Supreme Court Narrows IPRA Damages

$100 a day fine not applicable to wrongfully witholding public records

In a ruling today, the New Mexico Supreme Court limited the types of damages the public can seek in the state Inspection of Public Records Act.

Under the state public records law, known as IPRA, a state government agency's failure to hand over public records on time is punishable by an up to $100 per day fine until the records are provided. But if an agency wrongfully refuses to disclose public documents and is later compelled by court to hand them over, that $100 per day threshold fine no longer applies, according to the high court ruling.

"The reason this dispute arose is because IPRA is not completely clear in terms of what it takes to recover damages," says Greg Williams, an attorney and board president of the New Mexico Foundation for Open Government.

The ruling stems back to a lawsuit against former state Attorney General Gary King over alleged gender discrimination in his office. In 2010, attorney Dan Faber, who was representing three women in the lawsuit, sent a public records request to King's office asking for employment information for all attorneys who had worked in the Attorney General's office since 1987. King's office denied the request, stating that the records "involve a current lawsuit and appear to circumvent the discovery process."

The District Court didn't agree with King and ruled that his office violated IPRA. Faber subsequently asked the courts for damages. IPRA says that government agencies that wrongfully deny requests are subject to damages, but it's not specific on what kind of damages. Faber asked for damages based on the $100 per day fine that agencies are subject to when they delay handing over public records.

The courts initially awarded Faber damages for King's wrongful denial of public records. Today's ruling changes that.

The change means that people who sue agencies under IPRA for wrongfully withholding public documents must provide the burden for damages. A person suing, for example, would have to show how the withholding of public documents impacting them financially in order to receive damages.

Though FOG doesn't have an official position on today's court ruling, Gilmore calls it "a bit of a concern."

"Occasionally there are government entities that seek to evade their responsibilities under IPRA rather than do anything they can to comply under IPRA," he says.

But Williams says that government agencies shouldn't read the ruling to mean their IPRA responsibilities are eased. He adds that it would be "worth the Legislature's time to consider whether it can provide more clarity on the issue of damages" under IPRA. A previous version of this post misidentified Greg Williams.  Read today's ruling below:

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