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EDITORIAL: Loopholes in IPRA law need to be addressed
Let’s start by addressing the elephant on the page.
Last week, we alluded to a complaint we made to the Attorney General’s office regarding concerns we have with delays in receiving records through the city of Rio Rancho’s Inspection of Public Records Act portal.
Unfortunately, the state Department of Justice did not find any violation of IPRA with our complaint. We’ll get into that in a little bit.
However, we would first like to clarify the timeline a bit. Our paper has a press deadline of 5 p.m. Tuesday each week. We distribute early Thursday morning. The Observer staff received notification of the finding Wednesday afternoon.
A Thursday post on the city’s social media sites implies our paper last week purposely left out those findings. On the contrary, the paper had already been printed and, upon receiving the finding and reviewing it, we added the following to the online version of the editorial: “Note: The Observer received word Wednesday afternoon, after this editorial went to press, the Department of Justice did not find violation of IPRA. However, it is the belief of the members of Observer staff that the frequent and ongoing delays are not within the spirit of the law.”
This is not the first time our publishing schedule has posed a problem for us, and it probably won’t be the last.
Last year, when the suspect for a murder in Corrales was on the run, we printed the story that police were still looking for him. He was arrested that Wednesday.
It’s a perennial problem for us at election time. Polls close after our press time each cycle, so we have to make a note to our readers to look for election results online. We managed to squeeze in a Wednesday press time for November’s general election, but it took a lot of coordination among several departments and organizations.
It hampers us in sports, where the latest results of our high school teams don’t get in.
The approximately 36-hour gap between our print and delivery time is not ideal, but we work with it the best we can.
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Now, let’s shift to the DOJ’s finding itself:
“In reviewing the City’s responses, the City responded to each request within three business days with some of the requested records, as well as a determination that more time would be needed due to the broad and burdensome request. The City then continued to disclose more records on an ongoing basis.
“Based on the City’s responses, our office does not find any violation of the IPRA. The fact that other municipalities may proactively post arrest information or respond sooner does not have an impact on whether the City is complying with the IPRA statute as it is written.”
Those last words are, to our minds, important: “as it is written.”
This begs the question of whether the IPRA laws in New Mexico need to be adjusted, as they apparently leave several loopholes.
First off, how long does a government entity have to provide requested records as long as a trail of bread crumbs is provided? Obviously, months. What about a year? Two? More? How does this serve the public’s interest?
Let’s also look at a caveat carved out in IPRA law: the “broad and burdensome” clause. As we noted last week, it is a phrase that gets used frequently in delaying records. But what constitutes a request being broad and burdensome? One would assume that weekly requests for arrest reports would be routine and easy to provide. We also think a government entity, if it’s going to use this carve-out, should have to define how or why a request falls into the “broad and burdensome” category when they use it. As it stands, we find this exception to the law to be overly broad itself.
“At the very least (the DOJ) could have asked the city to explain why (the city of Rio Rancho) treats each and every one of the Observer’s requests as ‘excessively broad and burdensome,’” said Amanda Lavin, attorney for the Foundation for Open Government. “The AG’s own guide specifically states that ‘public bodies should be prepared to articulate why a request is excessively burdensome, in the event the decision is challenged ...’
“To me, it seems pretty obvious that (the Observer’s) weekly requests for arrest reports are not excessively broad and burdensome. The NMDOJ could have used this as an opportunity to remind the city of their obligations under IPRA to provide the greatest amount of information possible and prioritize timely access to public records,” she added. “They might be technically in compliance since IPRA provides no guidance on what is an excessively broad and burdensome request, and what constitutes a reasonable amount of time to respond to such a request, but their knee-jerk reaction to treat every single request as broad and burdensome — even the most easily fulfilled requests — to me, simply cannot be justified. As the chief compliance officer of New Mexico’s transparency laws, the NMDOJ should be looking at this situation with more concern.”
We encountered another loophole concern earlier this year when we requested the final report for January’s officer-involved shooting in addition to requesting the initial report. The city clerk informed us that the IPRA law does not allow for the requesting of records that don’t yet exist. However, that begged the question for us, as an internal discussion: How is an interested party supposed to know when a final report is done in order to request it?
IPRA issues also have been of interest in the New Mexico Legislature this year. Just a few weeks ago, we published a report that a bill proposed by Rep. Kathleen Cates had been pulled after outcry from public records groups.
That bill, Lavin argued at that time, could severely impact the ability of journalists do their job and opened up the broad and burdensome clause even more.
While this year’s session is winding down, we hope next year, legislators take another look at New Mexico IPRA laws and instead adjust them to serve the taxpaying public, not the government entities they pay for.
