Denied

The New Mexico Supreme Court has denied the Santa Fe Reporter’s petition for certiorari in a long-running legal battle with the City of Santa Fe over whether basic facts about how the government disciplines its employees should be public record.

The high court’s denial, issued Sept. 23, effectively ends the case. And it leaves in place a legal loophole that allows state, city and county governments across New Mexico the option of releasing information—or not—about whether and how they’ve punished police officers, trash collectors, firefighters or anyone else who draws a taxpayer-funded paycheck.

SFR believes the facts surrounding public employee discipline should be released upon request under the state Inspection of Public Records Act (IPRA); Mayor Alan Webber’s administration, like its predecessor, believes those records can be withheld under an exception to IPRA that deals with “matters of opinion in personnel files.”

In short, SFR’s position both legally and from a public policy perspective is that a letter of reprimand, a 40-hour suspension or a termination are facts, not opinions. Several other news organizations, including the Albuquerque Journal and the Santa Fe New Mexican, joined the cause, filing amicus briefs in support of SFR’s case. So, too, did the New Mexico Foundation for Open Government, the state’s leading government transparency organization.

Two public employee unions, including the Santa Fe Police Officers Association, filed briefs in support of the city’s policy.

The Supreme Court has now declined to break the standoff in a brief, written order in which all five justices concurred but did not explain their rationale. (It is standard practice for the court to grant or deny such petitions without explaining why.)

“After four years of litigation by the Santa Fe Reporter to try to remove this crucial barrier to democracy, the New Mexico Supreme Court’s discretionary refusal to even hear this case was unexpected and a major disappointment,” SFR attorney Daniel Yohalem says.

The City Attorney’s Office views the court’s refusal to take up the case differently.

“The New Mexico Supreme Court’s denial of certiorari upheld the Court of Appeals’ memorandum opinion that applied the law that has been in place for decades: Public employee disciplinary records are not subject to IPRA,” reads a statement from the office provided by city spokesman Dave Herndon. “The Court of Appeals recognized that a change to the state’s IPRA law would require legislation.”

SFR first tried to pierce the city’s secrecy policy in 2018, but then-First Judicial District Judge Greg Shaffer—who is now Santa Fe County manager—denied the newspaper’s writ of mandamus when SFR sought discipline records about Jeramie Bisagna, one of two officers who fired shots at Anthony Benavidez in 2017, killing him.

The newspaper’s legal counsel tried again in 2019, filing a lawsuit in state District Court after the city denied an IPRA request from SFR for the discipline records of four different officers, all of who had been the subjects of citizen complaints and insurance settlements. This time, the newspaper homed in on a 2012 state Supreme Court case that appeared to overturn previous rulings that came down in favor of secrecy. First Judicial District Judge Bryan Biedscheid offered a mixed-bag order in the case, handing partial victories to both the city and SFR.

The state Court of Appeals was the next stop, where a three-judge panel declined to overturn previous cases that allow governments to withhold discipline records under the “matters of opinion” exception. That prompted the newspaper’s failed gambit with the state Supreme Court.

“The current case law denying public access to police [and other public employee] discipline records under IPRA is a very serious misreading of IPRA and a significant barrier to the public’s ability to hold the government accountable for the illegal activities of its employees,” says Yohalem.

SFR has reported on the city’s secrecy policy for years, first digging into the issue for a 2017 cover story. The newspaper’s investigation found that several cities and counties around the state release employee discipline information on request, while others, including the City of Santa Fe, do not.

Around the time the cover story was published, then-Santa Fe Mayor Javier Gonzales asked state Attorney General Hector Balderas to issue a formal opinion clarifying the law under IPRA. SFR also asked Balderas whether discipline records should be released in an interview for the cover story; he handed the telephone to a deputy AG, who said cities that release the information are following the law, as are cities that don’t. Balderas never issued a formal opinion, as Gonzales had asked.

Lawmakers have tried to provide for public employee discipline transparency, including in 2021, when state Sen. Linda Lopez, D-Albuquerque, sponsored a bill that would have thrown back the curtain. It died in committee.

FOG Executive Director Melanie Majors shared Yohalem’s concerns about the Supreme Court’s inaction on SFR’s case.

“We are disappointed in the Supreme Court’s decision, which allows the Court of Appeals’ restrictive reading of the ‘matters of opinion’ exception to remain in place,” Majors says. “FOG believes that the [Supreme] Court chose to take a very straightforward approach in which it deferred to those prior decisions with virtually no substantive discussion of the issues.”

After last month’s order from the state Supreme Court, it’s back to the drawing board.

“We will now need to assess whether to bring another case to rectify this major obstacle to transparency and hope the court will hear that one, or seek legislative reform,” Yohalem says.

Editor’s Note: This story has been updated to include a comment from the New Mexico Foundation for Open Government.