records law 201. get to know documents read the law train your custodians & officials

NEW MEXICO FOUNDATION FOR OPEN GOVERNMENT

Records Law 201

ADVANCED IPRA MASTERY

Get to Know Documents Read the Law Train your Custodians & Officials

GETTING TO KNOW DOCUMENTS


Treat documents as an important source



Learn their names



Learn their names Learn what they do

How and where are records generated? What information do they contain? Who receives, reviews and approves them? Who gets copies?



Learn their names Learn what they do

How and where are records generated? What information do they contain? Who receives, reviews and approves them? Who gets copies?

Visit them frequently

THE LAW

If you read the law, you’ll become the expert.

THE LAW: WHAT’S A RECORD?

Documents, letters, books, maps, tapes, photographs, recordings and other materials regardless of physical form or characteristics

Anything used, created, received, maintained or held by or on behalf of any public body and relating to public business.

Hint: (It’s very broad. Use every word!)

THE LAW: HOW TO ASK

Submit a request in writing Submit it to the records custodian Provide your name, address and phone

number Media: include your organization’s name

Identify the records with “reasonable particularity”

TIPS FOR ASKING

Ask “to inspect” Ask for records, not information Cite the law, and remind the custodian

of deadlines & legal remedies available Include fee cap

TIP! The Student Press Law Center’s FOIA Letter Generator has been shown to be more effective than a friendly letter.

THE LAW: DEADLINES

Immediately Provide records if practicable

3 business days Explain when records will be available OR Explain when agency will respond

15 calendar days Provide records OR Notify requestor that request is broad or

burdensome

THE LAW: COPIES

No charge to inspect Maximum $1 per page, 11x17 or smaller Charge must reflect actual cost of copying

Staff time to copy Paper Toner

TIP! Bring scanner or digital camera

THE LAW: DENIALS

14-2-11(B) The custodian shall provide the requester with a written explanation of the denial. The denial shall: Describe the records sought Set forth the names and titles or positions

of each person responsible for the denial; and

Be delivered or mailed … within fifteen days after the request for inspection was received.

TIPS FOR DENIALS

Always get chapter & verse!

TIPS FOR DENIALS

Read the exception they cite: 11 IPRA Exceptions

THE LAW: EXCEPTIONS

14-2-1.A(3) Letters or memorandums which are matters of opinion in personnel files or students’ cumulative files.

THE LAW: EXCEPTIONS

14-2-1.A(3) Letters or memorandums which are matters of opinion in personnel files or students’ cumulative files.

Note: does not say “personnel matters.”

THE LAW: EXCEPTIONS

14-2-1.A(4) Law enforcement records that reveal confidential sources, methods, information or individuals accused but not charged with a crime.

THE LAW: EXCEPTIONS

14-2-1.A(4) Law enforcement records that reveal confidential sources, methods, information or individuals accused but not charged with a crime.

Note: does not say “ongoing investigation”

TIPS FOR DENIALS

Read the exception they cite: IPRA Exception 12: “as otherwise provided

by law.” Statutes (NMSA) Administrative Code (NMAC) Rules of Evidence Retention Schedules (NMAC Title 1) Case Law

THE LAW: EXCEPTIONS

Public Records Act 14-3-15.1 C. The state agency that has inserted data in a

database may authorize a copy to be made of a computer tape or other medium containing a computerized database of a public record for any person if the person agrees:

(5) to pay a royalty or other consideration to the state as may be agreed upon by the state agency that created the database.

F. If information contained in a database is searched, manipulated or retrieved or a copy of the database is made for any private or nonpublic use, a fee shall be charged by the state agency permitting access or use of the database.

THE LAW: EXCEPTIONS

New Mexico Administrative Codehttp://www.nmcpr.state.nm.us/nmac/

http://www.nmcpr.state.nm.us/nmac/

THE LAW: EXCEPTIONS Lawyer-Client Privilege: Article 5, 11-503 in Rules of

Evidence (Contents of Judicial Volumes)

TIPS FOR DENIALS

Does the exception seem valid? If so, remind them of the obligation to

separate exempt information from non-exempt information. 14-2-9A.

Dealing with a lawyer? Ask for a “privilege log.” This is a list of which documents were withheld

and which privilege applies. Useful in deciding whether to challenge the

denial.

DEALING WITH DENIALS: OVERVIEW

Ask for the denial in writing Explanation of the denial Name and title of person responsible for denial

Consult IPRA compliance guide & the law Is there an exception? Does it apply here?

Respond in writing Dispute any invalid arguments

Go up the chain Forward to attorney, department head, manager,

governing body

WHEN ALL ELSE FAILS

Contact the Foundation for Open Government 505-764-3750 in Albuquerque 888-843-9121 statewide [email protected]

Send a complaint to the AG’s Civil Division Include specifics regarding the allegation,

description of the public body, copy of the written request and other supporting documents

(505) 827-6000

mailto:[email protected]

ENFORCEMENT

Action can be brought by: Attorney general District attorney Requestor

No need to exhaust administrative remedies

TRAINING THE GOVERNMENT

Enforce IPRA deadlines! Your actions show how important deadlines

are



are Insist on your rights



are Insist on your rights Communicate, and be willing to

negotiate on process Identify which records you want first Offer to review records in batches Provide more information if necessary





Put pressure on the right people





Put pressure on the right people Persist, persist, persist

QUESTIONS?

New Mexico Foundation for Open Government

www.nmfog.org(505) 764-3750(888) [email protected]

http://www.nmfog.org/