Billy the Kid and New Mexico Open Records Law

Although he’s been dead for more than 130 years, Billy the Kid continues to vex and frustrate the Lincoln County Sheriff’s Department.

The New Mexico Inspection of Public Records Act (IPRA):

Billy, or at least his DNA, has been at the center of an ongoing open records case involving the Lincoln County Sheriff’s Department since April 2007, and recently described in an Albuquerque Journal article. The two Plaintiffs in the Case, author Dr. Gale Cooper and newspaper the De Baca County News, have been seeking records related to a Lincoln County Sheriff’s Department investigation into the death of Billy the Kid, Investigation # 2003 – 274, which began in 2003. Albuquerque Business Law became involved in the case in the fall of 2011 and currently represents the De Baca County News.

The Inspection of Public Records Act (IPRA):

All 50 states and the District of Columbia have some form of freedom of information legislation that governs the right to review documents at the state and local level. New Mexico’s Inspection of Public Records Act (IPRA), recognizes that “every person has a right to inspect public records” of the state with limited exceptions (such as mental exams, on-going criminal examinations, and trades secrets). As the New Mexico Court of Appeals has said, “a citizen’s right to know is the rule and secrecy is the exception.” IPRA describes the purpose of the Act as follows:

Recognizing that a representative government is dependent upon an informed electorate, the intent of the legislature in enacting the Inspection of Public Records Act is to ensure, and it is declared to be the public policy of this state, that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of public officers and employees. It is the further intent of the legislature, and it is declared to be the public policy of this state, that to provide persons with such information is an essential function of a representative government and an integral part of the routine duties of public officers and employees.

IPRA requires state and local entities to designate custodians of records, which the Act defines as “any person responsible for the maintenance, care or keeping of a public body’s public records, regardless of whether the records are in that person’s actual physical custody and control.”

Public records include: “all documents, papers, letters, books, maps, tapes, photographs, recordings and other materials, regardless of physical form or characteristics, that are used, created, received, maintained or held by or on behalf of any public body and relate to public business, whether or not the records are required by law to be created or maintained.”

When a person (which includes organizations, businesses or other entities) requests to inspect public records, under IPRA the records custodian is required to allow inspection “immediately or as soon as is practicable under the circumstances, but not later than fifteen days after receiving a written request. If the inspection is not permitted within three business days, the custodian shall explain in writing when the records will be available for inspection or when the public body will respond to the request.”

When a records custodian fails to comply with his or her obligations, the “person requesting the public records may pursue the remedies provided in the Inspection of Public Records Act.” The remedies available against records custodians who fail to comply with their IPRA duties include money damages up to $100 per day of non-compliance. Enforcement action, in the form of civil litigation, may be brought either by the attorney general or the person whose written request has been denied. IPRA is clear that a court must “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”

Billy the Kid: Cooper v. Virden

The case Cooper v. Virden, No. D-1329-CV-2007-01364, was brought by the Plaintiffs nearly five years ago pursuant to the New Mexico Inspection of Public Records Act, following a request for documents related to Lincoln County Sheriff’s Department Murder Case # 2003-274, an investigation into the death of Billy the Kid. Defendants in the case are current or former Sheriffs or Sheriff’s Deputies involved in the Lincoln County Sheriff’s Department investigation. The investigation was described as a forensic DNA investigation which proposed to prove by DNA from various exhumations that Pat Garrett’s murder victim was not Billy the Kid; and that Billy the Kid had survived into the 1900’s as old-timer claimant John Miller or others, whose DNA from their own exhumations, if shown to match Billy the Kid’s, would prove that Billy had not been killed by Garrett on July 14, 1881.

As part of the investigation, forensic sample recovery was performed by Dr. Henry Lee, of “O.J. Simpson trial” fame in 2004, on an old carpenter’s bench which was alleged to have the blood of Billy the Kid on it, as well as on floorboards in the old Lincoln County Court House. While attempted exhumations of Billy the Kid and his mother were thwarted in New Mexico, exhumations of possible Billy the Kid “pretenders” were conducted in Arizona in 2005, which resulted in additional forensic samples.

These and other samples were sent to Orchid Cellmark Laboratory in Dallas, Texas for extraction and analysis of alleged DNA of Billy the Kid. It was records pertaining to the alleged Billy the Kid DNA and subsequent testing and results which were sought by Plaintiffs in their IPRA request.

Following a hearing on the Plaintiff’s Motion for Summary Judgment in the case, on March 12, 2010, the District Court ordered the Defendants to turn over to Plaintiffs all information which had been collected as a result of the investigation. The Court found that the defendant deputies were employees or agents of the Defendant Lincoln County Sheriff; the defendant Lincoln County Sheriff had opened and continued the investigation at issue; and that all evidence resulting from the investigation was public record, and specifically those records that were sent to Orchid Cellmark Lab.

Despite the order to produce the requested documents, the Lincoln County Sheriff’s Department failed to produce the majority of the documents requested by the Plaintiffs. As a result, an evidentiary hearing was held in January 2011. As a result of that hearing, the Court ordered the defendants to request and authorize Orchid Cellmark Lab to provide its entire file related to the investigation to the Sheriff, which was then to be turned over to the Plaintiffs.

Again despite the clear orders of the Court, the documents were still not produced. And another year went by.

When it became involved in the case, Albuquerque Business Law aggressively pursued the records at issue in a relentless campaign to uphold the purpose and principals of IPRA and get the documents sought by our client. Following years of excuses by the defendants, including questioning whether DNA documents even existed, Albuquerque Business Law recently issued a subpoena on March 20, 2012 to the parent company of Orchid Cellmark Lab, Laboratory Corporation of America. On April 20, 2012, one hundred and thirty-three pages of documents related to the Billy the Kid investigation were produced.

These documents reveal that the records sought not only exist, but that they could have been easily produced long ago. The documents clearly show that DNA related records sought by the Plaintiff were part the Lincoln County Sheriff’s official investigation. The records also reveal curious and intriguing gaps that we are currently following up on.

Prior attorneys in the case have already been awarded over $72,000 in fees and potential damages, at $100 per day, are fast approaching $200,000. Albuquerque Business Law will continue to aggressively assist our client in fulfilling the purposes and intent of IPRA.