Another One

Reporter's lawsuit alleges that Martinez administration withheld law firm billing records for a year

A contributing editor for the Santa Fe Reporter is suing the administration of Gov. Susana Martinez for violating the state's open records law.

Jeff Proctor, an independent journalist who reports on the criminal justice system, filed the complaint in state District Court Thursday afternoon, asking for the legal invoices he initially requested, as well as monetary damages, fines and attorney's fees.

"I think it touches on all the primary tenets of the IPRA statute—missed deadlines, privileges claimed that we don't believe apply to most of what was requested," attorney Frank Davis tells SFR. Davis represents Proctor along with David Urias of the law firm Freedman, Boyd, Hollander, Goldberg, Urias and Ward.

The lawsuit says Proctor made a request under New Mexico’s Inspection of Public Records Act in June of last year, asking to see invoices, bills and payments for legal work done for Martinez by attorney Paul Kennedy from September 2013 to June 2016. Kennedy has represented Martinez as a contract attorney on several occasions, including defending her in a separate lawsuit filed by SFR. [“A Small and Scrappy Watchdog,” March 31, 2017]

According to the complaint, Proctor made his request to the state's General Services Department on June 17, 2016. The department didn't respond until June 24, five business days after the request. State law only allows three business days for agencies to acknowledge a request. The department then promised a response by July 5, outside the 15-day deadline after which agencies can incur penalties for withholding records.

The department didn't make that deadline either.

After Proctor filed a complaint with the New Mexico Attorney General's open records section, the department sent him three contracts, which included Kennedy's retainer fees for the state in separate IPRA lawsuits against the Martinez administration. Billing statements and invoices were not included, even though the contracts stated Kennedy should be providing detailed billing statements to the state. GSD also did not provide contracts, invoices or billing records related to other known cases for which the administration hired Kennedy.

Over the next 10 months, the complaint says, GSD played a game of cat-and-mouse with Proctor, trying to claim attorney-client privilege for billing records that would show how much public money was headed Kennedy's way. State law allows for sensitive attorney-client information to be redacted from such invoices, but Davis says well-established case law shows that the hours billed and the rate don't fall under any exception to disclosure.

"My understanding is that [Proctor] just wants to know what's been billed to the state," Davis says.

"I think the value [of this suit] is set forth in the IPRA statute itself. We all have an interest in an informed electorate. It makes for better governing when the public has access to this kind of information; particularly in the financial situation that the state now finds itself."

Peter St. Cyr, the executive director for New Mexico Foundation for Open Government and a former contributor to SFR, urged the Martinez administration to uphold its stated commitment to transparency.

"The New Mexico Foundation for Open Government encourages Gov. Martinez to direct the staff at the General Services Department to immediately comply with the law and provide Mr. Proctor all the documents that have been blocked for too many months," St. Cyr said in a statement.

Lawsuits demanding the release of public information that has been withheld are relatively rare. They can be expensive and many government bodies already have staff attorneys who handle defending against such complaints.

Kennedy has repeatedly declined to address his hourly rate with SFR or reveal how much taxpayers are spending on his services to represent the governor. He did not reply to a voicemail left on his cell phone asking for comment on this story.

Martinez spokesperson Michael Lonergan directed a request for comment to GSD, whose office did not reply to SFR's voicemail by presstime.

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