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County Must Disclose Detention Center Settlement to Newspaper

The New Mexico State Court of Appeals has ruled that Dona Ana County must disclose to the Las Cruces Sun-News records relating to a civil suit settlement between the County and female jail detainees who were sexually abused by jail guards. Sun-News attorney fees were also awarded.

In 1999 a settlement was reached between Dona Ana County and Detention Center prisoner Claudia Moreno after Moreno brought allegations of criminal sexual abuse against two former jail guards. The Las Cruces Sun-News made a written request under the state Inspection of Public Records Act (IPRA) for a copy of the settlement agreement and any documents reflecting attorney fees. The Sun-News later added to the request all documents related to settlements on behalf of the Detention Center.

The County admitted they were required to release the documents but claimed a temporary exemption from disclosure under the state Risk Management Division (RMD) confidentially provisions. The County also claimed countervailing public interest exceptions including protection of public funds and having future criminal proceedings against the guards free from undue prejudice. Besides the Moreno claim, the County had settled two other claims and had three more pending, a number that could grow, plus criminal charges were pending against six guards.

The County filed a Petition for Declaratory Decree to justify a public policy exception to the IPRA and later sought summary judgment and a protective order to keep the proceedings confidential and the record sealed. The Sun-News filed a petition seeking disclosure under the IPRA. Summary judgment was denied and a protective order never entered.

On February 4, 2003 an Amended Final Order was issued ordering the County to produce the Moreno settlement and any other related documents in related cases that the Sun-News might request.

The standard course of action for the County should have been to present its evidence in camera rather than seek a protective order. Without this order the County refused to disclose to the court details of the settlements. By circumventing the standard procedure established by the state supreme court the County "effectively obstructed full review by the district court and this Court" which was "at a loss as to why the County would not submit the records to the district court for confidential review." The Court held that an in camera review is imperative and the most efficient means of review. The County's basis for deviating was that they were only seeking an indefinite delay in producing the records, not a permanent denial.

Summary judgment was properly denied and dispositive of the issues. The district court's finding that "any countervailing public interest in the delay of the release of information ...[did] not outweigh the public interest in prompt disclosure" was affirmed. The Court held "that every citizen has a fundamental right to have access to public records" that is limited only by statutes to the contrary or countervailing public policy.

The Court rejected the RMD claim finding that it only applies to "records created or maintained by the [RMD]." Also rejected were claims that the state Tort Claims Act extended confidentiality protection of the RMD or that the state Open Meetings Act (OMA) applied. The OMA only protects attorney-client confidentiality by authorizing "closed session" meetings involving a public body. The Court held that settlement agreements between parties are outside the privilege and this claim was "utterly without merit."

The Court rejected the County's countervailing public policy claims of public interest in protecting public funds and public interest in obtaining a fair trial. The County's fear that costly phantom claims would arise was held "rank speculation." Naked speculation of prejudice preventing fair civil trials was also rejected. The County had no standing to assert fair trial issues for the guards in criminal proceedings.

Finding the IPRA controlling over the Declaratory Judgment Act, and fees under the IPRA mandatory, the Court affirmed the award of $3,353 in attorney fees for the Sun-News. See: Board of County Commissioners of Doha Ana County v. Las Cruces Sun-News, 76 P.3d 36 (NM App. 2003). g

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Related legal case

Bd of Co Comm'rs of Dona Ana Co v. Las Cruces News

[59] C. Countervailing Public Policies

[60] ¶27 The County raises two countervailing public policies: (1) the public interest in protecting public funds, and (2) the public interest in obtaining a fair trial. According to the County, disclosure of settlement records would diminish its ability to protect public funds by (1) creating an external incentive for others to assert claims and allege it had actual notice of such claims, (2) interfering with its ability to negotiate fair and reasonable settlements by causing claimants to look beyond the facts of underlying claims to other settlement awards, and (3) impeding the County's right to a fair trial because of pretrial publicity. The County also maintains that pretrial publicity of the information contained in the settlement documents would prejudice the criminal defendants' right to a fair trial. ¶28 The trial court ruled countervailing interests did not outweigh public access, and we agree.

[61] Public Interest in Protecting Public Funds

[62] ¶29 The interest in protecting public funds does not outweigh the public interest in accessing public records under the circumstances of this case. In essence, the County seeks to keep information from the public on the fear that the information could be used against it to engender phantom claims or to interfere in possible settlements. Nothing in the record indicates these fears are anything more than the rank speculation. Even if they were grounded in some fact, however, the County's position overlooks the core purposes of IPRA to provide access to public information and thereby encourage accountability in public officials and employees. "Public business is the public's business." Newsome, 90 N.M. at 795, 568 P.2d at 1241 (internal quotation marks and citation omitted). People have a right to know that the people they entrust "with the affairs of government are honestly, faithfully and competently performing their function as public servants." Id. (internal quotations and citation omitted). Further, IPRA does not limit how the information might be used.

[63] ¶30 The County's concerns are misplaced. "[W]hen a member of the public has been wronged by some action or inaction of a government agent, the government's proper goal coincides with that of the injured citizen in uncovering and correcting the wrong[,]" not the narrower interest in prevailing in a lawsuit. State ex rel. Children, Youth & Families Dep't v. George F., 1998-NMCA-119, ¶ 17 n.1, 125 N.M. 597, 964 P.2d 158 (internal quotation marks and citation omitted). Accordingly, we hold that the public interest in protecting public funds under the facts of this case does not outweigh the right to inspect public records.

[64] Public Interest in Obtaining a Fair Trial

[65] ¶31 There are three layers to the County's assertion that the right to a fair trial outweighs the right to access public records, they are: (1) the County will be prejudiced in the remaining civil cases, (2) the public has an interest in criminal trials free from undue prejudice, and (3) defendant's right to a fair trial.

[66] ¶32 Pretrial publicity does not automatically deprive a party of a fair trial; it does not establish actual prejudice or create a presumption of prejudice. State v. Lasner, 2000-NMSC-038, ¶ 26, 129 N.M. 806, 14 P.3d 1282; State v. Hernandez, 115 N.M. 6, 21, 846 P.2d 312, 327 (1993); see State v. House, 1999-NMSC-014, ¶ 51, 127 N.M. 151, 978 P.2d 967. Like any other party, the County as a party must show by clear and convincing evidence that there is a reasonable probability a fair and impartial trial cannot be had if the information is disclosed. See id. ¶¶ 41-44. The County failed to meet this burden in the civil cases. The record is devoid of any information regarding the nature, extent or timing of existing publicity, the nature of the community, or any other information that would assist in assessing the County's general claim of prejudice. The naked assertion that the fair trial rights of the County in related civil proceedings will be prejudiced is insufficient as a matter of law to establish prejudice to the public interest sufficient to delay disclosure. Newsome, 90 N.M. at 796, 798, 568 P.2d at 1242, 1244.

[67] ¶33 The right to a fair trial in criminal proceedings is a right that is conferred upon defendants under the Sixth and Fourteenth Amendments of the Federal Constitution and N.M. Const. art. II, § 7. Generally, this right is created for the benefit of, and is personal to, the defendant. In this case, it is the County, not defendants in the related criminal proceedings, which is asserting the right. To establish standing to assert an interest of a third-party,

[68] [t]he litigant must have suffered an `injury in fact,' thus giving him or her a `sufficiently concrete interest' in the outcome of the issue in dispute; the litigant must have a close relation to the third party; and there must exist some hindrance to the third party's ability to protect his or her own interests.

[69] New Mexico Right to Choose/NARAL v. Johnson, 1999-NMSC-005, ¶ 13, 126 N.M. 788, 975 P.2d 841 (emphasis added) (citation omitted). An injury in fact is "an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical." John Does I Through III, 1996-NMCA-094, ¶ 17 (internal quotations and citation omitted). The County presented no evidence that the harm to it or the individual defendants in the criminal proceedings is anything more than speculation. Absent a factual basis for the alleged injury, the asserted interests in a fair criminal trial are nothing more than "generalized statements . . . [that] are neither substantial nor persuasive." See State ex rel. N.M. Press Ass'n v. Kaufman, 98 N.M. 261, 267, 648 P.2d 300, 306 (1982) (good cause not established by generalized statement that publishing picture of defendant in court would prejudice his right to a fair trial).

[70] ¶34 Moreover, the County has not shown why the individual defendants could not protect their own interests, or even if they were ever made aware of the Petition filed by the County. Defendants could have asserted their right under Rule 1-024(A)(2) NMRA 2003, as well as through traditional safeguards that protect these interests, such as voir dire, motion for change of venue, or jury sequestration. There is no explanation provided why these alternatives were unavailable to defendants or otherwise inadequate. Accordingly, we find that the County lacked standing to assert a public interest in defendant's right to a fair trial.


[72] ¶35 The district court awarded the Newspaper attorney fees pursuant to Section 14-2-12(D) which provides: "[t]he court shall award damages, costs and reasonable attorneys' fees to any person whose written request has been denied and is successful in a court action to enforce the provisions of the Inspection of Public Records Act." The district court found the filing of the Petition for Declaratory Judgment was unreasonable and therefore constituted an unlawful denial under IPRA, and the Newspaper prevailed on its counterclaim. The County argues the Newspaper is not entitled to attorney fees because (1) it brought its action under the Declaratory Judgment Act, NMSA 1978, §§ 44-6-1 to - 15 (1975), which does not provide for attorney fees; (2) denial of fees is consistent with Section 14-2-9(B)(4) which prohibits the custodian of records from charging a fee for determining whether the material is subject to disclosure; (3) the request was equivalent to a finding that it was "excessively burdensome" given the lack of legal precedent, Section 14-2-10; and (4) the filing of the Petition was not a "denial" but merely a "delay" until all claims were resolved.

[73] ¶36 The IPRA is the controlling statute in this case, not the Declaratory Judgment Act. Although the County brought an action for declaratory judgment, the Newspaper filed a counterclaim under IPRA. The court found that the Newspaper prevailed under IPRA which provides for attorney fees. See Section 14-2-12(D).

[74] ¶37 Under IPRA's "enforcement" provision, an award of attorney fees is mandatory when (1) the request has been denied, and (2) the requester is successful in a court action to enforce the Act. The County seeks to avoid the mandatory language by arguing the Petition was not a "denial" but merely a reasonable "delay" under the circumstances. We disagree. Under the plain language of the "enforcement" provision there is no such distinction. It is clear the Legislature intended to enforce disclosure by imposing a cost-including attorney fees-for nondisclosure within the time frames set by IPRA.

[75] ¶38 Reading other provisions of IPRA, we find that "delay" is addressed only in Section 14-2-11(A), which provides that:

[76] A. Unless a written request has been determined to be excessively burdensome or broad, a written request for inspection of public records that has not been permitted within fifteen days of receipt by the office of the custodian may be deemed denied. The person requesting the public records may pursue the remedies provided in the [Act].

[77] And Section 14-2-10 which describes the procedure for excessively burdensome requests:

[78] 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. The custodian shall provide written notification to the requester within fifteen days of receipt of the request that additional time will be needed to respond to the written request. The requester may deem the request denied and may pursue the remedies available pursuant to the [Act] if the custodian does not permit the records to be inspected in a reasonable period of time."

[79] In other words, a "delay" is not deemed a denial if the materials are produced within fifteen days or "within a reasonable time" if the request is an excessive burden on the agency and notice to this effect is given the requester.

[80] ¶39 The record does not contain any indication that the County provided written notification to the Newspaper requesting additional time because the request was unreasonably burdensome or broad. And the County does not assert to us that it provided written notification requesting additional time.

[81] ¶40 The County does seem to argue, for the first time on appeal, that the filing of the Petition was akin to an excessive burden request, in light of the countervailing public interests and absence of any legal authority on the matter. The County did not make this argument to the district court, and we decline to address the issue in this posture. Woolwine v. Furr's, Inc., 106 N.M. 492, 496, 745 P.2d 717, 721 (Ct. App. 1987) (holding appellate court will not consider argument not presented to court below unless it is jurisdictional).


[83] ¶41 We affirm the district court's decision that the County's denial of the requested materials was unreasonable and a violation of IPRA. We, thus, also affirm the award of attorney fees.

[84] ¶42 IT IS SO ORDERED.



[87] JAMES J. WECHSLER, Chief Judge

[88] IRA ROBINSON, Judge