Open Government and Public Records Act
Open Government, the Freedom of Information Act and the New Mexico Inspection of Public Records Act.
The concept that citizens have a right to examine public records lies at the heart of open government.
This right, codified in the Freedom of Information Act and the New Mexico Inspection of Public Records Act allows citizens to keep a close eye on government affairs by giving them access to government records. This creates a transparent government, where every gear and lever of bureaucracy is under the scrutiny of concerned citizens. These watchdog citizens can take an active role in preventing corruption, governmental oversight, and unnecessary government secrecy.
A more transparent government is also a more participatory government: citizen involvement in governmental affairs promotes a more balanced governing body and allows for greater dialogue and exchange between government and its citizens.
In Cooper v. Virden, Albuquerque Business Law attorneys aggressively pursued the records at issue in a relentless campaign to uphold the purpose and principles of the New Mexico Inspection of Public Records Act and get the documents sought by our client.
The Freedom of Information Act
President Lyndon B. Johnson signed The Freedom of Information Act (FOIA) in 1966. The FOIA allows for the disclosure of government documents, letting citizens examine the workings of the executive branch. The FOIA creates the presumption that the public has an inherent right to government records. Before it was signed, a burden was placed on the petitioner to prove that they had a right to view the information they requested.
Under the FOIA the right of citizens to access government records is assumed and the burden is shifted onto the government, who can deny the request by demonstrating the information requested is of a sensitive nature that cannot be released to the public. This reversal, granting citizens the right to public records, was an important step forward in allowing citizens to participate in and keep an eye on their government.
While the FOIA does not guarantee that the information will be released, it does create a formal process for requesting the information, as well as outlining available legal recourse if the request is denied. If the request is denied FOIA requires that the government formally inform the citizen giving them the specific reason the request was denied. By codifying this process the FOIA creates a more transparent and accessible government.
The New Mexico Inspection of Public Records Act
After the FOIA was signed, each individual state adopted its own version. In New Mexico, that version is the New Mexico Inspection of Public Records Act (IPRA). The New Mexico Supreme Court stated that:
“writings coming into the hands of public officers in connection with their official functions should generally be accessible to members of the public so that there will be an opportunity to determine whether those who have been entrusted with the affairs of government are honestly, faithfully and competently performing their function as public servants.”
The New Mexico Inspection of Public Records Act fulfills this role by allowing citizens to obtain public records. The IPRA adopts the FOIA assumption that citizens have a right to access records stating “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 employers.” The IPRA outlines the duties of governmental custodians of information and provides detailed procedures for both requesting and reviewing public records.
FOIA and IPRA Requests – Attorney Fees for Non-Compliance
When requesting information under either the FOIA or the IPRA, each law has very specific requirements. It is important that you follow the requirements or the public agency is not required to comply, and there is no recourse under these laws if they fail to comply. The laws themselves are fairly straightforward and can be found online.
If, however, you do follow the legal requirements, and an agency fails to comply, you may be awarded a penalty payment for every day the agency withholds documents that were properly requested. This requires a lawsuit to be filed, and the laws provide for the payment of attorney fees. Many attorneys experienced in these laws, like Albuquerque Business Law, will handle these cases on a contingency, meaning we only get paid when and if an award of attorney fees is made.
However, while both the FOIA and the IPRA are intended to allow ordinary citizens to procure public records, professional assistance is often necessary to get the job done. The experienced attorneys at Albuquerque Business Law can help you navigate both FOIA and IPRA quickly and efficiently. As mentioned above, in valid, meritorious cases, we will not require you to pay attorney fees and will instead seek them from the public agency in question.
The attorneys at Albuquerque Business Law can save your request from being lost in a quagmire of red tape and can give you quick and efficient results by guiding your approach. For example, the IPRA requires that written requests contain “reasonable particularity,” meaning that the request must be specific enough to give the custodian a clear idea of the nature of the needed information. Without reasonable particularity the request can take significantly longer as it is kicked back and forth between various agencies.
The IPRA allows for a legal appeal if the request for public records are denied. Professional assistance will greatly increase your chances of successfully litigating these claims. The attorneys at Albuquerque Business Law will be able to lead you through the bureaucracy of both the FOIA and the IPRA and get you the information you need.