FILED IN MY OFFICE

DISTRICT COURT CLERK

12/13/2017 11:15:54 AM
STEPHEN T. PACHECO
Marina Sisneros

STATE OF NEW MEXICO

COUNTY OF SANTA FE
FIRST JUDICIAL DISTRICT

D-101-CV-2013-02328

Santa Fe Reporter Newspaper,

Plaintiff,

v.

Governor Susana Martinez,

Defendant.

Decision

This case involves claims by the Santa Fe Reporter (Reporter) against the

Governor concerning her Offices responses or failure to respond to requests for

information from various members of the Reporter staff. The requests were in the

form of emails or telephone calls or in the form of Inspection of Public Records

Act (IPRA)1 requests.

I. Introduction

The Reporter is a weekly newspaper printed in Santa Fe. The Reporter also

has an online presence that is updated daily. The Reporter describes itself as doing

investigative reporting on issues often involving state government. It is the

Reporters position that because of its reporting critical of the Governors

administration that the Governors Office has deliberately treated it adversely by

1
NMSA 1978, 14-2-1, et seq. (2011).

1
refusing to respond to inquiries either at all or in a timely fashion. On the other

hand, the Governor takes the position that her Office has not treated the Reporter

adversely or if they have it has been for legitimate reasons unrelated to the views

espoused by the newspaper. The Court will analyze these claims in two separate

sections. The first deals with the constitutional claim concerning allegations that

freedom of the press has been abridged. The second deals with the IPRA requests.

In the Pretrial Order (PTO) filed November 28, 2016, the parties stipulated

to certain issues. Of help to understanding this decision are the stipulations

regarding various people involved in this case. So as not to have to identify each

persons role repeatedly throughout this Decision, the Court will adopted the

following abbreviated descriptions from the Pretrial Order at pp. 25-272

1. Plaintiffs Employees. With respect to Plaintiffs editors and news staff:

a. Alexa Schirtzinger was employed by Plaintiff until August 2013;

b. Justin Horwath was employed by Plaintiff;

c. Joey Peters was employed by Plaintiff:

d. Julie Ann Grimm is currently employed as Plaintiffs editor and has

occupied that position since Alexa Schirtzinger left it in August 2013. She

has also served as Plaintiffs publisher since September 28, 2016.

2
The Court has shortened the descriptions and does incorporate by reference the entire section of the PTO.

2
 2. Defendants Employees. With respect to the Office of the Governors

staff:

a. Enrique Knell was employed as the Office of the Governors

Communications Director from December 2012 until April 2015;

b. Chris Sanchez has been employed as the Office of the Governors

Communications Director since April 2015;

c. Pamela Cason was employed as a Legal Assistant with the Office of

the Governor from March 14, 2011, until September 23, 2016. She served

as the Office of the Governors records custodian under IPRA during that

period;

d. Scott Darnell was employed as the Office of the Governors

Communications Director from January 2011 to December 2012, and as the

Office of the Governors Deputy Chief of Staff from December 2012 until

April 2016;

e. Keith Gardner has been employed as the Office of the Governors

Chief of Staff since January 2011.

II. First Amendment Right of Media Access to Information

The Count 2 constitutional issue in this case raises the right of a newspaper

to have access to information from the government. The Reporter alleges that it has

been denied access to information on account of its viewpoint. Before discussing

3
the facts as they relate to this issue, the Court will set out the law as it understands

it to be.

A. Discussion of First Amendment Law

The Court begins with an illustrative quotation that discusses the importance

of the issues raised by this case:

Any question regarding infringement of First Amendment rights is of the

utmost gravity and importance for it goes to the heart of the natural rights of
citizens to impart and acquire information which is necessary for the well
being of a free society. The predominant purpose of the grant of immunity to
the press here invoked was to preserve an untrammeled press as a vital
source of public information. The newspapers of this country have shed
more light on the affairs of this nation than any other instrumentality. Since
an informed public is the most important of all restraints upon
misgovernment, the suppression or abridgement of the publicity afforded by
a free press cannot be regarded otherwise than with grave concern. The First
and Fourteenth Amendments were intended to preclude congress and the
States from adopting any form of restraint on printed publications, or their
circulation, including those restraints which had theretofore been affected by
means of censorship, license, and taxation, and from taking any
governmental action which might prevent free and general discussion of
public matters as seems essential to prepare the people for an intelligent
exercise of their rights as citizens. Grosjean v. American Free Press Co.,
297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660 (1936).

New Times, Inc. v. Arizona Bd. of Regents, 110 Ariz. 367, 37071, 519 P.2d 169,

17273 (1974).

Both sides agree that federal cases interpreting the First Amendment apply,

as there is no New Mexico controlling precedent that addresses the exact point

raised by this case. Each side relies on cases it finds to be favorable to its

respective position. The Court will endeavor to put the cases cited and others
4
found by the Court into a constitutional framework in order to explain the rationale

for its ruling. This task is not easy as the cases seem to be conflicting.3

The Supreme Court has severely limited any right of access to information

by the press. Branzburg v. Hayes, 408 U.S. 665, 684-85 (1972), stated that there is

no constitutional right of special access to information. The Court nevertheless

recognized: Nor is it suggested that news gathering does not qualify for First

Amendment protection; without some protection for seeking out the news, freedom

of the press could be eviscerated. Id. at 681-82. The Court, however, held that

the right of the press to speak and publish does not imply an unrestrained right to

gather information[.] Id. at 684.

Pell v. Procunier, 417 U.S. 817 (1974), held it violated the First

Amendment to prohibit the press from interviewing specific inmates. Id. at 819.

Nevertheless, the Court rejected any suggestion that the Constitution imposes

upon government the affirmative duty to make available to journalists sources

of information not available to members of the public generally. Id. at 834.

See also Saxbe v. Washington Post Co., 417 U.S. 843 (1974).

3
One commentator described the law on the medias right to gather information as, far from straightforward.
Developments in the Law -- The Law of Media, IV. Viewpoint Discrimination and Media Access to Government
Officials, 120 HARV. L. REV. 1019, 1020 (2007). As another commentator phrased it: There are now multiple
bodies of access law, none of which are internally settled or externally consistent with one another. As one circuit
court remarked, judges confronted with a claim to access are now required to enter a legal minefield of conflicting
and overlapping laws. Eugene Cerruti, Dancing in the Courthouse: The First Amendment Right of Access Opens
a New Round, 29 U. RICH. L. REV. 237, 263 (1995) (footnote omitted).

5
 This same idea is found in Houchins v. KQED, Inc., 438 U.S. 1 (1978),

which held that the media had no constitutional right of access to a county jail to

interview inmates. Id. at 3. The Court found a difference between the right of the

media to communicate information already obtained and any alleged constitutional

obligation to supply the press with information or comply with demands for access.

The Court stated that it had never intimated a First Amendment guarantee of a

right of access to all sources of information within government control. Id. at 9.

The Court quoted Justice Stewart: The publics interest in knowing about its

government is protected by the guarantee of a Free Press, but the protection is

indirect. The Constitution itself is neither a Freedom of Information Act nor an

Official Secrets Act. Id. at 14 (quoting Potter Stewart, Or of the Press, 26

Hastings L.J. 631, 636 (1975)). The outcome of these cases led some

commentators to opine: This claim of First Amendment-based access to

government information had been so consistently and emphatically rejected by the

Supreme Court that by the late 1970s, it was considered an all but dead letter.

Cerruti, 29 U. RICH. L. REV. at 238.

Then the Court decided the seminal case which found some right of access

in the realm of access to judicial proceedings. Richmond Newspapers, Inc. v.

Virginia, 448 U.S. 555 (1980), the Court determined that the press and the public

had the right to attend a criminal trial. Id. at 558. Justice Stewart developed a test

6
for access that has commonly been used by courts when deciding an access issue:

1) Whether there is an enduring and vital tradition of public access to the forum;

and 2) [W]hether access to a particular government process is important in terms

of that very process. 448 U.S. at 589 (Brennan, J., concurring).4

There are no United States Supreme court cases that have extended a right of

press access beyond judicial proceedings and documents. As one commentator

noted:

Several cases have held straightforwardly that the First Amendment right of
access does not extend to government information outside the Judicial
Branch. The seminal case that appears to find a First Amendment right of
access to executive information involved the very narrow issue of a
broadcaster's right to equal access to cover certain limited coverage events
at the White House. . . .[I]t is a fair summary of the doctrine to state that the
First Amendment right of access has been extended to almost every variety
of legal proceeding or document, but it has not been so extended beyond the
courthouse.

Cerruti, 29 U. RICH. L. REV. at 26869 (footnotes omitted). As stated by one court

faced with this issue:

[I]t requires some straining of the text to construe the Amendment's explicit
preclusion of government interference as conferring upon each citizen a
presumptive right of access to any government-held information which may
interest him or her. . . . It simply does not seem reasonable to suppose that
the free speech clause would speak, as it does, solely to government
interference if the drafters had thereby intended to create a right to know and
a concomitant governmental duty to disclose.

4
For other Supreme Court cases on access to judicial proceedings, see Globe Newspaper Co. v. Superior Court, 457
U.S. 596, 598 (1982) (access to rape trials); Press Enter. v. Superior Court, 464 U.S. 501 (1984) (access to voir
dire); Press-Enterprise Co. v. Superior Court (II), 478 U.S. 1 (1986) (preliminary hearings).

7
Capital Cities Media, Inc. v. Chester, 797 F.2d 1164, 1168 (3d Cir. 1986)

(applying the two-part Stewart test and determining that there was no right of

access in the situation before it).

While the Supreme Court has not further developed the law of media access

to information, lower courts have advanced a number of rationales on which to

analyze cases involving claims of press right to receive information. Generally,

the state of the law has been described:

The First Amendment does not guarantee the public a right of access to
information generated or controlled by government . . . . The Constitution
does no more than assure the public and the press equal access once
government has opened its doors. Therefore, although news gathering is
not without its First Amendment protections, the government is generally
not obligated to provide access to the media.

120 HARV. L. REV. at 1020 (footnotes omitted).

One doctrine used to support claims of a media right of access is the equal

protection clause.5 As stated by the Ninth Circuit in a case involving alleged

discriminatory enforcement of noise ordinances:

To prevail on its claim under the equal protection clause of the

Fourteenth Amendment, a plaintiff must demonstrate that enforcement had a
discriminatory effect and the [government officials] were motivated by a
discriminatory purpose. To establish a discriminatory effect ..., the claimant
must show that similarly situated individuals ... were not prosecuted. To
show discriminatory purpose, a plaintiff must establish that the decision-
maker ... selected or reaffirmed a particular course of action at least in part

5
It is cases from this line of analysis on which Defendant rely. See, e.g., Rosenbaum v. City & County of San
Francisco, 484 F.3d 1142, 115254 (9th Cir. 2007). Defendants cases, however, do not deal with press access to
information, but rather they deal with time, place, and manner restrictions on speech and on selective enforcement of
ordinances and criminal laws.

8
 because of, not merely in spite of, its adverse effects upon an identifiable
group.

Rosenbaum, 484 F.3d at 115253. The analysis to be applied under an equal

protection claim would also require that Plaintiff identify a similar situated group

to which Plaintiff could be compared. Id. at 1153. This Court does not believe

that this analysis is the appropriate analysis to be used in deciding this case. First

the Plaintiff did not bring an equal protection claim. Second the enforcement of a

noise ordinance is factually distinguishable from the access to information cases.

Another analysis has its genesis in the Public Forum Doctrine cases that

contrast time-place-manner restrictions with content-based restrictions. The

former are upheld but the latter are prohibited because the government may not

grant the use of a forum to people whose views it finds acceptable, but deny use to

those wishing to express less favored or more controversial views. Police

Department of the City of Chicago v. Mosley, 408 U.S. 92, 96 (1972). In this

analysis it is interesting to note that the Government has already determined that

access is appropriate but has denied it in a particular instance because of the

viewpoint of the person or entity to whom access is denied. Id. See also

Rosenberg v. Rectors & Visitors of University of Virginia, 515 U.S. 819, 828,

(1995), in which Justice Kennedy, writing for four of the Justices, opined that the

University could not discriminate in its provision of funds to a student newspaper

9
based on its Christian viewpoint.6

Examples of cases applying this analysis include McBride v. Vill. of

Michiana, 100 F.3d 457, 461-62 (6th Cir. 1996). In McBride, a reporter alleged

that in retaliation for negative reporting, local government officials mistreated her

in a number of ways, including ordering city employees not to speak with her and

refusing to conduct meetings while she sat at the press table. The district court held

that prohibiting her from sitting at a press table was actionable on First

Amendment grounds, but the government efforts to prevent officials from

communicating with her were not unconstitutional. The court found that [p]ublic

officials are under no constitutional obligation to speak to the press at all.

Similarly, in Snyder v. Ringgold, No. 97-1358, 1998 WL 13528 (4th Cir.

Jan. 15, 1998), a reporter alleged discriminatory treatment by denying her access to

information after she published an article that was not favored by the defendant

police officer who was in charge of disseminating information to reporters. The

Fourth Circuit held there was no constitutional right of nondiscriminatory access to

6
In the Courts opinion, these cases and other cases cited by Plaintiff are not on point as they do not deal
specifically with the provision of information to the press. While the cases cited by Plaintiff do have broad language
about viewpoint discrimination, the fact that they arise in another context makes them unpersuasive. See, e.g.,
OSU Student Alliance v. Ray, 699 F.3d 1053, 1063 (9th Cir. 2012) (holding that the university could not remove an
independent conservative student newspapers distribution bins from campus unless the university regulated the
placement of newsbins in a public forum according to established, content-neutral standards); Child Evangelism
Fellowship of Minnesota v. Minneapolis Special Sch. Dist. No. 1, 690 F.3d 996, 1001 (8th Cir. 2012) (holding that
excluding a Christian after school program from use of school facilities made available to secular after-school
programs on the basis that the Christian program prayed is prohibited viewpoint discrimination).

10
information that the government has no obligation to make public. The court noted

that [n]o Supreme Court or Fourth Circuit case has held that reporters have such

a right. Id. at *3. The court recognized the right of reporters to get information

generally available to the public but rejected any broad right of access because

such a rule would presumably preclude the common and widely accepted practice

. . . of granting an exclusive interview to a particular reporter. And, it would

preclude the equally widespread practice of public officials declining to speak to

reporters whom they view as untrustworthy . . . . Id. at *4 (footnote omitted). On

remand, the district court held that the plaintiffs rights were not violated when she

was denied interviews with government personnel. Snyder v. Ringgold, 40 F.

Supp. 2d 714, 718 (D. Md. 1999). The court refused to extend any right of access

to encompass preferential treatment because that would completely change the

longstanding relationship and understandings between journalists and public

officials. Id.

In Raycom Natl, Inc. v. Campbell, 361 F. Supp. 2d 679, 681 (N.D. Ohio

2004), the mayor of Cleveland issued an order that no city employees were to talk

with a certain TV stations personnel. The edict was issued after the station aired a

story concerning police officers earning overtime for chauffeuring the mayors

family members. Id. The court ruled against the plaintiff. The court noted that the

television station, instead of asserting denial of access to press conferences or press

11
releases, merely complained that it no longer receiv[ed] interviews or statements

off-the-record that it had been receiving. Id. at 683.

A similar result was reached in Baltimore Sun Co. v. Ehrlich, 437 F.3d 410

(4th Cir. 2006). The Maryland Governors press office directed staff not to speak

with two Baltimore Sun reporters and not to comply with any of their requests for

information. Id. at 413. The directive was issued based on a belief that the

reporters were failing to objectively report on the administration. Id.7 In holding

these actions constitutional, the court observed that the reporters were still allowed

to attend public press conferences and still received official press releases. Id. at

414. The Court characterized the reporters request as seeking preferential

information. Id. at 418 (finding the long-accepted scenario of preferential

communications to a favored reporter to be materially indistinguishable from the

practice challenged in the case). A similar sentiment had been voiced by the

district court. Baltimore Sun Co. v. Ehrlich, 356 F. Supp. 2d 577, 582 (D. Md.

2005) (characterizing the plaintiffs position as seeking treatment far beyond any

citizens reasonable expectations of access to his or her government). The Fourth

Circuit went so far as to state that reporters could be denied access to

discretionarily afforded information on account of their reporting. 437 F.3d at

418.

7
The press office did, however, state its intention to comply with requests made pursuant to Marylands Public
Information Act as legally required. Id. at 414 (internal quotation mark omitted).

12
 In the same vain is Youngstown Publishing Co. v. McKelvey, No. 4:05 CV

00625, 2005 WL 1153996 (N.D. Ohio May 16, 2005), vacated as moot, 189 F.

Appx 402 (6th Cir. 2006). The Mayor of Youngstown, Ohio, barred city officials

from speaking with reporters from a newspaper that had published stories critical

of the city government. Id. at *1. The district court stated the law to be as follows:

The right of access sought by The Business Journal and impeded by the No-
Comment Policy is the ability to conduct one-on-one interviews with and
receive comments from City employees. Three courts, including a decision
arising from this District, faced with similar facts have classified such
interviews and comments as information not otherwise available to the
public. See Raycom National, Inc. v. Campbell, 361 F.Supp.2d 679
(N.D.Ohio 2004); The Baltimore Sun Co. v. Ehrlich, 356 F .Supp.2d 577
(D.Md.2005); Snyder v. Ringgold, 40 F.Supp.2d 714 (D.Md.1999) (Snyder
II); see also Snyder v. Ringgold, No. 97-1358, 1998 WL 13528 (4th Cir. Jan.
15, 1998) (Snyder I). This set of cases concerns government officials who, in
response to unflattering stories published and aired by the news media,
instituted policies forbidding government employees from speaking to
specific television and print journalists.

2005 WL 1153996, at *4. The court rejected the argument that such a right of

access existed. The Court cited Raycom, Baltimore Sun and Snyder I/Snyder

II decisions as drawing a distinction between access to events and facilities

opened to the press and access to one-on-one interviews and off-the-record

comments. There is no constitutional right to the latter. 2005 WL 1153996, at

*5.

There are a number of cases that have found a limited right of access. An

examination of some of those cases, however, reveals their limitations. See, e.g.,

13
See United Teachers of Dade v. Stierheim, 213 F.Supp.2d 1368 (S.D.Fla.2002)

(access to a press room); ABC, Inc. v. Cuomo, 570 F.2d 1080, 1083 (2nd Cir.1977)

(access to post election activities at candidates headquarters); Westinghouse

Broadcasting Co. v. Dukakis, 409 F.Supp. 895 (D.Mass.1976) (access to city

council meetings); Borreca v. Fasi, 369 F.Supp. 906, 907 (D.Haw.1974) (access to

news conferences in mayors office); Telemundo of Los Angeles v. City of Los

Angeles, 283 F.Supp.2d 1095, 1102 (C.D.Cal.2003) (access to ceremony

commemorating Mexican War). See also Quad-City Community News Service,

Inc. v. Jebens, 334 F.Supp. 8, 13 (1971) (recognizing that while [t]here is no

constitutional right of a newspaper to unrestrained gathering of news[,] plaintiff,

an underground newspaper, had a right to review the information which is

routinely available to other media); Times-Picayune Pub. Corp. v. Lee, 1988 WL

36491, at *9 (E.D. La. Apr. 15, 1988) (concluding that the First Amendment

guarantees a limited right of access to news regarding activities and operations of

government. This right includes, at a minimum, a right of access to information

made available to the public or made available generally to the press.)

A similar case is Sw. Newspapers Corp. v. Curtis, 584 S.W.2d 362, 36465

(Tex. Civ. App. 1979), in which the District Attorney required one media publisher

to make appointments to discuss information with news sources in his office when

other media outlets were routinely allowed to interview sources without

14
appointments. The by-appointment rule was instituted after the publisher ran

articles about the DAs budget that the DA did not like.

The Court stated: While public officials need not furnish information, other

than public records, to any news agency, a public official may not constitutionally

deny to one media access that is enjoyed by other media, because one media is

entitled to the same right of access as any other. These cases recognize a limited

right of media access to information made generally available, at least to other

media. See also Stevens v. New York Racing Ass'n, Inc., 665 F. Supp. 164, 175

(E.D.N.Y. 1987) (recognizing that restricting one journalist from taking photos in

an area where other journalists were allowed to take photos was prohibited because

the First Amendment prohibits government from restricting a journalist's access to

areas otherwise open to the press based upon the content of the journalist's

publications).

Some cases also find that the medias right of access is also limited by

whether or not the information is available to the public. A case which illustrates

the limited right is Anderson v. Cryovac, Inc., 805 F.2d 1, 9 (1st Cir. 1986).

Anderson had two holdings of relevance to our inquiry. First, A court may not

selectively exclude news media from access to information otherwise made

available for public dissemination. Thus it was impermissible to bar the

dissemination of discovery materials to all media except one television station. On

15
the other hand, if the standards of Fed. R. Civ. P. 26(C) were met, then a court

could prohibit the dissemination of discovery materials to all members of the

public, including the media. Id. at 14. This case supports the proposition that the

Press right of access to information is no greater than the general publics.

A further question remains whether the government can discriminate in its

dissemination of information based on the viewpoint of the particular media which

is the subject of adverse treatment. Some of the cases discussed above recognize

the ability of the Government to so discriminate. This is implicit in the holdings

that an official may deny a media outlet certain types of information even when the

reason is that the official is doing so because he does not like the outlets coverage

of his administration. See, e.g., Raycom, Baltimore Sun, and Snyder I/Snyder II.

To summarize: there is a limited right of access by the media to government

information. Such right of access includes a right to receive information that is

generally made available to the public or to other media outlets. The government

cannot deny a particular media publisher access to routine information, such as

press releases, made available to the media because of the particular publishers

viewpoint or non-establishment characteristics. Nor can the government deprive a

particular media outlet access to facilities or localities where other press

representatives routinely gather news. However, it is also clear that a particular

media outlet has no right to interviews or comments, not generally available to the

16
public. Nor is it unconstitutional to deny a particular publisher preferential, non-

routine information even if the reason for the denial is dissatisfaction with the

publishers coverage.

Having arrived at a conclusion as to what is constitutionally permitted, it is

now necessary to discuss the burden of proof before turning to the evidence in the

present case. It is unclear what the burden of proof is in a case like this. New

Mexico law is replete with authority that applies a presumption of regularity to

administrative action.8 See, e.g., State v. Myers, 1958-NMSC-059, 14, 64 N.M.

186, 193, 326 P.2d 1075, 1080, which stated:

We . . . must presume that the action of the state engineer is correct. We

find ourselves in agreement with the authority cited by the State and
appearing in 73 C.J.S. Public Administrative Bodies and Procedure 205, p.
556:
On review of the acts or orders of administrative bodies, the courts will
presume, among other things, that the administrative action is correct and
that the orders and decisions of the administrative body are valid and
reasonable; presumptions will not be indulged against the regularity of
the administrative agency's action.

See also Pickett Ranch, LLC v. Curry, 2006-NMCA-082, 53, 140 N.M. 49, 64,

139 P.3d 209, 224 (applying the presumption that administrative action is correct).

This presumption has caused one court to state that a plaintiff challenging

administrative action must overcome the presumption of regularity that attaches

8
New Mexico also has a plethora of cases saying that a challenger of a statute must prove beyond reasonable doubt
that the statute is unconstitutional. See, e.g., Titus v. City of Albuquerque, 2011-NMCA-038, 38, 149 N.M. 556,
568, 252 P.3d 780, 792. Because this case does not involve a statute and because those cases did not deal with
fundamental rights, these cases are not applicable and will not be discussed or used in the Courts analysis.

17
to discretionary agency decision-making[.] United States v. Payan, 905 F.2d

1376, 1378 (10th Cir. 1990).

This presumption of regularity even has some applicability in cases

involving constitutional questions. See, e.g., Pinnell v. Bd. of County Com'rs of

Santa Fe County, 1999-NMCA-074, 29, 127 N.M. 452, 459, 982 P.2d 503, 510,

holding:

Finally, rational-basis scrutiny represents the least stringent level of scrutiny.

It requires that a statute's classification be rationally related to a legitimate
governmental interest. . . . Unlike the other levels of scrutiny, the rational-
basis standard requires that a plaintiff bear the burden of proof and that
the state action bears a strong presumption of validity.

(Citations omitted). This case, however, deals with an equal protection challenge

that did not involve a fundamental right.

The Court believes that the burden of proof associated with claims that a

fundamental right has been impinged is more applicable than the above discussed

cases. While the Court has found no New Mexico cases that deal with the burden

of proof issue in a case involving the First Amendment and administrative action,

rather than a statute or ordinance, the Court is taking its guidance from the

language in Anderson v. Cryovac, Inc., 805 F.2d 1, 5-6 (1st Cir. 1986), which

recognized that when the First amendment is involved, there should be a heighted,

but not strict, scrutiny. This suggests that an intermediate level of scrutiny should

be employed as it is in the time-place-manner restriction cases. (For a time-

18
place-manner case see, e.g., Stuckey's Stores, Inc. v. O'Cheskey, 1979-NMSC-060,

18, 93 N.M. 312, 319, 600 P.2d 258, 265 (1979) (setting out three requirements

for valid time-place-manner zoning).) As one commentator has observed:

[N]ewsgathering generally is not as protected as publishing. Restraints on

newsgathering are treated as incidental burdens on freedom of
speech. Justice Brennan explained the dichotomy in terms of two models of
the First Amendment. The free speech model posits that the primary
purpose of the First Amendment is more or less absolutely to prohibit any
interference with freedom of expression. Government burdens on speech
and publication are subject to close judicial scrutiny. Under the structural
model, the press engages in activities designed to promote effective public
discussion; it performs communicative functions required by our
democratic beliefs. This model, applicable to newsgathering, requires that
courts balance the effects of a regulation on the informing and checking role
of the media against the social values the regulation serves. A less speech-
protective standard of judicial review is used to evaluate restraints on
newsgathering.
Whatever the merits of Justice Brennan's theoretical construct, the
courts generally have not accorded newsgathering as much constitutional
protection as publication.

C. Thomas Dienes, Trial Participants in the Newsgathering Process, 34 U. RICH. L.

REV. 1107, 112526 (2001).

It has been recognized that in a Free Speech case the initial burden is on the

Plaintiff:

[T]he threshold questions are (1) whether the case involves a communicative
interest protected by the first amendment and, if so, (2) whether the
challenged government action infringed that interest. Claimant has
the burden of proof on both these threshold requirements.

Russell W. Galloway, Basic Free Speech Analysis, 31 SANTA CLARA L. REV. 883,

19
891 (1991). If the Plaintiff meets these two hurdles, then the burden shifts to the

government. As stated by one commentator:

Under traditional first amendment standards, the government must show an

important interest for it to be permitted to deny a first amendment right. The
government holds the burden of proof to establish the existence of a
legitimate interest that justifies the particular abridgment. Moreover, there is
a firmly established doctrine that a government regulation
of first amendment interests is unconstitutional if its sweep is overbroad, or
if the legitimate purposes of the regulation can be achieved through means
that impose a lesser burden on first amendment rights.

Robert N. Brailas, Press Access to Government-Controlled Information and the

Alternative Means Test, 59 TEX. L. REV. 1279, 129495 (1981) (footnotes

omitted). All of which suggest the party having the burden of persuasion ... must

suffer the consequences of such uncertainty. See BBI Enters., Inc. v. City of

Chicago, 874 F.Supp. 890, 895 (N.D.Ill.1995).

Based on this analysis the Court rejects any argument that the Plaintiff must

prove the governments actions were unconstitutional beyond a reasonable doubt.

The Court also rejects the argument that the Government must meet a strict

scrutiny test in justifying its actions. Plaintiff must prove that the Governors

staffs actions involved Plaintiffs First Amendment rights and that such actions

impinged on the Plaintiffs rights. As to any conduct, on which Plaintiff succeeds

in meeting this burden, then the Governor must prove that her administration had a

legitimate interest that justified such abridgement and that there were no less

restrictive means which could have achieved the Governments interests.

20
 B. Factual Discussion of Constitutional Issue

With this legal background in mind, the Court will now turn to the evidence

presented. The first area the Court will address is whether the inquiry involved a

right protected by the First Amendment and whether the government action

infringed that right. As an initial matter, it should be noted that the Reporter raises

two different types of complaints: one deals with failure to respond to IPRA

requests; the second deals with failure to respond to press inquiries and to provide

information to the Reporter. The former complaint is a statutory violation that

should be distinguished from a constitutional violation. IPRA violations may be

redressed via statute. See generally Ehrlich, 437 F.3d at 414. The Reporters

remaining IPRA complaints will be discussed in a separate section of this decision.

The second claim potentially implicates the constitution.

One issue discussed by a former editor of the Reporter, Alexa Schirtzinger,

was the failure of the press office to send the Reporter presses releases. If proven,

this is potentially the sort of discriminatory treatment prohibited by the cases

discussed above. Ms. Schirtzingers testimony on this issue, however, does not

establish a constitutional violation because she admitted that the problem was an

unintentional technical one, which when called the attention of the Information

21
Office was remedied. See Tr. 3.29.17, p. 62.9 Further, it appears other news

outlets suffered the same or similar problems with email communications from the

Governors office. See generally Def. Ex. A4. Tr. 3.31.17, pp. 190-91. The Court

finds that the reason why the Reporter personnel were dropped from the press

release email list was a technical temporary problem which was remedied. This

evidence fails to establish viewpoint discrimination.

The Reporter provided evidence of a general nature that their inquiries to the

press office would go unanswered. In the Courts opinion such general evidence is

insufficient to prove a constitutional violation because the case law demands a look

into the specific inquiry in order to determine whether it was seeking routine

information generally available or particular non-routine information. Such an

inquiry cannot be resolved based on general statements. While the Reporters

belief that the failure to respond deprived their readers of a complete story may

explain why the Reporter wanted such information, such belief does not suffice to

show a constitutional violation.

Specific issues discussed at the trial include Defendants Exhibit A-3. This

is a collection of emails between Reporter personnel and Scott Darnell. For the

most part, these emails show responses that either answer the inquiry posed or

refer the Reporter writer to another administration official who could answer the
9
A subsequent editor testified that she did not know if it had been proven that the reason behind the Reporter
personnel being dropped from the list was technical. Tr. 3.30.17, p. 31. The Court believes this is speculation on
Ms. Grimms part.

22
inquiry.

There is one email train in which the former editor complains that the

Governor will not provide a twenty minute interview even though she has provided

such an interview to all of Santa Fes (indeed, most of New Mexicos) other news

outlets[.] This complaint is one that has been rejected as a basis for claiming a

constitutional violation. See cases cited on pp. 9-13, supra. The Reporter also

asked for an interview with someone from the Governors office regarding the

pardon process. The failure to respond to this request is also not a basis on which a

constitutional violation can be demonstrated. Id.

The Reporter also made an issue of the failure to respond to an email from

Justin Horwath to Enrique Knell regarding a comment on a story the Reporter

intended to publish about Susana2010.com email and transparency in government.

See Pl. Ex. 4. This exhibit represents a specific example of a general complaint

voiced by the Reporter that with regard to certain stories that the Reporter either

had or intended to publish, the Press Information Office (PIO) failed to respond

to requests that they comment on the Reporter stories. (For other specific requests,

see Pl. Ex. 5 to 12) The Reporter was of the opinion that its writers were refused

comments on their articles after the Reporter published a story The Year in

23
Closed Government.10 This story was published on December 18, 2012, and is

effectively a summary of stories from the preceding year that demonstrated how, in

the Reporters opinion, the Martinez administration had failed to live up to its

promise of transparency in government. Pl. Ex. 1.

In the Courts opinion, under the cases cited above, these requests are not

asking for routine information, generally available to the public or other media.

Each of these emails contains unique questions and each concerns a story that is

specific to the Reporter. This Court does not read the cases cited above as giving

the news media any constitutional right to demand such information. Indeed, these

inquiries appear to this Court to be the type of information which the press has no

right to demand. See, e.g., Raycom Natl, Inc., 361 F. Supp. 2d at 683 (noting that

the television station, instead of asserting denial of access to press conferences or

press releases, merely complained that it no longer receiv[ed] interviews or

statements off-the-record that it had been receiving, which did not constitute a

constitutional denial). This is the case even if other media outlets receive

comments on similar stories. See, e.g., Baltimore Sun Co. v. Ehrlich, 437 F.3d at

413 (allowing the governors press office to direct staff not to speak with reporters

and not to comply with any of their requests for information). The court stated that

the reporters were seeking preferential information, and found that the long-

10
This was the position taken by the former editor but other reporters, such as Joey Peters, thought the office was
never very responsive and that the situation worsened throughout 2012.

24
accepted scenario of preferential communications to a favored reporter to be

materially indistinguishable from the practice challenged in the case. Id. at 418.

This same rationale applies to the other instances in which Reporter writers or

editors describe writing an article and requesting a comment about the article or its

subject, even if a comment on the same general topic was given to another media

outlet. Thus, the Court finds Ms. Grimms comparison between Reporter inquiries

and Albuquerque Journal comments (Tr. 1.30.17, pp. 5-7) to be examples of

communicating with a favored reporter, which case law states is both traditional

and not unconstitutional.

In this case the evidence also shows that the other media outlets which were

alleged to receive more favorable treatment had larger circulations that the

Reporter. One member of the Reporter staff admitted that it was unknown if this

was the reason why these outlets received comments when the Reporter did not.

Tr. 3.30.17, pp. 38, 41. Prioritizing responses based on circulation is not a

violation of the constitution.

The Reporter tries to gloss over the requirement that their requests must be

for information routinely made available by suggesting that because a purpose of

the PIO is to respond to press inquiries, every request is therefore routine.11 This

attempt to water down the requirement, if recognized, would render the limitation

11
See, e.g., testimony of Joey Peters: I think that all questions journalists ask are routine I believe that public
officials should respond to journalists questions. Tr. 3.29.17, p. 225.

25
meaningless. None of the cases discussed above that dealt with inquiries to a press

office found it significant that the press offices duty was to respond to press

inquiries. That fact alone was not sufficient to overcome the limitation that the

right of access is limited to information made routinely available and not to

information that is responsive to a unique request.

There is a category of inquiries that deserves special attention. This type of

inquiry is illustrated by the exchanges between Enrique Knell and writers from

various media outlets concerning the stolen emails, the revelation of which led to

the indictment of the former campaign worker who disclosed the emails. On June

17, 2013, Joey Peters wrote asking the PIO for a telephone interview on the topic.

Peters got no response. On May 30, 2013, Scott Darnell sent a staff member of

KRQE a statement for attribution to the Governor about the indictment of the

person who disclosed the emails. (Pl. Ex. 74) The same statement was also sent to

KOAT on the same day (Pl. Ex. 75), to KOB (Pl. Ex. 76), to the Albuquerque

Journal (Pl. Ex. 77), and to Steve Terrell of the Santa Fe New Mexican (Pl. Ex.

78). The release of the very same version Governors statement to so many outlets

makes the action look as if it was routine. That in itself does not make the failure

to respond to Peters request a violation of the Reporters constitutional rights.

Peters email asked for a telephonic interview, not a prepared statement. Further,

Peters request came 18 days after the statement was released. As was often noted

26
by the Reporter witnesses, timeliness matters in the newspaper business. Sending

Peters an 18-day old statement in response to a request for a telephone interview

would not have been responsive. Accordingly, the Court finds no constitutional

violation.

Another category of requests that deserve discussion are those that deal with

immigration issues. By email dated March 18, 2013, Justin Horwath asked about

Governor Martinezs positions taken while on a national panel and her position on

immigration while in Santa Fe. On June 27, Horwath re-sent the same message.

(Pl. Ex. 6 & &) Knell could not recollect if he ever responded. On August 12,

2013, a freelance writer from the Reporter sent an inquiry that concerned the

Dreamers (DACA immigrants), including the issue of drivers licenses for

Dreamers. Knell drafted a proposed response which he sent to Scott Darnell for

his thoughts. (PL. Ex. 61) Knell did not recollect if a response was ever sent. By

contrast, Plaintiffs Exhibits 42 to 60 and 62 showed comments or statements being

sent to reporters from other media outlets on the drivers license legislation being

proposed in the legislature. It is true that there is no showing that a similar

statement was sent to the Reporter. However, the Reporters inquiries would not

have been satisfied by the statements that were distributed. The Reporter inquiries

asked for more in depth analysis of immigration reform generally and for contrasts

between the Governors positions in national forums and in state. The type of

27
information sought by the Reporter was not routine. Therefore failure to respond

did not constitute a constitutional violation. This same reasoning applies to

Plaintiffs complaints concerning inquiries regarding the Plaintiffs lawsuit.

In other instances, Plaintiff showed that one or two media outlets received

comments when the Reporter did not. Such conduct does not run afoul of the

constitution under the cases cited above that permit favorable treatment to one

reporter over another.

While, the Court believes that Plaintiff has failed to show the type of

conduct that would amount to a violation of the First Amendment, the Court also

wishes to address the issue of whether there was proof of viewpoint discrimination.

The Report relies in large part on its belief that its relationship with the PIO

changed after it wrote an article in December 2012 critical of the Governors

administration for lack of transparency. Plaintiffs own evidence on this issue was

conflicting with some writers taking the position that they never got timely

responses from the PIO. Further, even if Plaintiffs evidence of a change in

attitude after an article was published were consistent, a temporal relationship

alone would not prove the case. See Trant v. Oklahoma, 754 F.3d 1158, 1170

(10th Cir. 2014) (noting temporal proximity between the protected speech and the

alleged retaliatory conduct, without more, does not allow for an inference of

retaliatory motive). The evidence also shows that after the article in question was

28
published, the Reporter received numerous responses to inquiries it made.

Plaintiff also relies on the comments made by the Governor during a phone

conversation with Joey Peters.12 During this conversation, Peters asked the

Governor about a story and she told him to reach out to Enrique. Peters told the

Governor that Enrique never responded to them and the Governor stated: I

wonder why. The Reporter staff who testified about the comment said that it

sounded sarcastic. The Reporter determined not to introduce the recording it had

of the conversation so the Court cannot attribute any particular quality to the tone

of the comment. The comment is ambiguous in that it could have been a legitimate

question concerning Knells failure to respond on the Governors part; it could

have been a comment on the amount of requests the Reporter made of the

Governors office, or it could have been a comment referring to the viewpoint of

the Reporter. Since the evidence is insufficient to conclusively determine the

nature of the comment, the party with the burden on this issue loses in its bid to

attribute a particular meaning. In the Courts opinion this is part of the Reporters

burden and they have not convinced the Court that the comment showed a

viewpoint animus.

This brings us to the last evidence that bears on this issue. This comes from

the Governors last two Communications Officers. First is Enrique Knells

12
Plaintiffs evidence on this issue was also inconsistent with different people having different recollections of who
could actually hear the conversation. This difference seems somewhat immaterial as the conversation was recorded.

29
comment about this lawsuit filed by the Reporter which he made to any number of

news outlets. In relevant part the comment described the Reporter as a left-

winged weekly tabloid. See Plaintiff Exhibits 86 90. This appears

unquestionably to be a statement about the political viewpoint of the Reporter.

Knells explanation that he meant that because the lawsuit came out of left field the

Reporter was left-winged begs credulity. The defenses after-the-fact explanation

that Knell was merely parroting Peters characterization of the email source as a

liberal PAC does not fare any better. These flimsy rationales offered for use of

the phrase left-winged are not important to the Courts conclusion. Rather, the

Court is persuaded by the fact that this phrase appeared in September 2013 emails,

almost nine months after the publication of the article alleged to have caused

animus. Similar reasoning applies to the email from Chris Sanchez, another

Communications Director, who commented on an article written in the Santa Fe

New Mexican by a reporter who had formerly worked at the Reporter. Sanchez

wrote: Embarrassing. Reporter should do his homework. No surprise given his

previous reporting for liberal tabloid. Pl. Ex. 91. The Court does not believe

these comments are sufficient to prove an unconstitutional motivation an

intentional discrimination based on viewpoint for actions that occurred in many

instances months before hand. Neither of these comments is comparable to the

types of directions to discriminate given in the cases cited above which were found

30
not to be sufficient to demonstrate a constitutional violation. See Raycom

National, Inc. v. Campbell, 361 F.Supp.2d 679 (N.D.Ohio 2004); The Baltimore

Sun Co. v. Ehrlich, 356 F .Supp.2d 577 (D.Md.2005); Snyder v. Ringgold, 40

F.Supp.2d 714 (D.Md.1999) (Snyder II ); see also Snyder v. Ringgold, No. 97-

1358, 1998 WL 13528 (4th Cir. Jan. 15, 1998). In fact, the testimony in this case

is that no directions were given to discriminate against the Reporter. See Tr.

3.31.17, p. 12; p. 79.

In sum, the Court rejects the Reporters constitutional claim. Its requests for

information or interviews which went unanswered were not comparable to the

mundane requests made by other newspapers. The Reporter was requesting special

treatment. Under the First Amendment, the Reporter had no right to this treatment.

Further, to the extent that other outlets were sent comments when the Reporter was

not, such a practice is consistent with the long recognized ability of a politician to

favor certain reporters and disfavor other reporters, even if that favoritism is based

on how the reporter covers the politician. Finally, the Reporter has not proven that

the actions of the Governors PIO were the product of viewpoint animus. For these

reasons and those stated above, the Constitutional claim in Count 2 is dismissed.

III. IPRA Complaints

There are five IPRA requests remaining in this case. While each will be

discussed in detail, the Court wishes to incorporate the stipulation of the parties in

31
the Pretrial Order, p. 27, as to the timing and description of these IPRA requests:

Reque Reques Requeste Respon Respon Description of Request

st No. t Date d By se Date se
From
12-048 06-20- Peters 08-14- Cason All emails sent from and
received by
12 12 keithgardner@susanapac.c
om,
sdarnell@susanapac.com,
rmkcang@yahoo.com,
gardners90@yahoo.com
and Gov. Susana Martinez
Susana PAC email address
from the following dates:
August 17, 2011; May 2,
2012; and June 13, 2012.
12-091 12-14- Horwath 01-25- Cason All pardon requests made
to Gov. Susana Martinez
12 13 Office made in 2012 and
all documents relating to a
denial or acceptance of
pardons held by the
governors office in the
year 2012
13-013 02-26- Peters 03-13- Cason All emails concerning
public business sent to or
13 13 from Keith Gardners
Gmail account,
kjgatc@gmail.com, on
October 15, 2011

32
Reque Reques Requeste Respon Respon Description of Request
st No. t Date d By se Date se
From
13-023 05-13- Horwath 06-21- Cason All written
communications between
13 13 members of the Governors
office and state Sen. Mark
Moores, R-Bernalillo,
regarding the state Senates
Rules Committee
confirmation hearings on
Education Secretary-
Designate Hanna Skandera
during the 2013 legislative
session
13-040 06-12- Schirtzing 09-20- Cason All records including
appointment books; daily,
13 er 13 weekly, and monthly
calendars and back up
materials which record the
full schedule of
appointments, including,
but not limited to, all
official meetings, public
appearances, personal
meetings and
appointments, and travel
for Governor Susana
Martinez from January 1,
2012 through December
31, 2012

A. Challenges to Privilege

IPRA 12-091 Pardon Requests

The parties entered into a stipulation regarding the timing associated with

inspection of the pardon records requested by IPRA 12-091. PTO, pp. 29-30. This
33
stipulation is incorporated into this Decision:

Date Event Record

Dec. 14, 2012 Mr. Horwath, on behalf of the Santa IPRA Request No. 12-
Fe Reporter, submits IPRA Request 091 (Ex. 13, Q)
No. 12-091 to Ms. Cason, the Office
of the Governors records custodian
Jan. 25, 2013 Ms. Cason, on behalf of the Office of E-mail correspondence
the Governor, responds to IPRA re: IPRA Request No.
Request No. 12-091 by producing 12-091 (Ex. 13, Q)
the 2012 final disposition letters
rejecting or granting pardons and
explaining grounds for claiming
privilege as to records not produced
Sept. 3, 2013 Plaintiff files its Complaint in First Complaint
Judicial District Court
Dec. 6, 2013 Defendants counsel sends a letter Privilege log and
attaching a privilege log for the 2012 transmittal letter (Ex. 39,
pardon documents not produced and S)
requesting clarification as to whether
Plaintiff seeks production of
additional 2012 pardon documents
Sept. 19, Defendant produces redacted records Transmittal Letter (Ex. U)
2014 from ten sample pardon files for
2012
Nov. 10, Defendant produces additional Transmittal Letter (Ex. V)
2014 redacted records from ten sample
files
Mar. 22, 2015 Court issues order granting in part Order on Defendants
and deferring a ruling in part on Motion for Partial
Defendants motion for partial Summary Judgment on
summary judgment on ten sample Ten Sample Pardon Files
pardon files
Apr. 7, 2015 Court issues order granting Order Regarding In
Defendants motion for partial Camera Review for
summary judgment on ten sample Defendants Motion for
files as to records subject to in Partial Summary
camera review Judgment on Ten Sample
Pardon Files

34
Date Event Record
June 19, Defendant produces redacted records Transmittal messages to
2015- from remaining 2012 pardon files counsel (Ex. 41, X)
July 10, 2015

Apr. 25, 2016 Court issues order granting in part Order on Cross-Motions
Plaintiffs motion for partial for Partial Summary
summary judgment on remaining Judgment on Pardon
2012 pardon files and granting in Records
part Defendants cross-motion for
partial summary judgment on
remaining 2012 pardon files

On December 14, 2012, Justin Horwath sent IPRA 12-091 request for all

pardon requests and all records regarding the grant or denial of those requests in

2011. On December 31, 2012, the request was described as broad and

burdensome, and Horwath was told more time would be needed. On January 25,

2013, a letter response was sent which claimed privilege for most of the documents

contained within the pardon files and stated:

The items in the possession of the Office of the Governor, pertaining to the
denial or acceptance of pardons for the year 2012, subject to the Inspection
of Public Records Act are each specific letter of acceptance, denial or
ineligibility that was issued to each applicant by the Governor.

Pl. Ex. 13. Plaintiff filed suit on September 3, 2013, seeking, among other things,

the pardon records that had been withheld. See Complaint, Seventh IPRA

Violation, p. 38. As a result of various pretrial motions, the Court reviewed a

sample of the pardon files and ruled that certain of the documents that were

withheld on grounds of privilege were not properly the subject of any privilege and
35
must be disclosed for inspection. While the Governor had previously offered to

turn over most, if not all, of these documents, she had done so by waiving the

privilege. The Reporter was not satisfied with this approach because it did not

want future requests to be subjected to the same claim of privilege. See generally

Tr. 3.30.17, p. 26. The Reporters claim as to this IPRA request is that it is entitled

to attorneys fees, costs, and compensatory damages, including the expense of

litigation needed to secure the pretrial rulings. See PTO, p. 2.

The Court believes that the claim of privilege on some of the documents in

the pardon file was unwarranted. Plaintiff was required to file suit to obtain these

documents. The Court is further of the opinion that the Governors offer to

produce the documents under a waiver was inadequate to meet the request. In this

regard this case is comparable to Cook v. Craig, 55 Cal. App. 3d 773, 780, 127

Cal. Rptr. 712, 716 (Ct. App, 1976), where the government argued that because it

had voluntarily turned over its procedures for a given year, the case was moot. In

rejecting the mootness claim, the court stated: [I]t is apparent that defendant's

unilateral decision to disclose its complaint investigation procedures is also

unilaterally rescindable. Given the position of defendant that it has no legal

obligation to disclose these procedures, and its voluntary disclosure only after

litigation was commenced, we cannot say that the dispute will not recur. In the

same vein, the Governor here could have reasserted the privilege claim in response

36
to a request for the pardon records for any succeeding year unless the validity of

that claim was adjudicated. Because the Reporter had to file suit prior to the

voluntary disclosure of the documents under a waiver of privilege and because the

privilege claim was disallowed, the Reporter will be allowed to recover fees and

costs related to securing the pardon files. All fee and cost requests will be taken up

at post decision proceedings through motions.

The Reporter seeks damages under Section 14-2-12.13 Plaintiff asks the

Court to award monetary damages for injuries it claims to have suffered. It seems

self-evident that if a newspaper wishes to publish a story about pardons granted or

denied in 2012, the news will be rather stale by 2015. No injury, however, was

specifically tied to this consequence. The injuries discussed during the trial were

variously described as harm to the readers ability to get information, loss of

confidence that the Reporter should be taken seriously, possible loss of readership,

and the inability to combat tyranny.14 No evidence was submitted that showed a

loss of readership or even a declination in reputation as a result of this IPRA

violation. In fact, there was evidence that the online readership was growing, not

declining.

Defendant argues that damages require proof of actual injury. Judge Hartz,

in a concurring opinion, wrote: [O]ne whose first amendment rights have been
13
The Reporter expressly eschewed statutory damages under Section 14-2-11. See SFR Rebuttal Brief, p. 6.
14
While the Court is of the opinion that the discussion of these injuries was primarily directed at the claimed
constitutional violation, the same injuries could arise from delayed or denied responses to IPRA requests.

37
violated is not entitled to damages measured by the abstract value or importance of

the first amendment, because such damages are not compensatory. Jacobs v.

Meister, 1989-NMCA-033, 108 N.M. 488, 775 P.2d 254 (citing Memphis

Community School Dist. v. Stachura, 477 U.S. 299, 309 n. 13 (1986)). The Court

in this case finds that Plaintiffs damage evidence was too nebulous to support a

compensatory damage award. In Faber the Supreme Court said: Compensatory,

or actual, damages . . . are awarded to place the plaintiff in a position that he or she

would have been in had he or she not suffered the wrong complained of. 2015-

NMSC-015, 20. Faber went on to note that [a] successful litigant is

compensated by obtaining the document he or she sought in the first place. If a

litigant is not made whole by the furnishing of documents, he or she can seek

actual damages. . . . Id. at 31. None of the evidence presented showed that

money was needed, over and above the production of documents to make the

Reporter whole.

B. Claims of Delay

IPRA 13-040 Calendar Records

IPRA 13-040 was received on June 12, 2013. It requested all records

including appointment books; daily, weekly, and monthly calendars and back up

materials which record full schedule of appointments including, but not limited to,

all official meetings, public appearances, personal meetings and appointments, and

38
travel for the Governor for 2012. On Monday, June 17, 2013, Cason wrote to the

requestor that there would be a response by June 27, 2013. On that date Cason

wrote that more time was needed as allowed by NMSA 1978, Section 14-2-10.

She said a response would be provided on July 27, 2013. On July 26, 2013, Cason

wrote that additional time was needed as allowed by Section 14-2-10 and a

response would be made by August 9, 2013. On August 8, 2013, Cason wrote

again stating the need for more time as allowed by statute and said a response

would be made on August 23, 2013. On August 23, 2013, Cason wrote: Due to

the broad and burdensome nature of the request the Office would need more time

and they would respond by September 6, 2013. On August 26, 2013, Schirtzinger

wrote to inform Cason that she was no longer at the Reporter and asked Cason to

send the response to her private email account. On September 20, 2013, (after suit

had been filed) Cason wrote:

As you may already know, the Office of the Governor has recently made
available the Governors Calendar at [the Governors website]. I believe if
you review the calendar it directly addressed your records request. . . .

Def. Ex. I (containing entire email train re IPRA 13-040). Thus it took 100 days

to respond with a website entry that was created during the time the request was

outstanding. No records that were used to create the website were ever produced.

Tr. 3.31.17, p. 83. Ms. Cason stated that it was a very extensive process that was

undertaken to respond as There was [sic] a lot of things that had to be reviewed.

39
There was [sic] a lot of security issues and everything else. Tr. 3.31.17, p. 83.

Ms. Cason did not, however, handle the Governors calendar, and she did not

participate in the work that led up to the production of the website reference. Tr.

3.31.17, p. 83.

As to this IPRA claim, Plaintiff claims that Defendant unreasonably and

unlawfully delayed responding to Plaintiffs IPRA Request No. 13-040 for 2012

calendar records. See PTO, p. 2.

IPRA Section 14-2-10 provides:

If a custodian determines that a written request is excessively burdensome or

broad, an additional reasonable period of time shall be allowed to comply
with the request.

As stated in the Attorney Generals Inspection of Public Records Act Compliance

Guide (7th ed. 2012) (introduced as Def. Ex. E), The Act does not define

excessively burdensome, or broad, but leaves it to the determination of the

custodian. Commentary, Compliance Guide, p. 38. As stated:

A request may be excessively burdensome or broad because it will require

the custodian to locate and review a large number of records, because the
requested records are difficult to locate or obtain or because other
circumstances exist that support the determination that the requested records
cannot be made available within 15 days of the request.

Id.

In general, the Court is sympathetic to claims that other work may delay

IPRA compliance; this delay is acceptable but only to a point. In the case of the

40
calendar request, the Court is of the opinion that what delayed the response was the

decision to put calendar entries, including public appearances, onto the website.

While this action is laudable and in keeping with the desire for transparency, it is

not a substitute or an excuse for not complying with IPRA. Just as an agency need

not create a document to respond to an IPRA request,15 an agency may not use the

time needed to create a website as a justification for not timely producing the

requested documents.

Cason was not in charge of the calendar; she was not the person who

handled the response to this request, and she could not testify from first hand-

knowledge as to the reasons for the delay. While it is certainly understandable that

security concerns might lead to the need to do a review before turning over the

information, it does not justify a 100 day delay in responding.

The Arizona Court of Appeals confronted a similar issue in a case arising

under the Arizona Public Records Act. The court there stated:

Under Arizona's Public Records Law, when records are subject to disclosure
the required response is the prompt and actual production of the documents.
. . . Whether a response is prompt depends on the factual circumstances of
the request. . . . The burden is on the agency to establish its responses to
requests were prompt.

Lunney v. State of Arizona, 2017 WL 6049445, at *7 (Ariz. Ct. App. Dec. 7, 2017)

(internal quotations & citations omitted). See also State ex rel. Wadd v. City of

15
NMSA 1978, 14-2-8(B) (2009)

41
Cleveland, 1998-Ohio-444, 81 Ohio St. 3d 50, 53, 689 N.E.2d 25, 28 (rejecting

Respondents assertion that their installation of a new computer system, as well as

Cleveland's policy of processing raw accident reports into final form prior to

providing access, supported their argument that they acted reasonably by delaying

access to requested accident reports and recognizing there is nothing to suggest

that Wadd would not be entitled to public access of the preliminary, unnumbered

accident reports following prompt redaction of exempt information such as Social

Security numbers); Libertarian Party of Cent. New Jersey v. Murphy, 384 N.J.

Super. 136, 140, 894 A.2d 72, 74 (App. Div. 2006) (rejecting a claim that a party

was not entitled to records because they were available on a website because of the

actual time delay in the posting of the minutes on the municipal website).

Similarly, in this case, there was no sufficient explanation given for a 100 day

delay.

Plaintiff claims that it is entitled to statutory damages under Section 14-2-11

which provides in relevant part:

C. A custodian who does not deliver or mail a written explanation of denial

within fifteen days after receipt of a written request for inspection is subject
to an action to enforce the provisions of the Inspection of Public Records
Act and the requester may be awarded damages. Damages shall:
(1) be awarded if the failure to provide a timely explanation of denial
is determined to be unreasonable;
(2) not exceed one hundred dollars ($100) per day;
(3) accrue from the day the public body is in noncompliance until a
written denial is issued[.]

42
NMSA 1978, 14-2-11 (1993). These statutory damages are available only when

a request has been denied. Faber v. King, 2015-NMSC-015, 12, 348 P.3d 173.

The Court is of the opinion that the late production of the calendar is not a denial

of a request under the records. This claim is more properly looked as a Section 14-

2-12 claim. This means that Plaintiff must prove it is entitled to compensatory

damages. The Court incorporates its discussion of compensatory damages with

regard to the pardon records and rejects the claim as not being supported by

substantial evidence.

Faber also recognized that a successful IPRA litigant can recover fees and

costs. The Reporter is entitled to recover costs associated with bring this claim.

These fees and costs will be considered in post-trial proceedings.

C. Claims of Inadequate Searches

1. IPRA 12-048 Private Email Use

IPRA Request 12-048 was received on June 20, 2012. It requested:

All emails sent from and received by keithgardner@susanapac.com,16

sdarnell@susanapac.com, rmkcang@yahoo.com, gardners90atyahoo.com,
and Gov. Susana Martinez Susana PAC email address from the following
dates: August 17, 2011; May 2, 2012; and June 13, 2012.

Pl. Ex. 17, Def. Ex. A. Thus, the request sought emails from five email addresses

16
There was no such email address. Tr. 3.29.17, p. 201. Contrary to what was suggested by the Reporters witness,
the Court does not believe the Governors Office had an obligation to substitute other email addresses which might
have existed for the one specified. The Court need not decide this issue, however, because Gardner said he would
have searched any susanapac email account to which he had access.

43
on three days. On June 25, 2012, the Records Custodian for the Governors

Office, Pamela Cason, responded that she was reviewing and would respond by

July 5, 2012. On that date Cason wrote that due to the broad and burdensome

nature of the request the office needed additional time. On August 7, 2012, the

Reporter writer wrote asking about the status of the request. On August 14, 2012,

Cason wrote back and provided one responsive document.

At the time this request was made or shortly thereafter the Reporter was

aware of email that was responsive to this request which was not produced. There

was an email from Larry Behrens to kgardner@susanapac.com and

scottdarnell@susanapac.com sent on May 2, 2012, which provided a list of non-

union teachers. (Pl. Ex. 19) This document, if extant at the time of the request,

would have been responsive. This email had been published by the Santa Fe New

Mexican. The Reporter made this inquiry to see if the Governors office has a

mechanism for locating emails dealing with public business that were sent on

private email accounts by staff members. Tr. 3.29.17, p. 208-09.

When Cason received this request she distributed it to all the staff in the

Governors Office. Pl. Ex. 105. She asked Scott Darnell and Keith Gardner to

search as she did not have access to the non-governmental emails that were the

subject of the inquiry. Tr. 3.31.17, p. 146. Gardner, the Governors Chief of Staff,

had no recollection of searching in response to this particular email, but he testified

44
that he would have searched his yahoo account for any responsive emails. As to

the keithgardner@susanapac.com email address, Gardner confirmed that it never

existed. He said despite that, if he had access to the susanapac accounts, he would

have searched for kgardner@susanapac.com, but he did not think he ever had

access to those accounts. Tr. 3.31.17, pp. 41-42. Gardner explained that he had

password issues with those accounts so he may not have been able to access them.

Tr. 3.31.17, p. 45.

Darnell was also asked to search for records responsive to this request. He

did this when Cason came to his office. Tr. 3.31.17, p. 166. Darnell said he

searched the personal email and the state email for documents, but did not find the

Behrens email. Tr. 3.31.17, p. 169. He seems to have searched his susanapac

account. Tr. 3.31.17, p. 179, 181. Darnell said because this email was a duplicate

and a convenience copy to him unrelated to his agency business, he had no

obligation to retain it. Tr. 3.31.17, p. 170. Darnell was a direct recipient of this

email as opposed to a cc. Darnell said his deletion of the Behrens email was

consistent with Plaintiffs Exhibit 123, Checklist for Retention of Email from the

State Records Center. Tr. 3.31.17, p. 184.

Plaintiffs Exhibit 123 stated, in relevant part:

Is this a message that my co-workers are receiving too? Am I responsible

for retention or is someone else responsible?

45
Mr. Darnell also testified he complied with the definitions of transitory and

non-records found in 1.13.4.Z and KK, NMAC (Def. Ex. F). Tr. 3.31.17, p. 186.

At no time while the request was pending did the Reporter narrow the

request or explain that it was looking for the Behrens email. Tr. 3.31.17, p. 147. If

the Reporter had specified the Behrens email at any time, the search could have

been narrowed and done much faster. Moreover, Cason could have forwarded the

request to the Public Education department which was the entity that should have

retained the email for record keeping purposes. In fact, another person made an

IPRA request to PED for the Behrens email and received it. Tr. 3.31.17, pp. 148,

182.

As to the Behrens email (Pl. Ex. 19), Gardner would have produced it if it

was in his email account. His explanation for why it was not in his email account

was that he was not the action recipient or the final holder of the email so he had

no obligation to retain the email. Tr. 3.31.17, p. 46. Gardner was of the opinion

that he was not the person with the obligation to retain the email so he could have

deleted it. Tr. 3.31.17, p. 48.

Following the response which did not include the Behrens email, Peters

contacted Cason and asked her why she did not produce the Behrens document in

response to his IPRA request. Pl. Ex. 18. Cason was unable to remember if she

did any follow up after she received this inquiry. Tr. 3.31.17, p. 86.

46
 Before leaving this IPRA request, the Court wishes to briefly discuss the

Attorney General Complaint that was filed regarding IPRA 12-048. On August 17,

2012, Joey Peters filed a complaint with the Attorney General alleging that in

response to his request for emails from private email accounts, the Governors

Office had not produced the Behrens email. He complained that the Behrens email

had been withheld without explanation as required by statute. Pl. Ex. 20. The

Attorney Generals Office informed the Governors counsel that it believed the

Governors response was inadequate because it did not clearly cover any

responsive public documents found in the private email accounts listed in the

request. Pl. Ex. 22. The Governors Office apparently responded that no

documents held in the Governors Office had been withheld. See Pl. Ex. 24. The

response said the Governors Office did not withhold or deny any responsive

public documents held by our Office. Pl. Ex. 24. The Attorney General found

this response to be inadequate because it did not address whether public documents

contained in the susanapac email accounts or other private email accounts had been

withheld. Pl. Ex. 24.

In court, however, the defense did provide testimony concerning the

searching of the private email accounts. It does appear from the testimony that the

personal email accounts (but not all the susanapac accounts) listed were searched.

There is no evidence, however, that all the susanapac accounts were searched.

47
Based on Gardners testimony it is a fair inference that he did not search any

susanapac account because he claimed he always had problem with access because

of password difficulties. Darnell may have searched his own susanapac account

but there is no evidence he searched the Governors susanapac account or any

other account at that address.

2. IPRA 13-013 Gardner Email on October 15, 2011

Plaintiffs Exhibit 106 contains IPRA request 13-013 which sought:

All emails concerning public business sent to or from Keith Gardners Gmail
account, kjgatc@gmail.com, on October 15, 2011.

This request was received on February 26, 2013. On March 13, 2013, the

Governors Office responded that The Governors Office did not have any

responsive emails. (Pl. Ex. 30)

This request concerned the Reporters search for emails that appears as

Plaintiffs Exhibit 31, an exchange between Pat Rogers, an attorney, and Gardner

at two non-governmental emails and another email. The Rogers exchange dealt

with the locale for a proposed breakfast with a representative of Rogers client who

was in the gaming industry. In addition to proposing a new locale because it

would be more private, Rogers also commented on proposed action to cut funding

for his clients contract. This exhibit also had an email that appeared to be from a

phone number regarding a meeting with the Governor.

Cason testified that when she received this request, she asked Gardner to
48
search for any responsive documents. She followed up with Gardner who said he

had no responsive documents. Tr. 3.31.17, p. 11. Gardner testified that he did not

specifically recollect what he did in response to IPRA 13-013, but his usual

practice would have been to search his email account for emails requested. His

explanation for why nothing was found that was responsive to IPRA 13-013 is that

he would not have kept the emails since they were transitory matters. Gardner

testified that because the Rogers email would have resulted in a calendar entry

after he forwarded the email to his secretary he would have discarded the email.

Tr. 3.31.17, p. 74-76. Cason agreed that this was not the type of email that needed

to be retained. Tr. 3.31.17, p. 152-53. As to the second email in Exhibit 30,

Gardner had no recollection of seeing it. He testified that it was the kind of email

he would not retain because he was not involved in the transaction identified in the

message which was addressed to Ryan. According to Gardner, the person who

should have retained it was the person to whom it was written if that person

thought it was a public record. Tr. 3.31.17, p 74-76. Regardless of whether or not

the email was transitory, if it existed at the time an IPRA request was received, the

document would be produced. Tr. 3.31.17, p. 74.

Both IPRA 12-048 and 13-013 have in common a use of non-governmental

49
emails to conduct public business.17 This issue is relevant to the IPRA claims

because it raises concerns about the Governors Office procedures for reviewing

non-governmental emails for public records in response to IPRA requests.

Gardner testified that Pamela Cason, the person responsible for responding to

IPRA requests directed to the Governors office, would request that he search for

any responsive documents if the IPRA request expressly concerned him or if it was

a broad request to which he might have responsive documents. Tr. 3.31.17, p. 55.

Part of the background on why the Reporter was requesting emails from

nongovernmental accounts is found in a request for response that Jason Horwath

asked Scott Darnell: had Keith Gardner told Brian Powell that Gardner did not

send emails on his government account to avoid court and jail time. Def. Ex. A-2,

p. 156. In response, Darnell said: Attached is the audio of the Gardner

conversation that actually provides the context, along with a statement. Def. Ex.

A-2, p. 156. Plaintiff wished to introduce a transcript of a portion of this audio.

Over Defendants objection, the transcript was allowed into evidence subject to the

Defendant being given the opportunity to demonstrate that the portion was not an

accurate transcription. Tr. 3.31.17, pp. 25-27. No such showing was attempted.

Therefore, the Court will maintain its ruling on the admissibility of the transcript.

The section of the transcript on which the Plaintiff focuses is the following
17
It is uncontested that private emails used for public purposes or to conduct public business are public records
under IPRA. See Office of the Attorney General, Commentary, Inspection of Public Records Act: Compliance
Guide, p. 25 (2015) (introduced as Def. Ex. E).

50
discussion which takes place in a conversation between Powell and Gardner about

third parties who have sent emails and made Facebook postings:

Gardner: I pull computers up I forensically look at computers, you know,

at least one or two a week for all the people up there.
Powell: For people looking at nasty sites or --
Gardner: That or just emails they shouldnt be sending
Powell: Really?
Gardner: -- just doing shit they are not supposed to. So theres a way, yeah.
And thats, see thats all discoverable.
Powell: Hmmm.
Gardner: Thats why I never email on my state email. It could come back to
bite my ass. Its all done offline.
Powell: Right.
Gardner: I never -- Shit, I never use my state email. Because its all done on
different stuff. I dont want to go to court and jail.

Pl. Ex. 125. Defendants major objection to the exhibit was that the quotation was

taken out of context. The context could have been provided by a transcript of the

remainder of the recording or the entire recording, but use of the entire recording

would have unduly embarrassed Gardner and members of his family without

providing relevant information. The entire conversation concerned a very sensitive

issue involving some of Gardners family which he did not want to discuss in

court. Gardner was allowed, however, to provide the context of his comments

without going into embarrassing details.

Gardner explained that the entire conversation was within the context of

Gardner explaining that, unlike other parties being discussed, Gardner would never

use his state system for anything other than governmental business. As Gardner

51
testified, if he were to use his state system for personal reasons he would get into

trouble. Tr. 3.31.17, pp. 50-51.

The Court credits Gardners explanation of the context. It does not make

sense to attribute a broader meaning to the discussion of using his state email

because he was aware that emails discussing state business, even if on a personal

account, were still public records subject to disclosure under IPRA and retention

policies. In fact, Gardner said if he received an email on his personal account that

dealt with state business he would forward it to his state email account or to his

assistant so it could be retained. Tr. 3.31.17, p. 78. He would gain no advantage in

terms of hiding matters from public scrutiny by using only his personal email

accounts. Further, there is evidence which disproves the statement is an absolute

because we have examples of use of Gardners state email. See, e.g., Pl. Ex. 105.18

3. IPRA Request 13-023 Communications with Sen. Mark Moores

On May 23, 2013, Justin Horwath sent an IPRA request seeking all written

communications between members of the Governors office and state Sen. Mark

Moores, R-Bernalillo, regarding the state Senate Rules Committee confirmation

hearings on Education Secretary-Designate Hanna Skandera during the 2013

legislative session. Pl. Ex. 14. A response was initially promised on May 28,

2013. After two extension letters were issued, on June 21, 2013, a response was
18
Other examples of the use of Gardners state email (Pl. Exs. 106-08) may not be significant as they were
generated after Governor Martinez issued a statement directing all state employees under her authority to use official
state email when conducting state business. Def. Ex. H.

52
made that the Office of the Governor had no responsive documents. Pl. Ex. 14.

As with the two previously discussed IPRA requests, Horwath became

aware of a document that would be responsive if it existed in the Governors files.

There was an email from Janelle Anderson to Sen. Moores which contained a draft

letter for Sen. Moores to send to the Chair of the Senate Rules Committee

regarding complaints he had about the confirmation hearing for then Secretary-

Designate Hannah Skandera. Pl. Ex. 16. A copy of this letter was obtained from

the Legislative Council Service,19 which obtained it from Sen. Moores.

Anderson was at the relevant time the Policy Director for the Governors

Office. Tr. 3.31.17, p. 134. By the time the request was made, Anderson was no

longer with the office. Cason, therefore, conducted a search of Andersons P.S.T.

file. A P.S.T. file contains the email accounts of former personnel. (Tr. 3.31.17, p.

133; see also Def. Ex. A-38, pp. 82-83) Cason could not find any responsive

documents in Andersons P.S.T. file. Cason also asked Anderson to search, and

she found nothing. Tr. 3.31.17, p. 135. Cason attributed this to the fact that the

email contained a draft letter, and drafts are not required to be retained.

As to the three IPRA requests discussed in this section, Plaintiff contends

that Defendants search for responsive public records contained in text messages

and emails was inadequate and unlawful. See PTO, p. 2.

19
LCS itself responded to an IPRA request that it had no documents (Pl. Ex. 15), but it sought documents from Sen.
Moores as an accommodation.

53
 The law is clear that when a person conducts public business on a private

email account, the record created is a public record subject to inspection under

IPRA. Commentary, IPRA Compliance Guide, p. 25 (stating if email is used to

conduct public business, the email is a public record even though a personal

account is used. The person using the personal account is effectively using,

creating, receiving, maintaining or holding the public record on behalf of the

public body.) Thus, if susanapac or a personal email was used to communicate

about public business, the email was a public record that had to be disclosed if it

existed at the time of an IPRA request.

We know because of revelation of certain emails through other sources that

public records did exist on private email accounts at some point in time. This

recognition does not alone mean there was an IPRA violation. As recognized by

federal cases interpreting the Freedom of Information Act (FOIA), [T]he issue

to be resolved is not whether there might exist any other documents possibly

responsive to the request, but rather whether the search for those documents was

adequate. Callaway v. U.S. Dept of Treasury, 893 F. Supp. 2d 269, 273 (D.D.C.

2012)(citation omitted), and Safecard Servs., Inc. v. SEC, 926 F.2d 1197, 1200

(D.C. Cir. 1991). Thus, the fact that the . . . searches did not produce the specific

documents the plaintiff sought does not render the searches inadequate.

Cleveland v. U.S. Dept of State, 128 F. Supp. 3d 284, 296 (D.D.C. 2015). As

54
noted by Callaway, FOIA only obligates [the government] to provide access to

those [records] which it in fact has created and retained. 893 F. Supp. 2d at 273

(citing Kissinger v. Reporters Comm. For Freedom of the Press, 445 U.S. 136, 153

(1980).

In this case, the Court finds the searches done in response to 13-013 and 13-

023 were shown to be adequate. The personal email of Gardner was searched for

any responsive emails and Andersons email was searched. As to these two

requests, the Court is of the opinion that the complaint is not, in fact, that the

searches were inadequate, but rather the complaint is that records were not retained

which Plaintiff believes should have been retained. That issue, however, is not

properly before the Court. IPRA is not a records retention act. An IPRA lawsuit is

not the proper vehicle for investigating why a record was deleted before an IPRA

request for that record was submitted. See Flowers v. IRS, 307 F. Supp. 2d 60, 72

(D.D.C. 2004). See also Order filed April 29, 2016. This case was not brought as a

Records Retention Act case. The Court declines to give an advisory opinion on

whether the Governors office is correctly interpreting its duty under the Records

Retention Act. Courts decline to issue an advisory opinion when an issue is not

properly before them. See, e.g., Insure New Mexico, LLC v. McGonigle, 2000-

NMCA-018, 1, 128 N.M. 611, 995 P.2d 1053.

The Court does have an issue with regard to the search for documents

55
responsive to 12-048. It does not appear from the testimony that anyone searched

any of the susanapac emails, other than Darnells. Cason certainly did not and she

did not reach out to anyone who might have access to these emails to do so.

Gardner could not because he had no access. Darnell testified that he searched his

own susanapac email, but he did not testify to searching other susanapac emails.

It is the Courts opinion that if people create public documents on private email

accounts, then when an IPRA request is made the governmental body for whom

those people are employed has an obligation to search or at least attempt to search

those private accounts. To hold otherwise would make it too easy to hide from

inspection the very types of public records which are most in need of disclosure.

As the D.C. Circuit recognized:

The Supreme Court has described the function of FOIA as serving the
citizens' right to be informed about what their government is up to. U.S.
Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749,
773, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (internal quotation marks and
citation omitted). If a department head can deprive the citizens of their right
to know what his department is up to by the simple expedient of maintaining
his departmental emails on an account in another domain, that purpose is
hardly served.

Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, 827 F.3d 145, 150 (D.C.

Cir. 2016). As CEI held, when an agency head uses a private email account at an

outside entity to store public documents, the records in that email account must be

searched and produced in response to a FOIA request.

We already know of one email that went to a susanapac address which was
56
not disclosed by the Governors Office but which the Reporter has in its

possession,20 and so it might be argued that requiring further searches is a pointless

exercise, but the Court disagrees. The Reporter was looking not only for the

Behrens memo, but also it was looking for any other public records created on

private email accounts. Unless the searches are undertaken, we cannot know if

such records exist. The Court will therefore order the Governors Office to take all

reasonable steps to forthwith attempt to have susanapac emails accounts for Keith

Gardner and Gov. Susana Martinez from the following dates: August 17, 2011;

May 2, 2012; and June 13, 2012, searched for any public records. Once such

attempt is made, the results will be disclosed via a certified declaration filed with

the Court. If for any reason this order cannot be carried out, the reasons for such

impossibility will be explained in detail in a certified declaration filed with the

Court.

As to all IPRA requests discussed above, the Governor challenges them as

not being specific. The Court rejects this argument. As to 12-048. 13-013, and 13-

023 the requests specified particular people and particular times either by date or

20
It cannot be argued that the fact that the Reporter already had the Behrens email, the Moores email, or the
Rogers email negates the Governors Offices duty to respond adequately to an IPRA request which might reveal
such documents. Section 1421(A), which provides public policy exceptions to IPRA's disclosure requirements,
does not include prior possession as a legitimate ground for withholding public records. See Republican Party of
N.M., 2012NMSC026, 16, 283 P.3d 853 ([C]ourts now should restrict their analysis to whether disclosure
under IPRA may be withheld because of a specific exception contained within IPRA[.]). Appellant cites no cases
supporting the proposition that an IPRA litigant's possession of a public record negates an agency's duty to respond.
Am. Civil Liberties Union of New Mexico v. Duran, 2016-NMCA-063, 37, 392 P.3d 181.

57
legislative session. The Governors argument ignores that Reporters purpose of

seeking to find other public record emails in addition to the ones revealed by other

means. As to the pardons request, the Reporter wanted all non-privileged records

relating to the pardon decisions for a given year. Again, this is specific. See

generally Am. Civil Liberties Union of New Mexico v. Duran, 2016-NMCA-063,

26, 31, 392 P.3d 181. By reasonable particularity the Act does not mean that

a person must identify the exact record needed, but the description provided should

be sufficient to enable the custodian to identify and find the requested record.

Commentary, Compliance Guide, C, p. 32.

D. General Challenges to IPRA Procedures Employed by the Governors

Office

General Procedures Applicable to all IPRA Requests

Gardner described the procedures that were employed in the Governors

office to search for records in response to an IPRA request. First all employees

were trained on IPRA and had access to the Attorney Generals Guide (Def. Ex.

E). There were also lawyers with whom the IPRA requests could be discussed.

Tr. 3.31.17, pp. 60-62. Pamela Cason, in addition to her other duties, was the

records custodian for purposes of IPRA requests. Tr. 3.31.17, p. 99. Cason said

that on her first day she was given the Attorney Generals Guide to IPRA

Compliance (Def. Ex. E) and told to learn it. According to her testimony, she

followed the Compliance Guide. Tr. 3.31.17, p. 107-08. Cason also said that she
58
was familiar with the electronic records management guidelines (Def. Ex. F) and

that she followed these regulations. Tr. 3.31.17, p. 108. With regard to training

Cason said that she was trained by the attorneys in the office and that she went to

the Attorney Generals quarterly training session. If she could not go, an attorney

from the office would go. They would then discuss any changes. Tr. 3.31.17, p.

122-23. Cason also went to training put on by New Mexico Foundation for Open

Government. Tr. 3.31.17, p. 124. They also discussed IPRA at weekly office

meetings. Tr. 3.31.17, p. 124. Cason also said that she informed the staff how to

use the search function in Outlook. Tr. 3.31.17, p. 126.

When an IPRA request was received, Cason would review it and note

deadlines, specifically the three and 15 day statutory deadlines. She would assign

a number to the request. During the initial three days she would talk with the

Governors attorneys and determine to whom the request needed to be sent. She

would then email the request to anyone who was to be involved in obtaining

responsive documents. She would create folders for each request and would put

responses she got into the folder. Tr. 3.31.17, p. 99-101. She would use the forms

suggested in the AGs Guide for sending letters regarding the requests. Tr.

3.31.17, p. 111-13. Cason did not tell people what the due date was when she

asked them to search, but if the time was running out, she would hunt them down

and ask them about the response. Tr. 3.31.17, p. 133. Cason would determine, in

59
consultation with the attorneys, whether the request was burdensome. Tr. 3.31.17,

p. 113. If a request concerned a private email account, and the account holder had

left the Governors Office, Cason would not contact them to ask them to search for

public records on their private accounts. Tr. 3.31.17, p. 238-39.

If a request dealt with particular people, Cason would not do the search

herself but would contact the people and have them do the search. Tr. 3.31.17, p.

120. If a person who might have responsive documents was no longer at the

Governors Office, Cason herself would search the archived files for any

responsive documents in that persons computer accounts. Tr. 3.31.17, p. 133. The

archived files did not contain any private email account records.

With regard to policies regarding the deletion of emails or the keeping of

documents, Cason said that the Governors Office followed the rules established

by the Commission on Public Records and that the staff and she were trained by

the State Records and Archives Office as to what needed to be kept and what could

be discarded. Tr. 3.31.17, p. 143-44. Regardless of whether a document was

subject to being retained or permitted to be discarded, if there was an IPRA request

and the Governors Office was in possession of the document at the time of the

request, it will be produced and would not be discard even if a non-record or

transitory. Tr. 3.31.17, pp. 134, 187.

Cason said that she did consider her need to perform her other duties when

60
responding to IPRA requests. She gave preference to Constitutional mandates,

such as judicial appointments. Emergencies, such as fires, could also take people

necessary to a response out of the office. In addition Cason had to work on

extraditions, pardons, and appointments while the IRPA requests were pending.

Tr. 3.31.17, pp. 92-98. In support of this consideration of her other duties when

determining if more time was needed, Cason cited the Compliance Guide which

states that the duty to provide reasonable opportunities to inspect public records

does not mean that a request to inspect must take precedence over all other

business of the public body. Rather, the duty to provide reasonable opportunities to

inspect permits a records custodian to take into account the public bodys office

hours, available space, available personnel, need to safeguard records and other

legitimate concerns. . . . Generally, the obligation to provide reasonable access to

public records should not require an office to disrupt its normal operations. . . .

Def. Ex. E, pp. 28-29.21

The following facts are included for informational purposes: during 2013 the

Reporter made 23 IPRA requests to the Governors Office. (Def. Ex. K) A

summary of these requests is found in Def. Ex. L. Defendants Exhibit A-13

shows that in comparison to the Reporters 23 requests, the Albuquerque Journal

21
This particular paragraph, however, seems more like a time, place, and manner restriction than an excuse for
delaying in responding to the requests. This paragraph of the Guide states that this recognition is [s]ubject to the
Acts specific requirements[.] Included in those specific requirements are the response time limits.

61
made three IPRA requests and the Santa Fe New Mexican four requests. The

television stations made even fewer requests.

The evidence also showed that in June 2013, there were numerous fire

emergencies which involved the Governors Office. Tr. 3.31.17, p. 159. This and

other business of the Governors office often increased the time it took to respond

to IPRA requests.

This discussion is included, in part, to give context for all of the other IPRA

claims. It is also included because Plaintiff brings general challenges to

Defendants IPRA policies and procedures, claiming they are legally deficient

because: 1) there is a standard-less delegation of records custodian duties that lacks

timelines, guidelines and training, 2) there is a lack of clear search protocols and

training for staff, 3) there is a failure recognize documents as public records and a

failure to retain and produce electronic public records, and 4) there is a failure to

produce public records within statutory deadlines. See PTO, p. 2-3. In response to

the general claim of inadequate procedures, Defendant states that there cannot be

injunctive relief in the abstract and that injunctive relief can be had only as to

specific violations of IPRA shown to have been committed. See PTO, p. 18-19.

The Court is inclined to agree with Defendant that there is no IPRA cause of

action for general inadequacy in practices and procedures. This, however, is not

dispositive because the Court finds that in general the procedures are adequate.

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The testimony demonstrated there was adequate training. The Records custodian

was aware of the timelines and had procedures in place to comply with them. As

to the timeliness of the disclosures, as was discussed above, the statute vests the

records custodian with broad discretion in determining whether a request is broad

or burdensome needing additional time. As to the one area in which the Court

found an unreasonable delay the calendar requests for 2012 the website has

now been built and is available. There is no indication that the delay that occurred

in 2013 will occur again or that it evinces a systemic problem. While the Court

found in one instance there was a failure to adequately search private email

accounts for public records, the Court is of the opinion that this failure does not

justify general injunctive relief. The Court believes that the Governors staff will

follow the directives in this order with regard to private email accounts and that an

injunction will not be needed. Once again as to the adequacy of the Governors

record retention policies, that is not before this Court and will not be the basis for

any finding or relief.

In summary then, the Court finds the following IPRA violations:

1. IPRA 13-040 there was unreasonable delay;

2. IPRA 12-048 there was an inadequate search of susanapac accounts for

Gardner and for the Governor for public records on the dates specified in the

request.

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 3. IPRA 12-091 there was an improper claim of privilege which led to an

unreasonable delay in disclosing the records.

As to all other IPRA requests, the claims are rejected and the claims are dismissed.

IV. Conclusion

For the reasons given above, the constitutional claims are rejected. The

remaining claims related to IPRA Requests 12-048 are granted in part; the claims

related to IPRA 12-091 are granted; and the claims related to IPRA 13-040 are

granted. All other IPRA claims are denied.

The parties will be given 14 days from the date this decision is accepted for

filing to informally notify the judge and the other party if it/she is thinking of

appealing. This information may be conveyed informally by email. Email to the

judge should be sent to sfedsms@nmcourts.gov. If either party indicates an

intention to appeal, then both parties will have 14 days from the date that

notification is sent to submit to the Court proposed findings of fact and conclusions

of law. These proposals should be filed and submitted. Submission to the judge

should be in Word format to the above email address. Thereafter the Court will

enter its findings and conclusions and will provide further instructions regarding

submission of a judgment. Following entry of judgment, post-judgment motions

regarding attorneys fees and costs, consistent with this decision, will be

entertained.

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__________________________________________
Sarah M. Singleton, Judge Pro Tem
Sitting by Designation

On the date of acceptance for efiling copies of the above decision were eserved on
those registered for eservice in this matter.

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