Thursday, September 22, 2011

AG Responds to Criticism in Records Case

More often than not, Attorney General King does not respond in kind to attacks against him and the Office, resorting to tu quoque is not his style. Occasionally, however, the verbal assaults are so egregious, misinformed, and outright wrong that at least setting the record straight is needed. The following is the unedited version of AG King's Letter to the Editor in an Albuquerque newspaper.


In a series of editorial articles, the Journal has been critical of the Attorney General's Office (AGO) for pursuing our legal rights under the Inspection of Public Records Act (IPRA). Most recently our actions were called absurd. Such an editorial conclusion is, however, an oversimplification that does a great disservice to an understanding of IPRA. Here is the rest of the story.

The AGO is indeed tasked with enforcement of IPRA. Our office does this in many ways, including training of public officials in compliance, investigation of complaints and advice to agencies we believe are non-compliant, and enforcement through litigation.

Enforcement of IPRA is also personally important to me because I drafted, sponsored and passed the modern version of the Act while in the Legislature in 1993. Therefore, no one understands the irony of a finding of violation of IPRA against my agency more than I do myself. So, how does the AGO find itself in court, defending against a claim that it is in violation of IPRA?
At no time has my office argued that the documents requested are not public records. This battle is exclusively about the propriety of delivering the records to a specific attorney who has been ordered by a Federal Court to refrain from filing such a request with the AGO. Journal reporter Thom Cole was provided with substantially similar documents in a request he filed in a parallel case without delay or incident. The important difference, Mr. Cole is not subject to any court orders, that I am aware of, prohibiting him from such a request.

In the State action, Judge Brickhouse based her finding of violation on the fact that there is no specific exemption to IPRA that fits the facts of this case. We believe the judge should have applied the exemption within IPRA that is available when there is a sound public policy reason for a denial. As the drafter of the legislation, I included this provision because I knew that it would be impossible to foresee every reason for exemption that could be thought of and listed in the bill in 1993. I can assure you that I never intended for the law to be used as a tool to thwart a court's discovery order. Nor was the law intended to allow forum shopping by a Plaintiff for collateral attack on a valid court order from a different jurisdiction.

In the underlying Federal case here, the Judge ordered the Plaintiffs' lawyer to stop (or "stay") their requests for information (discovery) from the AGO for good reason. Many of the claims brought against the office in the federal suit were clearly prohibited by the U.S. Constitution. In fact, the Federal Magistrate cautioned the Plaintiff's lawyer at the initial scheduling conference that the prohibited claims would likely result in a motion and order staying discovery and urged him to drop the claims, which he refused to do.  Consequently, the order staying discovery was entered. When opposing counsel used an IPRA request in State Court to subvert the Federal Court's order, he was found to be in contempt and fined. This cavalier attitude toward the Federal Court order should not be taken lightly.

In order to mask his true reason for making this IPRA request, the Plaintiffs' attorney represented to the State court that he was not using the Act to subvert the order of the Federal Court. However, when we delivered the documents for review recently, he had all three of his clients in tow. Clearly he misled the State court judge to support his IPRA request. Upon learning of his subterfuge, my office asked the Federal Court judge to find that opposing counsel continues to be in contempt of the discovery stay that is currently in effect and issue a penalty that will ensure compliance. We are asking for a significant penalty this time because he has continued to violate the court’s order even though he was previously fined for contempt.

I believe the question of application of discovery stays to IPRA requested information is very important and worth the litigation we are pursuing. I certainly do not believe it is absurd for the State of New Mexico to have its day in court.


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