We’re all for eliminating qualified immunity . . . for records custodians and the politicians and lawyers who back them up and continue to give them bad advice.
There is no law that protects them. However, by not having a law that makes them personally responsible for their decisions or giving them a “Get out of jail free” card because they listened to a crooked politician or an over zealous lawyer, they don’t have to answer for their bad decisions.
In the Open Meetings Act at least there is a clause where elected officials can personally be assessed a fine of up to $500 for violating the Act. The Inspection of Public Records Act does not hold public officials, nor employees responsible for bad behavior. De facto, it holds taxpayers responsible.
In most cases when a citizen or media outlet asks for public records, a system of invisible check marks takes place. Instead of releasing the documents, as per state statute, the records custodian must get the blessing of a county commissioner or city official, a superintendent or principal.
Often when public records are denied or redacted to a state of being useless, an elected official and/or lawyer has instructed the records custodian to illegally withhold the document(s). After arguments and lawyers are done going back and forth, it comes down to a lawsuit.
The citizen or media company bears the brunt of prosecution. Taxpayers fund the losing fight for ill-trained or an illegally operating public entity.
Most of the time it’s politicians stopping the flow of public information. In the case of law enforcement, it’s higher ranking cops and appointed officials. The lack of public records training trickles down to lower ranks, evidenced by those who create the reports hesitating, or refusing to release public documents to records custodians.
Training would ease some of the issues but politicians always have their eye (more likely both eyes) on re-election and don’t want “bad” news to get out. An informed electorate works against most incumbents.
Lawyers almost always fall on the side of caution and know the long legal fight ahead will dissuade most document requesters. Most records denials are met with apathy and the requester moves on.
In the case of Jemez Mountains Electric Cooperative, it’s clear by its own by-laws, policies and procedures established by decades of corrupt washed-up politicians who have cycled through that political pasture that members have a right to many documents created by the powers that be. It is a long way from reading a policy, which states members may inspect a document, and that member actually laying eyes on it.
Our current lawsuit against the Co-op reveals a strange process for a document request. It moves from an executive secretary to a general manager, who’s not allowed to make a decision on whether to honor the Co-op’s own procedures. The request then advances to a lawyer and/or the executive committee. That committee, composed of the Board of Trustees majority, sat on our requests for months, ignoring our repeated requests for action.
A District judge will decide Friday whether the Co-op must abide by our Writ of Mandamus. Like most cases, this one will come down to money; money for inflated and exhorbitant copy costs, money for lawyers on both sides and money for court costs.
And it all could have been avoided if the person/people responsible for responding properly to records requests had done that job correctly originally.
In Jemez’s case, no one will be held responsible. In most public records cases the same is true. Almost always there’s a sour grapes song in someone’s office. Lyrics are to the effect of “We were robbed,” “The judge was wrong,” “We shouldn’t have settled.”
When individuals are held responsible, records will flow more freely, excuses will become rare and we’ll all be better-informed for it.