Record Wait Time

The latest lawsuit filed against the city over alleged violations of the state public records law highlights Santa Fe’s ongoing difficulty in transparency compliance.

Sidney Heilbraun has been waiting months for records about his own arrest.

Heilbraun claims in his suit, filed in District Court on May 26, that the city violated the state Inspection of Public Records Act (IPRA) after it blew past a statutory 15-day deadline to respond to his request for records generated when police arrested him on suspicion of impaired driving.

Taylor Smith, Heilbraun’s attorney, says his client was “unlawfully detained” and initially sought to sue the city for violating his rights. Smith tells SFR the city met the request for the details of his client’s arrest with silence until nearly a month after the initial ask. He still does not have all the records.

“Attorneys like myself, we like to do a little bit of due diligence. We don’t just like to throw out lawsuits willy nilly,” Smith says. “This delay just hangs up that process, and my client being vindicated for being unlawfully detained and arrested and charged.”

Heilbraun told police at a DWI checkpoint near Cerrillos and Cristo’s roads, just before his March 5 arrest, that he drank alcohol earlier that night, according to an initial report, the only document Smith has received so far. According to the police report, Heilbraun was arrested because of his field sobriety test performance and because he smelled of alcohol and had watery, blood-shot eyes. He submitted to two breath tests later at the police department that both showed no evidence of alcohol. Heilbraun was allowed to drive himself home.

“Mr. Heilbraun was released due to the fact that he blew 0.00 on both samples,” the report reads.

Heilbraun received a summons days later to appear at Santa Fe Municipal Court for a DWI charge, but Smith says the city prosecutor’s office quickly moved to drop the case. City Prosecutor Kyle Hibner did not respond to a request for an explanation, but the motion to dismiss cites a lack of evidence.

On March 27, Smith submitted a broad request for reports, videos and dispatch logs related to his client’s arrest, which kicked off the 15-day window for police to either respond or supply records. According to a screenshot of his request provided to SFR, on April 18 (about a week past the deadline), Smith notified the records custodian that the city had violated state law. The city waited to respond until April 25, almost a month after the initial request.

“The Records Custodian has determined your request is excessively burdensome or broad and we need additional time to respond, until 5-26-23,” the reply reads. “Some responsive material has been released to you today, 4-25-23. Your patience is greatly appreciated as we continue gathering and reviewing material that may be responsive to your request.”

Then, on May 25, the city said it would take even longer for the records—June 27, to be exact.

“We’ve been waiting since late March to get these records. And we won’t even have them,” Smith tells SFR. “So we’re knocking on the door of July.”

Heilbraun’s suit is just the latest instance of long waits leading to litigation.

In April, the city agreed to pay former city Councilor Steven Farber $50,000 in a settlement over an IPRA violation. At least two other lawsuits alleging the city has violated IPRA are pending: Louis Carlos, a former Santa Fe Police officer turned private investigator and now City Council candidate, seeks police records in five different cases and filed the court action in April; and Santa Fe resident Jared O’Shell filed a lawsuit in May seeking documents about contracts between the city and Homewise.

Tom Grover, an attorney and former police officer, represented former Santa Fe Police officer Michele Williams in a whistleblower suit and a subsequent IPRA suit, the latter resulted in an August 2022 order that the city pay Williams more than $35,000 in attorney’s fees and court costs. Williams’ whistleblower case was dismissed in April, stipulated by both sides.

Grover, also representing Carlos in his IPRA case, chalks up the delays to administrative ineptitude.

“Hot button items, like videos, or non-traditional records, like background investigations or Intoxilyzer reports, definitely are getting, I think, at best, sort of bureaucratically delayed by their lack of taking the seriousness of IPRA, and really embedding it into their processes,” Grover says.

City Attorney Erin McSherry did not comment on Heilbraun’s case, noting the city has not been served, but she laid out some of what has contributed to records request delays in an email to SFR.

“Most recently,” she writes, the city received “over 8,000 requests in one calendar year” and responded by expanding the city’s IPRA team from two to three by adding an “IPRA Manager.”

One of those employees, former police spokesman and later IPRA Specialist Greg Gurule, recently left to take a job with the state Department of Cultural Affairs, though she says the city is on track to fill that position soon.

“Some of our other current challenges are the number of hours of police dash cam and body cam video that must be reviewed for potential redactions (the team estimates we are currently reviewing around 30 hours a week) and the thousands of emails that are often potentially responsive to individual requests and require review for non-responsive and/or protected material,” McSherry writes.

But Greg Williams, a member of the board of directors of the New Mexico Foundation for Open Government, says IPRA, like all state laws, doesn’t make compliance exceptions for a lack of staff.

“A public entity can’t get away with non-compliance with the law just by asserting that they don’t have enough people to do the job,” he says. “If the city of Santa Fe can’t provide access to records within a reasonable time because they don’t have enough personnel to deal with requests, then the solution is to hire more people and to increase their budget for public records.”