Public Records Act (IPRA), NMSA 1978, §§ 14-2-1 to -12 4 (1947, as amended through 2018), when she successfully proved that the New 5 Mexico Attorney General’s Office (AGO) failed to produce all nonexempt records 6 in response to her request to inspect public records and further failed to provide her 7 with an explanation of why she was denied the right to inspect those records. In 8 Faber v. King, 2015-NMSC-015, ¶ 1, 348 P.3d 173, decided two months before the 9 district court ruled in this case, our Supreme Court addressed what damages are 10 available under Section 14-2-12 of IPRA when a public body affirmatively denies 11 an IPRA request and it is later determined that the denial was wrongful. Faber held 12 that in an action brought under Section 14-2-12 to enforce a “wrongful denial,” 13 successful plaintiffs may only recover actual damages, costs, and attorney fees, but 14 not statutory or punitive damages. Faber, 2015-NMSC-015, ¶¶ 15, 31, 41. Relying 15 on Faber, the district court here reasoned that because the AGO timely provided 16 “some responsive records” to Plaintiff’s request, Plaintiff’s case is a “wrongful 17 denial” case “that proceeds under Section 14-2-12, not under Section 14-2-11.” 18 Thus, the district court ruled that Plaintiff is entitled only to actual damages, 19 attorney 1 fees, and costs under Section 14-2-12, and is foreclosed from recovering Section 2 14-2-11’s statutory damages of up to $100 per day. Concluding that the district 3 court misapplied Faber and misinterpreted the damages provisions of IPRA in a 4 manner inconsistent with the legislation’s overarching purpose, we reverse. 5 BACKGROUND 6 Historical Facts 7 {2} Plaintiff is a long-time animal welfare activist in New Mexico who, in 2007, 8 learned about raids being conducted by the AGO’s newly formed Attorney 9 General’s Animal Cruelty Task Force (AGACT). Among other things, Plaintiff 10 became concerned that AGACT was engaging in “killing animals unnecessarily, 11 inhumanely and unlawfully[.]” Plaintiff was also concerned that reports of animal 12 cruelty that were made to the AGACT Hotline were going unanswered, and that 13 Heather Ferguson, a private citizen who was appointed “coordinator” of AGACT, 14 “was mishandling cruelty cases while exercising some sort of law enforcement 15 authority derived from her status as ‘coordinator’ of the AGACT.” 16 {3} After writing to the AGO to express concerns regarding the hotline, 17 Ferguson, and the failure to prosecute cases of animal cruelty and being told by the 18 AGO that its “jurisdiction and authority [to investigate and prosecute complaints of 19 animal cruelty] is, in fact, limited by state statute[,]” Plaintiff sought the assistance 20 of sheriffs, district attorneys, the FBI, and state legislators among others. Because 2 1 “[n]ot one agency investigated or took any action[,]” Plaintiff “decided to launch 2 [her] own investigation through letters and IPRA requests directly to the AGO.” 3 Plaintiff’s IPRA Requests and the AGO’s Responses 4 {4} In March 2009 Plaintiff began submitting requests to inspect public records 5 related to AGACT to the AGO. Specifically, Plaintiff was “trying to find out how 6 ordinary citizens had acquired law enforcement and dispatch authority from the 7 AGO.” On June 30, 2009, Plaintiff served the request at issue in this appeal (June 8 2009 request)—her fifth request in total to the AGO—in which she sought to 9 inspect: 10 11 12 13 14 15 16 17 [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[.] 18 After initially informing Plaintiff on July 1, 2009, that the AGO would respond to 19 Plaintiff’s request no later than July 15, 2009, the AGO’s records custodian later 20 wrote to Plaintiff on July 14, 2009, to inform her that “[t]his request is excessively 21 burdensome and broad and we need additional time to respond.” The AGO told 22 Plaintiff it would “gather the records into year groupings and allow inspection on 23 an on-going basis.” 3 1 {5} On August 1, 2009, having not been permitted to inspect any of the public 2 records responsive to her June 2009 request, Plaintiff wrote to Chief Deputy 3 Attorney General Albert Lama and asked the AGO to “immediately comply with 4 IPRA and provide all requested public records to [her] by Friday, August 14, 5 2009.” In a letter dated August 6, 2009, Lama’s assistant provided Plaintiff with 6 the following updates regarding the AGO’s efforts to respond to her request: (1) 7 the AGO had “completed [its] search for responsive records created in 2007” and 8 had “located no responsive records for that year”; (2) the AGO anticipated “be[ing] 9 able to provide [Plaintiff] with records for 2008 on or before September 8, 2009”; 10 and (3) the AGO “will then continue [its] efforts to identify and make available for 11 inspection the responsive 2009 records.” The letter further stated that the AGO 12 “believe[s] that there are potentially 10,000 records responsive to [Plaintiff’s] 13 request” and asked Plaintiff to provide additional specificity as to the particular 14 records she wished to inspect. Plaintiff responded by letter on August 9, 2009, 15 commenting that the AGO’s August 6 letter had “brought to light the startling and 16 unexpected fact that, by [the AGO’s] estimation, there have been potentially 17 10,000 e-mails exchanged between members of [AGACT] and staff members of 18 the [AGO] within th[e] last year and a half.” She then informed the AGO that 19 “[b]ecause of this new information, instead of tightening the scope of [her] public 4 1 records request . . . , [she] must now expand it to include all of the records [the 2 AGO] mentioned.” 3 {6} On September 4, 2009, the AGO wrote to Plaintiff, informing her that “the 4 first batch [of emails were] available and ready for inspection” and that the 5 standard copying fee of $0.25 per page would apply. Plaintiff sent the AGO a 6 check for $75, and the AGO provided copies of records on September 18, 2009. 7 After Plaintiff sent another check for $19.50, the AGO provided Plaintiff with 8 additional records on October 15, 2009, and advised her that those records 9 constituted “the last batch of emails available for inspection[.]” In total, Plaintiff 10 received 378 records from the AGO in response to her June 2009 request. 11 {7} On October 17, 2009, Plaintiff wrote to the AGO, asking it to “explain the 12 discrepancy between the 10,000 emails that [the AGO] wrote would be responsive 13 to [her] public records request and the 378 records that were actually provided to 14 [her].” Plaintiff also said that she believed she had “evidence . . . to support [her] 15 theory that the [AGO] has willfully withheld approximately 9,600 public records, 16 includ[ing] a previously sent email that was not provided with the subject batches.” 17 She further expressed her surprise that Steve Suttle, an AGO attorney affiliated 18 with AGACT and named in Plaintiff’s June 2009 request, had recently and 19 publicly stated at the State Humane Conference, “ ‘Our emails are private and 20 confidential. We are not going to release them.’ ” 5 1 {8} Lama responded on November 9, 2009, that the AGO had advised Plaintiff 2 that her request could “potentially produce” up to 10,000 responsive records, “but 3 at that time, a definite number had not yet been established.” Lama informed 4 Plaintiff that “[t]he request produced approximately 1000 emails, [of] which 5 [Plaintiff has] been given 378[,]” and that “[s]ome documents retrieved were 6 duplicative or were not within the scope of [Plaintiff’s] request.” Lama also 7 explained that “[o]f the volume of documents reviewed, there is a small number, 8 relating to information subject to non-disclosure under . . . the law enforcement 9 exception to [IPRA].” Lama then concluded, “[a]t this time [the AGO’s] office has 10 fully responded to [Plaintiff’s June 2009] request for inspection of public records 11 that were identifiable based on [her] request.” 12 {9} Over the next two months, Plaintiff continued to “dispute [the AGO’s] 13 assertion that [it] . . . has fully complied with [Plaintiff’s] request for inspection of 14 public records.” In a letter to Lama, Plaintiff explained that she believed the AGO 15 was not in compliance with IPRA for two reasons: first, because it had not 16 produced all responsive records to her request, and second, because it had issued a 17 “blanket denial of records using the ‘law enforcement’ exception[,]” which 18 Plaintiff contended IPRA did not allow. On February 3, 2010, Lama sent Plaintiff a 19 letter and “copies of documents subject to inspection for your review.” Lama 20 informed Plaintiff that “the copies provided are duplicative of what [she was] 6 1 previously provided in [her] original inspection of public records request” and that 2 “[t]his completes all records requests received by this office from [Plaintiff].” 3 Plaintiff “continued to be convinced that the AGO had withheld many emails that 4 were responsive to [her] request” but felt that she “was at a ‘dead end.’ ” 5 Plaintiff’s Discovery of Additional Responsive Records and Filing of the 6 Instant Action 7 {10} Nearly two years later, in January 2012, Plaintiff served an IPRA request on 8 the State Auditor—who, by then, had conducted his own audit of AGACT— 9 seeking inspection of all records in the State Auditor’s custody related to AGACT. 10 Upon receiving a response to her request from the State Auditor, Plaintiff “could 11 see immediately that there were documents within the scope of [her June 2009] 12 IPRA request that the AGO had provided to the [State] Auditor but had withheld 13 from [her].” For example, Plaintiff received from the State Auditor, but not the 14 AGO, an email dated February 10, 2009, sent by Sherry Mangold to a list of 15 recipients that included three individuals employed by the AGO’s office— 16 including Steve Suttle—with a rough draft of minutes from the January 14, 2009, 17 AGACT meeting. 18 {11} Also in January 2012, Plaintiff filed suit in the instant action, alleging that 19 “[t]o date, almost two and a half years after receiving [Plaintiff’s] IPRA request, 20 the AGO has not provided all of the public documents in its possession that are 21 responsive to [Plaintiff’s] request.” Through the use of depositions, Plaintiff 7 1 learned that “the initial search” the AGO conducted in responding to Plaintiff’s 2 June 2009 request “was itself artificially limited and not reasonably calculated to 3 identify many of the documents [Plaintiff] was seeking.” Because Plaintiff’s 4 counsel was also counsel in separate litigation against the AGO, through which it 5 had obtained documents from the AGO during discovery, Plaintiff additionally and 6 by pure happenstance obtained further proof that there were “many documents” 7 that the AGO had not provided to Plaintiff that were responsive to her June 2009 8 request. The AGO agreed to “run a new search of emails, with search criteria that 9 were consistent with [Plaintiff’s June 2009] IPRA request and that [the parties] 10 believed would actually locate the documents that [Plaintiff] had originally sought 11 through [her] IPRA request.” On May 9, 2013, the AGO produced “at least 350 12 [emails] that were called for by [Plaintiff’s June] 2009 IPRA request and that had 13 not been produced earlier.” 14 Summary Judgment Proceedings and the District Court’s Rulings 15 {12} Plaintiff thereafter moved for summary judgment on her IPRA complaint 16 based on what she contended were the AGO’s two distinct violations of IPRA. 17 Plaintiff first argued that the AGO violated IPRA by failing to “produce[] all of the 18 responsive records before declaring that it had completed responding to 19 [Plaintiff’s] request.” Plaintiff next argued that the AGO violated IPRA by failing 20 to “comply with the procedures for denied requests outlined in Section 14-28 1 11(B).” In addition to requesting attorney fees and costs under Section 14-2-12(D), 2 Plaintiff sought statutory damages of up to $100 per day as provided for in Section 3 14-2-11 of IPRA. 4 {13} In its response to Plaintiff’s motion, the AGO did not dispute that “the initial 5 search to locate documents responsive to Plaintiff’s [June 2009] IPRA request was 6 incomplete” but contended that “[t]he failure to initially produce [responsive] 7 documents was inadvertent” and, “at worst, negligent.” While the AGO repeatedly 8 noted that Plaintiff had failed to establish that the AGO’s failure to produce 9 responsive records was done intentionally or in bad faith, it also contended that “it 10 is ultimately irrelevant whether” Plaintiff proffered evidence that the AGO 11 withheld records in bad faith. The AGO’s primary argument that the portion of 12 Plaintiff’s motion seeking Section 14-2-11 damages should be denied focused on 13 the timeliness of the AGO’s response. The AGO argued that because it was 14 undisputed that it had “responded to Plaintiff’s IPRA request within fifteen days of 15 receiving it[,]” Section 14-2-11(C)’s statutory damages provision—which provides 16 that “[a] custodian who does not deliver or mail a written explanation of denial 17 within fifteen days after receipt of a written request for inspection is subject to an 18 action to enforce the provisions of [IPRA]”—“has no application here.” The AGO 19 argued that Plaintiff’s action to enforce the alleged IPRA violations was one 20 arising under Section 14-2-12 of the Act, which, according to the AGO, provides a 9 1 “separate mechanism for enforcing a [s]tate agency’s wrongful denial of records” 2 through which only attorney fees and costs are recoverable. 3 {14} The district court denied Plaintiff’s motion “with respect to the applicability 4 of [Section] 14-2-11” statutory damages but concluded that “Plaintiff is entitled to 5 a reasonable attorney[] fee” under Section 14-2-12. With respect to its denial of 6 Plaintiff’s request for Section 14-2-11 damages, the district court reasoned: 7 8 9 10 11 12 13 IPRA establishes two potential violations of its provisions and also establishes two separate remedies for the enforcement of those violations. The first violation—the failure to timely respond to an IRPA request—is remedied through the provisions described above and found in Section 14-2-11. The second violation—the wrongful withholding of documents in response to a request—is remedied through the provisions of [Section] 14-2-12. 14 .... 15 16 17 18 19 20 21 22 23 Plaintiff’s case is one that proceeds under Section 14-2-12, not under Section 14-2-11. The [AGO] responded to Plaintiff’s IPRA request within the statutorily-mandated time period and provided some responsive records approximately two months later. Plaintiff believed, correctly, that the [AGO] had not fully responded to her request and brought this lawsuit in an effort to obtain those documents that she believed had been withheld. Her action is thus an enforcement action under Section 14-2-12, and she is limited to those damages made available in Section 14-2-12(D). 24 Relying on our Supreme Court’s then-recently issued opinion in Faber, 201525 NMSC-015, the district court concluded that Plaintiff was entitled not to statutory 26 damages but only to “a reasonable attorney[] fee.” 10 1 {15} The district court subsequently denied Plaintiff’s motion for reconsideration 2 and granted the AGO’s motion for summary judgment. In its opinion and order, the 3 district court further elaborated on its reading of Faber and the reasons it 4 concluded that Plaintiff’s action was an action under Section 14-2-12 rather than 5 Section 14-2-11. The district court explained that its ruling was “[i]n light of 6 Faber” and reiterated its belief that “under IPRA there are ‘two different sets of 7 actions.’ . . . One is where the agency completely ignores an IPRA request or 8 doesn’t respond in a timely fashion[,] and the other is ‘the more traditional fight’ 9 under Section 14-2-12 where a requestor sues over what an agency should have 10 produced.” The district court described the instant case as one where “Plaintiff was 11 suing over a wrongful denial” and rejected Plaintiff’s argument that the AGO’s 12 failure to either provide her with all responsive records or inform her of the basis 13 for withholding responsive documents constituted a failure to timely respond to an 14 IPRA request and, therefore, a violation of Section 14-2-11. Accordingly, the 15 district court granted the AGO’s motion for summary judgment. 16 The Arguments on Appeal 17 {16} Plaintiff argues that the district court’s decision reflects a misunderstanding 18 of both IPRA and Faber. She points to the district court’s statement that Section 19 14-2-11 damages apply only in cases “where the agency completely ignores an 20 IPRA request or doesn’t respond in a timely fashion” as evidence of that 11 1 misunderstanding. According to Plaintiff, under the district court’s ruling, “no 2 matter how flagrantly an agency violates [Section 14-2-11’s] procedural 3 provisions, there is no liability for statutory penalties if the agency has gone 4 through the formality of providing some sort of response, whatever it is, to the 5 IPRA request.” Such a ruling, contends Plaintiff, “does violence to IPRA and to 6 [our] Supreme Court’s decision in Faber.” 7 {17} Amicus Curiae New Mexico Foundation for Open Government (NMFOG), 8 which filed a brief in support of Plaintiff, goes further in its condemnation of the 9 district court’s decision, arguing that “[t]he district court’s ruling encourages 10 deceptive responses to IPRA requests” and that “[a]bsent the deterrent effect of an 11 award of statutory damages in situations like these, government entities have little 12 incentive to behave openly and transparently by disclosing the existence of 13 responsive documents.” NMFOG specifically faults the district court for “focusing 14 on the [AGO’s] partial production of responsive documents rather than the 15 [AGO’s] failure to produce other responsive documents” and argues that the 16 district court’s ruling “undermines the overarching policy behind IPRA” by 17 allowing public bodies that provide any response—no matter how inadequate, so 18 long as it is timely—to an IPRA request to avoid the possibility of per-day 19 statutory damages. 12 1 {18} The AGO admits that its response to Plaintiff’s request was “inadequate” but 2 argues that the district court correctly concluded that statutory damages are not 3 available to Plaintiff because the AGO’s admittedly inadequate response was 4 timely. The AGO’s argument rests on its reading of IPRA as “establish[ing] two 5 separate obligations for government agencies and two concomitantly separate 6 remedies for violations of each.” According to the AGO, a public body’s two 7 obligations under IPRA are: (1) to “promptly reply to IPRA requests[,]” and (2) to 8 “respond to IPRA requests by providing all non-exempt responsive documents in 9 their possession.” The AGO argues that a public body’s failure to comply with the 10 first obligation is enforceable under Section 14-2-11(C), which provides for 11 statutory damages of up to $100 per day, while a public body’s failure to comply 12 with its second obligation is only enforceable under Section 14-2-12, which allows 13 for actual damages, attorney fees, and costs, but not statutory damages. Relying on 14 Faber and arguing that the AGO’s failure in this case, like the one in Faber, was in 15 meeting only the second obligation, the AGO defends the district court’s 16 determination that Plaintiff may only recover the damages allowed under Section 17 14-2-12. 18 DISCUSSION 19 {19} The question to be resolved in this appeal is whether the district court erred 20 in concluding that Plaintiff’s action is exclusively “one that proceeds under Section 13 1 14-2-12” and limiting the damages Plaintiff can recover to actual damages under 2 Subsection (D) of that provision. To answer this question requires that we interpret 3 IPRA, making our review de novo. See Faber, 2015-NMSC-015, ¶ 8 4 (“Interpretation of the language of a statute is a question of law that we review de 5 novo.”). Because the facts relevant to our analysis are not in dispute, see 6 Carangelo v. Albuquerque-Bernalillo Cty. Water Util. Auth., 2014-NMCA-032, 7 ¶ 16, 320 P.3d 492 (explaining that “[s]ince summary judgment was granted, we 8 presume the district court found no material facts in dispute”), we apply de novo 9 review to the district court’s legal conclusion that Plaintiff is foreclosed from the 10 possibility of recovering Section 14-2-11 damages under the facts of this case. See 11 City of Albuquerque v. BPLW Architects & Eng’rs, Inc., 2009-NMCA-081, ¶ 7, 12 146 N.M. 717, 213 P.3d 1146 (explaining that “if no material issues of fact are in 13 dispute and an appeal presents only a question of law, we apply de novo review”). 14 Ordinarily, we would begin with a discussion of IPRA itself; however, because the 15 district court concluded that Faber directly controls the disposition of this case and 16 because the AGO contends on appeal that Faber “forecloses” the possibility of 17 Plaintiff recovering Section 14-2-11 statutory damages, we begin by considering 18 Faber’s applicability and the extent to which it controls the outcome of this case. 19 I. Whether Faber Controls 14 1 {20} Faber involved an action by attorney Daniel Faber against then-Attorney 2 General Gary King in which Faber alleged that the AGO had “wrongfully denied” 3 Faber’s request to inspect public records. 2015-NMSC-015, ¶¶ 2, 4. Faber 4 represented three assistant attorneys general in a federal employment lawsuit 5 against the AGO. Id. ¶ 2. He filed an IPRA request for employment data on former 6 AGO attorneys after the federal district court had entered an order staying 7 proceedings, including discovery, in that case. Id. ¶¶ 2-3. The AGO denied the 8 request on the basis that “these records involve a current lawsuit and appear to 9 circumvent the discovery process and the current [o]rder [s]taying [d]iscovery.” Id. 10 ¶ 3. Less than two weeks later, Faber filed an IPRA enforcement action in state 11 district court. Id. ¶ 4. 12 {21} The district court determined that the federal court’s stay of discovery “did 13 not preempt the statutory rights granted to New Mexico citizens by IPRA, and that 14 the Attorney General violated IPRA by denying Faber’s . . . request.” Id. Having 15 succeeded in his enforcement action, Faber later moved for an award of damages 16 and specifically sought “damages of $100 per day.” Id. ¶ 5 (internal quotation 17 marks omitted). Noting that Section 14-2-11(C) allows courts to “award damages 18 of [up to] $100 per day for failure to timely respond to an IPRA request[,]” Faber 19 argued that “the same per diem damages should apply for wrongful denial of 20 requests under Section 14-2-12(D).” Faber, 2015-NMSC-015, ¶ 5. In addition to 15 1 costs, the district court awarded Faber “$10 per day from the date of the wrongful 2 denial to the date the stay was lifted and thereafter damages of $100 per day until 3 the records are provided[.]” Id. (internal quotation marks omitted). 4 {22} Our Supreme Court reversed the district court’s award of per-day damages 5 and held that in “post-denial enforcement” actions brought, as Faber’s was, under 6 Section 14-2-12, the only damages available are actual damages, costs, and 7 attorney fees. Faber, 2015 NMSC-015, ¶¶ 17, 32 (emphasis added). The issue 8 decided in Faber was narrow: “what type of damages a court is permitted to award 9 under Section 14-2-12(D).” Faber, 2015-NMSC-015, ¶ 7. Our Supreme Court 10 rejected the argument advanced by Faber that Section 14-2-11’s per-day damages 11 could and should be read into Section 14-2-12’s damages provision. Faber, 201512 NMSC-015, ¶¶ 5, 13, 15. In so doing, it discussed the different remedies available 13 under Sections 14-2-11 and -12 to illustrate why it was inappropriate—and 14 violative of statutory construction rules—to read Section 14-2-11’s statutory 15 damages into Section 14-2-12. Faber, 2015-NMSC-015, ¶¶ 12, 14-16, 29-32. 16 Specifically, it explained that “Sections 14-2-11 and 14-2-12 create separate 17 remedies depending on the stage of the IPRA request.” Faber, 2015-NMSC-015, 18 ¶ 12. It described Section 14-2-11’s per-day damages as being available “when the 19 custodian fails to respond to a request or deliver a written explanation of the 20 denial” and designed to meet “the goal of prompt compliance” by the public body. 16 1 Faber, 2015-NMSC-015, ¶¶ 16, 29. By contrast, it described Section 14-2-12 2 damages as “ensur[ing] that IPRA requests are not wrongfully denied.” Faber, 3 2015-NMSC-015, ¶ 29. Explaining that the AGO—which had undisputedly 4 provided a good-faith written explanation of denial—“was entitled to present its 5 reasons for nonproduction to the district court” and that the AGO “was in 6 compliance with IPRA” up to the time of decision by the district court, our 7 Supreme Court held that Section 14-2-11’s statutory damages are unavailable in 8 “wrongful denial” enforcement actions under Section 14-2-12. Faber, 20159 NMSC-015, ¶¶ 3, 29, 30. 10 {23} Importantly, Faber neither considered nor addressed the issue presented 11 here: whether a public body that incompletely and inadequately responds to a 12 request is “in compliance[,]” 2015-NMSC-015, ¶ 29, with its obligations under 13 IPRA so as to avoid the possibility of statutory damages. Faber’s statements 14 regarding Section 14-2-11 and the statutory damages provided therein must be 15 understood in the context of the facts of that case and the resolution of the 16 particular arguments advanced therein. Cf. State v. Lucero, 2017-NMSC-008, ¶ 31, 17 389 P.3d 1039 (rejecting as unpersuasive the defendant’s reliance on a case “that 18 presented very different legal and factual issues than his own” and that “did not 19 squarely address” the issue he was raising). Critically, the parties in Faber did not 20 dispute that there had been a “wrongful denial” of Faber’s request, i.e., that the 17 1 AGO had complied with its obligations under Section 14-2-11 by informing Faber 2 of its “good-faith basis for denying the request,” and that Faber’s action was one 3 brought strictly under Section 14-2-12. Faber, 2015-NMSC-015, ¶¶ 1, 31. Here, 4 however, Plaintiff sued over the AGO’s “fail[ure] to produce the public records . . . 5 requested by . . . Plaintiff” in response to her June 2009 IPRA request and the fact 6 that the AGO had not issued a written explanation of denial in conformance with 7 Section 14-2-11(B). In other words, Plaintiff never conceded—and, in fact, 8 continues to hotly contest—that the AGO had complied with its Section 14-2-11 9 obligations, yet the district court summarily concluded that Plaintiff’s case is one 10 that proceeds only under Section 14-2-12. 11 {24} As characterized above, the district court based its conclusion on the fact 12 that “the AGO responded timely to Plaintiff’s IPRA request and provided some 13 responsive records, but did not fully respond to Plaintiff’s request.” But the district 14 court’s own reasoning illustrates the important yet overlooked factual distinction 15 between this case and Faber: that here, by the district court’s own 16 acknowledgment, the AGO “did not fully respond to Plaintiff’s request.” But see 17 Faber, 2015-NMSC-015, ¶¶ 3, 30 (explaining that the AGO’s written explanation 18 of denial, which provided a good-faith reason for withholding requested records, in 19 that case rendered the AGO “in compliance with IPRA”). The question to be 20 decided here—not considered or answered by Faber—is whether the failure to 18 1 fully respond renders a public body potentially subject to statutory damages. Thus, 2 because cases are not considered authority for propositions not considered, we 3 conclude that Faber does not control the outcome of this case and that the district 4 court erred in concluding otherwise. See Sangre de Cristo Dev. Corp., Inc. v. City 5 of Santa Fe, 1972-NMSC-076, ¶ 23, 84 N.M. 343, 503 P.2d 323 (“The general rule 6 is that cases are not authority for propositions not considered.”). 7 {25} But that alone does not mandate reversal. Because the district court based its 8 conclusion on Faber and not an independent construction of IPRA, we next turn to 9 IPRA itself to determine what damages the Legislature intended to be recoverable 10 under the facts of this case. 11 II. Interpreting IPRA 12 The issue of first impression with which we are presented is whether the {26} 13 Legislature intended to subject a public body that issues a perfunctory response 14 and eventually allows inspection of some, but not all, nonexempt public records to 15 the possibility of Section 14-2-11’s statutory damages. Before turning to the 16 parties’ specific arguments about the applicability of Section 14-2-11 damages in 17 this case, however, we begin by reviewing IPRA and its purpose in order to 18 provide context, which is key to any IPRA analysis. See Rio Grande Sun v. Jemez 19 Mountains Pub. Sch. Dist., 2012-NMCA-091, ¶ 8, 287 P.3d 318. 20 A. Applicable Rules of Statutory Construction 19 1 {27} Courts must “construe IPRA in light of its purpose and interpret it to mean 2 what the Legislature intended it to mean, and to accomplish the ends sought to be 3 accomplished by it.” Faber, 2015-NMSC-015, ¶ 8 (internal quotation marks and 4 citation omitted). When construing individual statutory sections contained within 5 an act, courts examine the overall structure of the act and consider each section’s 6 function within the comprehensive legislative scheme. See id. ¶ 9. “To determine 7 legislative intent, we look not only to the language used in the statute, but also to 8 the purpose to be achieved and the wrong to be remedied.” Hovet v. Allstate Ins. 9 Co., 2004-NMSC-010, ¶ 10, 135 N.M. 397, 89 P.3d 69. “A construction must be 10 given which will not render the statute’s application absurd or unreasonable and 11 which will not defeat the object of the Legislature.” State ex rel. Newsome v. 12 Alarid, 1977-NMSC-076, ¶ 9, 90 N.M. 790, 568 P.2d 1236, superseded on other 13 grounds by statute as stated in Republican Party of N.M. v. N.M. Taxation and 14 Revenue Dep’t, 2012-NMSC-026, 283 P.3d 853. 15 {28} “We should not attribute to the [L]egislature an undue precision in drafting 16 and thereby frustrate legislative intent when we construe a statute.” Jeffrey v. Hays 17 Plumbing & Heating, 1994-NMCA-071, ¶ 10, 118 N.M. 60, 878 P.2d 1009. That is 18 particularly so because “[t]he Legislature often enacts laws with a broad sweep, 19 and cannot be fairly expected to expressly address every eventuality.” Cerrillos 20 Gravel Prods., Inc. v. Bd. of Cty. Comm’rs of Santa Fe Cty., 2004-NMCA-096, 20 1 ¶ 15, 136 N.M. 247, 96 P.3d 1167. “Although [appellate courts] will not read into a 2 statute language which is not there, we do read the act in its entirety and construe 3 each part in connection with every other part in order to produce a harmonious 4 whole.” Gen. Motors Acceptance Corp. v. Anaya, 1985-NMSC-066, ¶ 15, 103 5 N.M. 72, 703 P.2d 169. 6 B. The Purpose of IPRA 7 The starting point for any court tasked with resolving an IPRA challenge is {29} 8 to place into statutory context the particular arguments made vis-à-vis the 9 Legislature’s declared purpose in enacting IPRA. Unlike many statutes, for which 10 the Legislature has provided no express statement of intent, IPRA contains a clear 11 declaration of the public policy the Legislature intended to further by enacting 12 IPRA. Section 14-2-5 provides: 13 14 15 16 17 18 19 20 21 22 Recognizing that a representative government is dependent upon an informed electorate, the intent of the [L]egislature in enacting the Inspection of Public Records Act is to ensure, and it is declared to be the public policy of this state, that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of public officers and employees. It is the further intent of the [L]egislature, and it is declared to be the public policy of this state, that to provide 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. 23 (Emphasis added.) As our Supreme Court has explained, “IPRA is intended to 24 ensure that the public servants of New Mexico remain accountable to the people 25 they serve.” San Juan Agric. Water Users Ass’n v. KNME-TV (San Juan), 201121 1 NMSC-011, ¶ 16, 150 N.M. 64, 257 P.3d 884. “New Mexico’s policy of open 2 government is intended to protect the public from having to rely solely on the 3 representations of public officials that they have acted appropriately.” City of 4 Farmington v. The Daily Times, 2009-NMCA-057, ¶ 17, 146 N.M. 349, 210 P.3d 5 246, overruled on other grounds by Republican Party of N.M., 2012-NMSC-026, 6 ¶ 16. 7 {30} What constitutes “the greatest possible information” varies depending on the 8 facts of a given case. Generally, providing “the greatest possible information” will 9 consist of a public body permitting inspection of all public records that are 10 responsive to a request and do not fall within one of IPRA’s enumerated 11 exceptions. See §§ 14-2-1(A), -6(C) (granting “every person . . . a right to inspect 12 public records” and defining “inspect” as meaning “to review all public records 13 that are not excluded in Section 14-2-1” (emphasis added)). Where the public body 14 does so, it is not subject to a claim for any type of damages because it has fulfilled 15 its substantive obligation to provide “the greatest possible information” to the 16 requester. See Derringer v. State, 2003-NMCA-073, ¶¶ 1, 6, 11, 133 N.M. 721, 68 17 P.3d 961 (holding that the plaintiff did not have a cause of action under IPRA 18 where the public body, which initially “did not fully comply” with IPRA, “had 19 furnished or provided access to all of the documents in its possession that [the 20 p]laintiff had requested” prior to the plaintiff bringing his claim). In cases where a 22 1 public body believes requested records are exempt from inspection based on one of 2 IPRA’s exceptions, “the greatest possible information” may initially—and in some 3 cases, only—consist of a written explanation of denial issued by the custodian. See 4 § 14-2-11(B) (providing that “[i]f a written request has been denied, the custodian 5 shall provide the requester with a written explanation of the denial”). As this Court 6 recently explained, IPRA is focused on providing “the greatest possible 7 information[,]” not merely tangible documents, and “[d]enials are valuable 8 information-gathering tools” because “the absence of either (1) production of 9 responsive records or (2) a conforming denial based upon a valid IPRA exception 10 sends a strong message to the requester that no responsive public record exists.” 11 Am. Civil Liberties Union of N.M. v. Duran, 2016-NMCA-063, ¶ 38, 392 P.3d 181. 12 Thus, when a public body issues a conforming written explanation of denial, it is 13 considered to have provided valuable information—upon which a requester can 14 rely—sufficient to satisfy its substantive obligation under IPRA. See Faber, 201515 NMSC-015, ¶ 30 (explaining that “[r]ight or wrong, the [AGO] was entitled to 16 present its reasons for nonproduction to the district court for a decision under 17 Section 14-2-12” and that “up to the time of decision, the [AGO] was in 18 compliance with IPRA”). 19 {31} Importantly, nowhere does IPRA expressly contemplate or provide for 20 “incomplete” or “inadequate” responses, i.e., ones in which the public body has 23 1 failed to permit inspection of all nonexempt responsive records. The expectation 2 established by IPRA is that records custodians will diligently undertake their 3 responsibility to process and fully respond to requests, including determining what 4 public records are responsive to the request and what records or portions thereof 5 may be exempt from disclosure, communicating the status of a request to the 6 requester, and ultimately providing for inspection of all nonexempt records. See, 7 e.g., §§ 14-2-5, -6(C), -7, -8(D), -9(A), (C)(6); San Juan, 2011-NMSC-011, ¶ 36 8 (explaining that “[p]ublic bodies have a statutory duty to respond diligently to all 9 records requests” (emphasis added)). The only basis IPRA provides for a public 10 body to deny a person the right to inspect a public record is the body’s reasonable, 11 good-faith belief that the record falls within one of IPRA’s enumerated 12 exemptions. See §§ 14-2-1, -11. Thus, as Faber explained, IPRA “obligates” 13 public bodies “to either (1) permit the inspection . . . , or (2) deny the written 14 request[.]” 2015-NMSC-015, ¶ 11 (internal quotation marks and citation omitted). 15 A public body that permits only partial inspection—i.e., inspection of some but not 16 all nonexempt responsive records—plainly has not complied with its obligation to 17 provide “the greatest possible information” to the requester. 18 {32} Other provisions of IPRA further suggest that inadequate, incomplete, or 19 partial responses to IPRA are not in compliance with IPRA. Section 14-2-10, for 20 example, provides records custodians with “an additional reasonable period of 24 1 time” to “comply” with a request that is deemed “excessively burdensome or 2 broad[.]” By granting “an additional reasonable period of time” to custodians, the 3 Legislature indicated the primacy of the completeness of a response even over the 4 Legislature’s express desire for timely responses. If all IPRA required public 5 bodies to do to be deemed compliant was to quickly provide for inspection of some 6 records that are within the purview of a given IPRA request, the Legislature would 7 not have granted custodians additional time to respond to requests. The grant of 8 additional time “to comply” with “excessively burdensome or broad” requests 9 effectively eliminates as a possible defense by the public body that it could not 10 adequately and fully respond to a request because of time considerations. 11 {33} In light of not only the express purpose of IPRA but also the entirety of 12 IPRA’s provisions and what they evince regarding the Legislature’s intent, we 13 conclude that when a public body provides an incomplete or inadequate response 14 to a request to inspect public records, that body is not in compliance with IPRA. 15 Because the undisputed facts establish that the AGO’s response to Plaintiff’s June 16 2009 request was “incomplete,” we hold as a matter of law that the AGO was not 17 in compliance with IPRA at the time Plaintiff brought her IPRA enforcement 18 action. We next turn to what damages the AGO is potentially subject to given its 19 noncompliant response. 20 C. IPRA’s Damages Provisions Vis-à-Vis Its Purpose 25 1 {34} As our Supreme Court has explained, “IPRA includes remedies to encourage 2 compliance and facilitate enforcement.” San Juan, 2011-NMSC-011, ¶ 12. IPRA’s 3 two provisions providing for damages—Sections 14-2-11(C) and -12(D)—“create 4 separate remedies depending on the stage of the IPRA request.” Faber, 20155 NMSC-015, ¶ 12. In cases where a request has been “deemed denied,” Section 146 2-11 provides a statutory penalty of up to $100 per day when a public body’s 7 failure to respond to a request is determined to be “unreasonable[.]” Section 14-28 11(A), (C); see Faber, 2015-NMSC-015, ¶ 16 (“It is when the custodian fails to 9 respond to a request or deliver a written explanation of the denial that the public 10 [body] is subject to Section 14-2-11 damages.”). Section 14-2-11 thus 11 “encourage[s] compliance,” San Juan, 2011-NMSC-011, ¶ 12, by public bodies 12 during the operative stage of an IPRA request—i.e., in responding to a request—by 13 creating a financial disincentive to failing to respond in a way that fulfills the 14 public body’s substantive obligation under IPRA. Section 14-2-12(D), by contrast, 15 serves a different purpose. Section 14-2-12(D) requires courts to “award damages, 16 costs and reasonable attorneys’ fees to any person whose written request has been 17 denied and is successful in a court action to enforce the provisions of [IPRA].” 18 Section 14-2-12 thus “facilitate[s] enforcement,” San Juan, 2011-NMSC-011, ¶ 12, 19 after a request has been denied—whether “deemed denied” or affirmatively denied 20 based on an exception later determined to be inapplicable—by encouraging 26 1 individuals to pursue an enforcement action and lawyers to take cases involving 2 alleged violations of IPRA. See Faber, 2015-NMSC-015, ¶¶ 17, 30-31 (explaining 3 that “the enforcement and damages provisions under Section 14-2-12 apply” in 4 “post-denial enforcement” actions); Rio Grande Sun, 2012-NMCA-091, ¶ 19. In 5 other words, Section 14-2-11 is focused on deterring nonresponsiveness and 6 noncompliance by public bodies in the first instance, while Section 14-2-12 is 7 focused on making whole a person who, believing his or her right of inspection has 8 been impermissibly denied, brings a successful enforcement action. 9 {35} The respective remedies established in Sections 14-2-11 and -12 can also be 10 understood as addressing the separate and distinct “wrongs” that can occur under 11 IPRA. Section 14-2-11 addresses the “wrong” done by a public body, i.e., a public 12 body’s failure to respond to a request, which, as concluded above, includes 13 everything from a complete failure to respond at all, to failing to permit inspection 14 of all nonexempt responsive records, to failing to issue an explanation of denial in 15 conformance with Section 14-2-11(B) when records are being withheld from 16 inspection. Section 14-2-12, however, is designed to correct the “wrong” done to 17 the requester when his or her right of inspection is improperly denied. See § 14-218 12(B), (D) (providing both equitable relief and compensatory damages to a 19 requester to ensure that the right of inspection is enforced). As such, and contrary 20 to the AGO’s contention otherwise, we view it to be possible for an IPRA 27 1 enforcement action to proceed—and for an IPRA plaintiff to recover—under both 2 Sections 14-2-11 and -12. In other words, Section 14-2-11 and Section 14-2-12 3 damages are not mutually exclusive insofar as a public body may first occasion 4 wrong to the requester and a requester may be separately and subsequently injured 5 by the ensuing inaccessibility of records obtainable under IPRA. Indeed, an IPRA 6 plaintiff who succeeds in an action based on a public body’s noncompliance, i.e., a 7 Section 14-2-11-based action, necessarily also succeeds in proving the “wrong” 8 that Section 14-2-12 is intended to remedy and is, thus, eligible for the damages 9 provided by both sections. That the same is not true for plaintiffs who prove only a 10 “wrongful denial”—i.e., the circumstances in Faber—in no way forecloses the 11 possibility that a differently situated IPRA plaintiff may be able to recover both 12 statutory and actual damages. 13 {36} Here, the undisputed facts establish that the AGO failed to permit inspection 14 of approximately 350 records that were responsive to Plaintiff’s request and for 15 which no claim of exemption was ever asserted or written explanation of denial 16 issued.1 Thus, unlike in Faber, Plaintiff’s request is not one that was “denied” in a Notably, in response to Plaintiff’s motion for summary judgment, the AGO admitted its “failure to initially produce those documents”—though it attempted to excuse that failure as “inadvertent”—and never contended that its failure with respect to at least certain documents was purposeful, i.e., based on a claimed exemption. 1 28 1 way that limits her to Section 14-2-12 damages; rather, the AGO’s failure to either 2 produce for inspection or “deliver or mail a written explanation of denial” 3 regarding the 350 documents more properly brings Plaintiff’s action within the 4 purview of Section 14-2-11. Because the AGO committed the type of “wrong” that 5 Section 14-2-11’s statutory penalty seeks to remedy, we conclude that the district 6 court erred by summarily concluding that Plaintiff is foreclosed categorically from 7 recovering damages under Section 14-2-11. We, therefore, reverse the district 8 court’s order denying Plaintiff’s motion for summary judgment “with respect to the 9 applicability of [Section] 14-2-11” statutory damages and remand for further 10 proceedings. 11 III. 12 Whether the District Court Must Assess the Statutory Penalty Against the AGO and Award Plaintiff Statutory Damages in This Case 13 Plaintiff contends that the evidence in this case establishes that the AGO’s {37} 14 failure to provide her with all responsive records and/or an explanation as to why 15 certain records were withheld was “certainly ‘unreasonable’ within the meaning of 16 [Section 14-2-11(C)].” She, therefore, asks this Court to “remand to the district 17 court with instructions to assess statutory damages against the [AGO] in an amount 18 appropriate in light of the nature of the violation and the goal of . . . IPRA to 19 encourage full disclosure of public records.” The AGO argues that “[i]f the per[20 ]day penalties in Section 14-2-11(C) were applied every time an agency produced 21 some but not all of its responsive documents, every requester who obtained in 29 1 litigation those documents that had been withheld would be entitled to recover 2 per[-]day damages.” We next address why (1) the AGO’s concern about automatic 3 liability is misplaced, and (2) this Court cannot grant Plaintiff the relief she seeks. 4 {38} Section 14-2-11 does not entitle a requester to statutory damages in every 5 case where the public body has failed to comply with IPRA. Section 14-2-11 6 merely creates the possibility of statutory damages and only mandates their award 7 where the district court has determined that the public body’s failure is 8 “unreasonable.” Section 14-2-11(C)(1). If a district court determines that a public 9 body’s failure to allow for inspection of responsive records was reasonable, it may 10 properly refuse to award statutory damages. See id. If, however, the facts of a case 11 support the conclusion that the public body’s failure was “unreasonable,” the 12 district court must award statutory damages. Id. And even under that circumstance, 13 the Legislature has afforded district courts broad discretion in determining the 14 amount of the award. 15 {39} Unlike other statutory damages provisions that establish a sum certain to be 16 paid in the event of a statutory violation, see, e.g., NMSA 1978, § 57-12-10(B) 17 (2005) (providing for recovery of “actual damages or the sum of one hundred 18 dollars ($100), whichever is greater[,]” where a person has suffered a loss resulting 19 from a violation of the Unfair Practices Act), Section 14-2-11 establishes the 20 penalty as a “not to exceed” amount of up to $100 per day. This reflects the 30 1 Legislature’s understanding of the potential for IPRA noncompliance violations to 2 vary widely in degree and kind and the concomitant need to allow district courts to 3 employ their discretion to award statutory damages that will, as awards must do, 4 effect “the objective of such an award[.]” Cent. Sec. & Alarm Co. v. Mehler, 19965 NMCA-060, ¶ 17, 121 N.M. 840, 918 P.2d 1340. In the case of an intentional, bad 6 faith withholding, the award should reflect the dual objectives of both punishing 7 the underlying violation and deterring future noncompliance, meaning the award 8 might be towards the higher end of the allowable range. In the case of an 9 inadvertent, but objectively unreasonable, nondisclosure, the award serves a 10 different purpose—to acknowledge the violation and admonish the public body for 11 its failure to diligently respond to the request—and the damages awarded might 12 then be calculated accordingly. In light of this sensible scheme that provides for 13 the exercise of factually informed judicial discretion, we are unpersuaded by the 14 AGO’s argument that subjecting public bodies to the possibility of Section 14-2-11 15 liability leads to an absurd result. 16 {40} Regarding Plaintiff’s request that we instruct the district court on remand to 17 assess statutory damages against the AGO, the question of the reasonableness of a 18 public body’s failure to comply with its IPRA obligations is one that must be 19 answered as a matter of fact and is, therefore, not one for this Court to decide. Cf. 20 Bober v. N.M. State Fair, 1991-NMSC-031, ¶ 17, 111 N.M. 644, 808 P.2d 614 31 1 (explaining that whether a defendant has breached the duty of exercising ordinary 2 care “is a question of the reasonableness of [the defendant’s] conduct, and thus a 3 fact question” (internal quotation marks and citation omitted)); South v. Lujan, 4 2014-NMCA-109, ¶ 11, 336 P.3d 1000 (explaining that appellate courts “will not 5 originally determine . . . questions of fact” (internal quotation marks and citation 6 omitted)). We, therefore, remand this case to the district court to determine 7 whether the AGO’s failure to permit inspection of all nonexempt responsive 8 records was unreasonable. See § 14-2-11(C)(1). If the district court determines that 9 the AGO’s failure to produce nearly half of the records responsive to Plaintiff’s 10 request was reasonable, it may properly deny Plaintiff an award of statutory 11 damages. See § 14-2-11(C). If, however, the AGO’s failure in this case is deemed 12 unreasonable, the district court must award Plaintiff damages up to $100 per day 13 accruing from the date the district court determines the AGO was in 14 noncompliance until it came into compliance. Id. 15 CONCLUSION 16 {41} In the absence of the potential applicability of Section 14-2-11’s per-day 17 penalty, there exists no incentive for a public body to do anything more than 18 provide a perfunctory “response” to a request no matter how incomplete and 19 inadequate. Contrary to the district court’s and the AGO’s interpretation, such a 32 1 “response” is, in fact, not a response at all under IPRA. We agree with Plaintiff and 2 NMFOG that to uphold the district court’s ruling would be to incentivize 3 incomplete responses in direct contravention of the legislative purpose that 4 underpins IPRA. We, therefore, reverse the district court’s grant of summary 5 judgment to the AGO and remand for proceedings in accordance with this opinion. 6 {42} IT IS SO ORDERED. ______________________________ J. MILES HANISEE, Judge 7 8 I CONCUR: 9 _________________________________ 10 JULIE J. VARGAS, Judge 11 LINDA J. VANZI, Chief Judge (specially concurring). 12 VANZI, Chief Judge (specially concurring) 13 {43} I concur in the result. The undisputed facts of record establish that the 14 “public body” at issue (the AGO), failed to respond to a written request for “public 15 records” by providing “all public records that are not excluded in Section 14-216 1,” Section 14-2-6(C), (F), (G), and did not “deliver or mail a written explanation 33 1 of denial within fifteen days after receipt of a written request for inspection,” 2 Section 14-2-11(C). Under such circumstances, the request is deemed to have been 3 denied without a legal basis for doing so. Because the district court ruled that 4 Section 14-2-11 is inapplicable, it did not determine whether “the failure to provide 5 a timely explanation of denial” was “unreasonable,” Section 14-2-11(C)(1), and 6 thus, whether Plaintiff is entitled to the damages afforded by Section 14-2-11(C). 7 Remand is therefore necessary to permit the district court to make the required 8 determination. {44} The holding in Faber—that Section 14-2-11 does not apply 9 when the public body has timely answered the request with a written explanation 10 of denial following the denial procedures set out in Section 14-2-11, see Faber, 11 2015-NMSC-015, ¶ 17, does not control the result in this case because it is 12 undisputed that the AGO neither produced for inspection all documents responsive 13 to Plaintiff’s request nor provided a written explanation why other responsive 14 documents were being withheld. Further, contrary to the AGO’s argument, our 15 decision in Derringer makes clear that “in the event that a plaintiff is forced to take 16 [enforcement] action, damages or costs or both can be awarded.” 2003-NMCA17 073, ¶ 13 (citing §§ 14-2-11, -12). No statutory text or precedent precludes 18 Plaintiff from seeking the damages available under Section 14-2-11(C) and 19 ultimately obtaining an award of such damages upon the district court’s 34 1 determination of whether the AGO’s “failure to provide a timely explanation of 2 denial” is “unreasonable.” 3 4 ______________________________ LINDA M. VANZI, Chief Judge 35

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