The Rio Grande SUN is pursuing legal action against two public bodies in Rio Arriba County for withholding records in violation of the state Inspection of Public Records Act.
The complaints in each case seek the release of the contested records to the public.
Matthew Hoyt, of Albuquerque law firm Peifer, Hanson and Mullins, filed one complaint Oct. 15 in state District Court against the Jemez Mountain School District for failing to properly respond to a request to inspect checks made out to former business manager Kathy Borrego, who is under investigation for allegedly stealing over $3 million in District funds.
A SUN reporter requested July 2 to inspect “check payments to Kathy Borrego 1999-2009,” according to the complaint. The District’s attorney C. Emery Cuddy, of the law firm Cuddy and McCarthy, requested more time to complete the request, before denying it July 15 on the grounds that “the checks are evidence in an ongoing criminal investigation,” the complaint states.
That exception is not allowed under state law, the complaint argues.
The complaint also refutes a subsequent denial of the same records, on the grounds that the checks are law enforcement records. Law enforcement records can only be exempted from inspection if they “reveal confidential sources, methods, information or individuals accused but not charged with a crime,” the complaint cites from state law.
The state auditor released a report Aug. 13 accusing Borrego of embezzling over $3.3 million from school district coffers, saying that 535 checks had been removed from the District’s stock of blank checks and made out to Borrego over a period of seven years.
The SUN reporter made a subsequent request Aug. 26 to inspect vouchers for payments made to the Abiquiú Land Grant, which was named in the auditor’s report, the complaint states. The District’s lawyers sent a letter requesting more time to respond but sent no further written correspondence to deny the request in violation of the Act which requires public bodies to either fulfill a request or deny a request by giving a written explanation citing one or more exemptions in the Act, the complaint states.
Jemez Mountain Superintendent Adan Delgado declined to comment on the suit, and Cuddy did not return a message.
A second complaint, which Hoyt said should be filed later this week, accuses the city of Española of withholding budget documents a SUN reporter requested in June.
Reporter Jose de Wit requested June 11 to inspect correspondence between Acting City Manager Veronica Albin, Josie Lujan, former accountant Andrew Perkins and Mayor Joseph Maestas related to the budget for fiscal year 2010, according to the complaint. Albin responded by asking for more time to fulfill the request, then provided some documents June 17 — excluding a document consisting of budget recommendations from city department heads that, historically, the city has treated as a public record, the complaint states.
Albin claimed state law protected the document in question, later adding it was part of the executive thought process of city officials and “affected employees who are members of the city’s collective bargaining unit,” the complaint states.
“We are not turning (the document) over for any reason other than it’s not public,” Albin said, referring subsequent questions to her correspondence cited in the complaint.
In addition to seeking the records, in both cases the SUN seeks reimbursement for court costs and attorneys’ fees, as well as monetary compensation in the form of a $100 fine against each defendant for every day since the original request lapsed as provided by law.
“These seem like pretty clear-cut violations of the Inspection of Public Records Act,” said Sarah Welsh, executive director of the state Foundation for Open Government and a former SUN assistant editor. “It’s unfortunate that the SUN has to go to these lengths to get public records, and it’s unfortunate that the city is choosing to spend time and money to fight for secrecy. ”
Welsh said these types of cases are important for maintaining an open democracy because regular citizens often cannot afford to pay a lawyer to sue public agencies over a denied request, so a rejected request usually dies there.
“Cases like this can establish a precedent and make sure public agencies think twice before withholding public records,” she said.