2019 New Mexico Statutes
Chapter 14 - Records, Rules, Legal Notices, Oaths
Article 2 - Inspection of Public Records
Section 14-2-12 - Enforcement.

A. An action to enforce the Inspection of Public Records Act may be brought by:

(1) the attorney general or the district attorney in the county of jurisdiction; or

(2) a person whose written request has been denied.

B. A district court may issue a writ of mandamus or order an injunction or other appropriate remedy to enforce the provisions of the Inspection of Public Records Act.

C. The exhaustion of administrative remedies shall not be required prior to bringing any action to enforce the procedures of the Inspection of Public Records Act.

D. The court shall award damages, costs and reasonable attorneys' fees to any person whose written request has been denied and is successful in a court action to enforce the provisions of the Inspection of Public Records Act.

History: Laws 1993, ch. 258, § 9.

A district court is without constitutional jurisdiction to enforce an IPRA action against another court of equal or superior jurisdiction. — In a superintending control proceeding arising from an Inspection of Public Records Act (IPRA) action filed in the fifth judicial district court (district court), where the real party in interest, a party to a civil case in the first judicial district court, sought to inspect email communications related to a draft copy of a preliminary injunction order that a first judicial district court judge (judge) had been preparing for issuance in the underlying civil case and the contents of a personal election Facebook page maintained by the judge, not only did the enforcement action fail to name the proper defendant, because the designated records custodian is the only official who is assigned IPRA compliance duties, but because the action was a coercive judgment ordering production under IPRA, the fifth judicial district court had no constitutional jurisdiction to litigate any aspect of an IPRA enforcement action against the first judicial district court, because Article VI, Section 13 of the New Mexico constitution prohibits a district court from issuing writs of mandamus or injunction directed to judges or courts of equal or superior jurisdiction. Pacheco v. Hudson, 2018-NMSC-022.

An undisclosed principal cannot, as a plaintiff in an enforcement action, enforce a denial of records requested by its agent. San Juan Agric. Water Users Ass'n v. KNME-TV, 2010-NMCA-012, 147 N.M. 643, 227 P.3d 612, aff'd in part, rev'd in part, 2011-NMSC-011, 150 N.M. 64, 257 P.3d 884.

Undisclosed principal. — A principal, whether disclosed or not, can delegate the function of requesting public records to an agent, such as the principal's attorney, and either the agent or the principal, even if previously unknown to the public records custodian, can enforce the request if it is denied. San Juan Agric. Water Users Ass'n v. KNME-TV, 2011-NMSC-011, 150 N.M. 64, 257 P.3d 884, rev'g 2010-NMCA-012, 147 N.M. 643, 227 P.3d 612.

Where a law firm made a request to inspect public records on behalf of plaintiff; the request included the law firm's name, address, and telephone number; and the request did not disclose the fact that the request was being made on behalf of plaintiff, plaintiff had standing to enforce the public records request that it made through the law firm. San Juan Agric. Water Users Ass'n v. KNME-TV, 2011-NMSC-011, 150 N.M. 64, 257 P.3d 884, rev'g 2010-NMCA-012, 147 N.M. 643, 227 P.3d 612.

A person who has not requested public records, either personally or through an agent, does not have standing to seek judicial enforcement of the Inspection of Public Records Act. San Juan Agric. Water Users Ass'n v. KNME-TV, 2011-NMSC-011, 150 N.M. 64, 257 P.3d 884, aff'g 2010-NMCA-012, 147 N.M. 643, 227 P.3d 612.

Undisclosed principal has no standing. — Where a law firm made an inspection request for records relating to a news documentary program and the request failed to disclose that the law firm was making the request as attorney for or agent of plaintiffs, plaintiffs lacked standing to enforce the Inspection of Public Records Act. San Juan Agric. Water Users Ass'n v. KNME-TV, 2010-NMCA-012, 147 N.M. 643, 227 P.3d 612, aff'd in part, rev'd in part, 2011-NMSC-011, 150 N.M. 64, 257 P.3d 884.

Individuals who do not request access to documents cannot enforce a denial of a records request by another individual. San Juan Agric. Water Users Ass'n v. KNME-TV, 2010-NMCA-012, 147 N.M. 643, 227 P.3d 612, aff'd in part, rev'd in part, 2011-NMSC-011, 150 N.M. 64, 257 P.3d 884.

Citizen must follow court-ordered arrangement to inspect records. — When a citizen enforces this section through an action to compel production of documents, the citizen must comply with the court-ordered arrangements for inspection. Newsome v. Farer, 1985-NMSC-096, 103 N.M. 415, 708 P.2d 327.

Protective order precludes disclosure of records. — Where plaintiff was a petitioner in a domestic relations matter in district court that involved his ten-year-old child, and where, on plaintiff's motion, the district court appointed defendant as guardian ad litem to the child, and where plaintiff served defendant with a discovery request seeking all correspondence received or produced with either party or any other person in relation to the domestic relations case, and where the district court issued a protective order stating that defendant was not required to respond to plaintiff's request for production, prompting plaintiff to request from defendant and the designated custodian of records in the district court, pursuant to the Inspection of Public Records Act, 14-2-1 to -12 NMSA 1978, to produce all records of communications sent or received in any form in the domestic relations case, the district court did not err in granting summary judgment in favor of defendant, because the protective order barred disclosure of the requested records to plaintiff, and persons subject to an injunctive order issued by a court with jurisdiction are expected to obey that decree until it is modified or reversed, even if they have proper grounds to object to the order. Dunn v. Brandt, 2019-NMCA-061.

Successful action to enforce is prerequisite for damages. — It is only in the event that a court action is brought to enforce the Inspection of Public Records Act that a plaintiff may be awarded mandatory costs, fees, and damages, and then only if the plaintiff is successful in that action. Derringer v. State, 2003-NMCA-073, 133 N.M. 721, 68 P.3d 961, cert. denied, 133 N.M. 727, 69 P.3d 237.

Successful litigation interpreted. — Where the secretary of state's office did not fully comply with an inspection of public records request, claiming that its late production of records to plaintiff cannot constitute success under the Inspection of Public Records Act (IPRA) because plaintiff already had possession of the records at the time the litigation was filed, and as a result, the secretary of state's office did not withhold or deny plaintiff access to the records, the district court did not abuse its discretion in awarding attorney's fees because IPRA does not include prior possession as a legitimate ground for withholding public documents, and the fact that plaintiff's litigation secured the production of the denied responsive public records, the litigation was "successful" as that word is used in IPRA. ACLU of New Mexico v. Duran, 2016-NMCA-063.

Reasonable attorney's fees. — Where the secretary of state's office did not fully comply with an inspection of public records request, claiming that its late production of records to plaintiff cannot constitute success under the Inspection of Public Records Act (IPRA) because plaintiff already had possession of the records at the time the litigation was filed, and as a result, did not withhold or deny plaintiff access to the records, the district court's award of attorney's fees was not an abuse of discretion because fees incurred in obtaining documents from a state agency are prima facie reasonable, and when withheld records are subsequently revealed and determined to be responsive, those records may become the basis for an award of attorney's fees in IPRA litigation. ACLU of New Mexico v. Duran, 2016-NMCA-063.

No action for damages after compliance. — The Inspection of Public Records Act does not provide for damages pursuant to an action brought after a public body has complied with the act. Derringer v. State, 2003-NMCA-073, 133 N.M. 721, 68 P.3d 961, cert. denied, 133 N.M. 727, 69 P.3d 237.

Indefinite delay as denial. — Under the Inspection of Public Records Act's enforcement provision, there is no distinction between a denial and an indefinite delay. Board of Comm'rs v. Las Cruces Sun-News, 2003-NMCA-102, 134 N.M. 283, 76 P.3d 36.

The Inspection of Public Records Act provides for two separate remedies. — Section 14-2-11 NMSA 1978 and this section create separate remedies depending on the stage of the Inspection of Public Records Act (IPRA) request. Section 14-2-11 NMSA 1978 requires a public entity to respond to a records request within fifteen days unless the request has been determined to be excessively burdensome or broad. If the request is denied, the custodian shall provide the requester with a written explanation of the denial. It is when the custodian fails to respond to a request or deliver a written explanation of the denial that the public entity is subject to damages pursuant to 14-2-11 NMSA 1978. The enforcement and damages provisions of this section apply in an action for the post-denial enforcement of the IPRA request. Faber v. King, 2015-NMSC-015, rev'g 2013-NMCA-080, 306 P.3d 519.

Where the attorney general's office received a request for public records pursuant to the Inspection of Public Records Act (IPRA) and denied the request the next day, damages pursuant to 14-2-11 NMSA 1978 were not applicable because the attorney general's office timely answered the request with a denial by following the denial procedures set out in 14-2-11 NMSA 1978. When the district court held that the attorney general's office wrongfully withheld the public records, the enforcement and damages provisions of this section applied. Faber v. King, 2015-NMSC-015, rev'g 2013-NMCA-080, 306 P.3d 519.

Separate remedies distinguished. — Section 14-2-11 NMSA 1978 is focused on deterring nonresponsiveness and noncompliance by public bodies in the first instance, while 14-2-12 NMSA 1978 is focused on making whole a person who, believing his or her right of inspection has been impermissibly denied, brings a successful enforcement action. Britton v. Office of the Att'y Gen., 2019-NMCA-002.

Incomplete or inadequate responses to IPRA requests. — Where plaintiff made a request for documents from the Attorney General's Office (AGO) pursuant to the Inspection of Public Records Act, §§ 14-2-1 to -12 NMSA 1978, and where the AGO incompletely and inadequately responded to the request, the district court erred in concluding that plaintiff's action is exclusively one that proceeds under 14-2-12 NMSA 1978 and limiting the damages plaintiff can recover to actual damages under Subsection D of that provision, because a public body that permits only partial inspection, that is inspection of some but not all nonexempt responsive records, has not complied with its obligation to provide the greatest possible information regarding the affairs of government. Britton v. Office of the Att'y Gen., 2019-NMCA-002.

Remedy for inadequate response to IPRA request. — Where plaintiff made a request for documents from the Attorney General's Office (AGO) pursuant to the Inspection of Public Records Act, §§ 14-2-1 to -12 NMSA 1978, and where the AGO failed to permit inspection of approximately 350 records that were responsive to plaintiff's request and for which no claim of exemption was ever asserted or written explanation of denial issued, the district court erred in concluding that plaintiff's action is exclusively one that proceeds under 14-2-12 NMSA 1978 and limiting the damages plaintiff can recover to actual damages under Subsection D of that provision, because the AGO's failure to either produce for inspection or deliver or mail a written explanation of denial regarding the 350 documents is the type of wrong that 14-2-11 NMSA 1978's statutory penalty seeks to remedy. Britton v. Office of the Att'y Gen., 2019-NMCA-002.

Findings as to damages. — If the district court awards damages under Section 14-2-12(D) NMSA 1978 for enforcement of a denied request to inspect records, the district court is required to enter findings specifying the nature and measure of the damages. Faber v. King, 2013-NMCA-080, cert. granted, 2013-NMCERT-007.

Where plaintiff represented employees of defendant in an employment dispute in federal court; the federal court ordered a stay of discovery; plaintiff filed a request for inspection of employment records from defendant's office; defendant denied the request; the district court held that the discovery stay did not preempt rights granted by the Inspection of Public Records Act and ruled that defendant had violated the act; the district court awarded damages of $10 per day from the date of the wrongful denial to the date the federal court lifted the stay and thereafter damages of $100 per day until the records were provided; and although the district court did not specify the nature and purpose of the damage award, the record indicated that the damages were punitive, the award was unsupported by findings supporting compensatory damages, which are a prerequisite to punitive damages. Faber v. King, 2013-NMCA-080, cert. granted, 2013-NMCERT-007.

Attorney's fees. — Where plaintiff's made two requests for records of payments the school district made to a former employee; the school district denied both requests; the district court ordered the school district to produce the records; to support plaintiffs' request for attorneys' fees in the amount of $22,899, plaintiffs proffered their attorneys' itemized billing statements and resumes together with the affidavit of an attorney familiar with the prevailing rates charged by attorneys who attested to the reasonableness of the fees charged and the competency of plaintiffs' attorneys; the district court awarded plaintiffs an arbitrary fee of $5,000 on the grounds that plaintiffs' attorneys charged "strikingly high hourly rates", plaintiff filed only four pleadings, and there were no hearings; the court refused to review the billing statements, rejected the affidavit, and relied on its own assessment of a reasonable hourly rate and a reasonable amount of time to litigate the case; the court did not have a clear grasp of the time and labor involved in litigating the case to a successful conclusion or consider the novelty of the issues addressed in plaintiffs' pleadings or the policy goals of the Inspection of Public Records Act; and the court failed to utilize an objective basis for determining a reasonable award of attorney fees, the court abused its discretion. Rio Grande Sun v. Jemez Mountains Pub. Sch. Dist., 2012-NMCA-091, 287 P.3d 318, cert. denied, 2012-NMCERT-008.

It is clear the Legislature intended to enforce disclosure by imposing a cost including attorney fees for nondisclosure within the time frames set by the Inspection of Public Records Act, regardless of whether the public entity characterizes the nondisclosure as a "denial" or as an indefinite "delay". Board of Comm'rs v. Las Cruces Sun-News, 2003-NMCA-102, 134 N.M. 283, 76 P.3d 36.

Remedy for denial of access to tax assessment records. — Taxpayers who believed that assessor wrongfully denied them access to public records should have pursued the remedies provided in this section. To the extent the board found that the information sought was irrelevant to the assessment of taxpayers' property, there was no error in the board's refusal to sanction assessor. Hannahs v. Anderson, 1998-NMCA-152, 126 N.M. 1, 966 P.2d 168, cert. denied, 126 N.M. 532, 972 P.2d 351.

This section does not authorize punitive damages. — Although government liability for punitive damages would deter the abuse of governmental power and promote accountability among government officials, the countervailing policy of protecting public revenues must prevail unless punitive damages are specifically authorized by statute. This section does not specifically authorize punitive damages. Faber v. King, 2015-NMSC-015, rev'g 2013-NMCA-080, 306 P.3d 519.

This section authorizes the recovery of compensatory damages. — The damages provisions contained in the Inspection of Public Records Act (IPRA) are designed to promote compliance and accountability from New Mexico's public servants. This section ensures that IPRA requests are not wrongfully denied, and if the requester is not made whole by the provision of the documents, the legislature authorized a successful litigant, in an action to enforce a wrongfully denied IPRA request, to seek compensatory or actual damages, costs, and attorneys' fees. Faber v. King, 2015-NMSC-015, rev'g 2013-NMCA-080, 306 P.3d 519.

Where plaintiff was successful in his state court action against the attorney general's office to enforce the provisions of the Inspection of Public Records Act (IPRA), and the state district court issued a writ of mandamus ordering the attorney general's office to comply with the request for public records, and further awarded per diem damages and costs to plaintiff, but failed to clarify the nature of the damages, the supreme court held that this section does not authorize punitive damages or per diem damages for the post-denial enforcement of an IPRA request. In a court action to enforce the provisions of IPRA, this section authorizes costs, reasonable attorneys' fees and compensatory or actual damages only. Faber v. King, 2015-NMSC-015, rev'g 2013-NMCA-080, 306 P.3d 519.

Damages. — Damages for enforcement of a denied request to inspect records are governed by 14-2-12(D) NMSA 1978, not 14-2-11(C) NMSA 1978. The statutory maximum per-day penalty of 14-2-11(C) NMSA 1978 does not create any standard for an amount of damages under 14-2-12(D) NMSA 1978. Faber v. King, 2013-NMCA-080, cert. granted, 2013-NMCERT-007.