New Mexico Freedom of Information Act
What is the New Mexico Freedom of Information Act?
The Freedom of Information Act (FOIA) is a series of laws that grants a person the right to request and obtain records kept by public bodies. It requires government agencies to make all records in their custody available to the public on request, provided such information/documents are not protected from public disclosure by law. The FOIA primarily keeps the general public informed about the various activities of the government and makes the government accountable to its citizens.
The New Mexico Inspection of Public Records Act (IPRA) makes public records accessible, with few exceptions, to the general public in the state. It is also known as New Mexico's Sunshine Law. The state Attorney General is the chief enforcement officer of the IPRA, while district attorneys also assist in ensuring compliance by government agencies. Under the IPRA, it is not mandatory for anyone to state the purpose of requesting a public record. However, there is a limitation on using police reports obtained from a public record request; it is unlawful to solicit victims for services using such information.
All government departments and agencies created by law and funded with public funds in New Mexico are subject to the IPRA. While the New Mexico Legislature is subject to the IPRA, the 1978 New Mexico Statutes Annotated (NMSA), 2013 amendment, provides that legislators' emails are not public. Although the executive branch of the New Mexico government is subject to the IPRA, the state's Supreme Court recognizes a constitutionally-based executive privilege. However, only the governor enjoys such a privilege. Cabinet agencies overseen by the governor do not benefit from it. The NMSA and court rules recognize the right of access to court records. Specifically, the New Mexico State Court Rule 1-079(A) stipulates that court records are subject to public access unless exempt from disclosure or sealed by court order.
New Mexico established its first open records law in 1947, and there have been a few modifications since then. The 1947 law contained a few exceptions, limited access to the public, and did not define what made up a public record. Due to the various flaws, the New Mexico Supreme Court, in 1977, requested the state legislature to address the law's shortcomings. Consequently, in 1993, the New Mexico Legislature included a statutory right to access public records and created a private right of action. This comprehensive amendment of the IPRA allows prevailing persons to collect attorneys' fees, court costs, and damages. In 2011, the state legislature modified the IPRA to include a requirement for records custodians' responses to public record requests to be in the same medium in which requesters sent them.
What is Covered Under the New Mexico Freedom of Information Act?
All public records in New Mexico are subject to the Inspection of Public Records Act. Per Section 14-2-6 of the 1978 New Mexico Statutes Annotated (NMSA), public records are all documents used, created, maintained, received, or kept by or on behalf of a public body. They include papers, tapes, recordings, letters, maps, books, photographs, and other materials, regardless of physical form, provided they relate to public business. Computer data, email, and telephone call logs are available under the broad definition of public record specified in the NMSA and are covered by the IPRA.
What Records are Exempt from the Freedom of Information Act in New Mexico?
The 2011 amendments of the NMSA exempt the following records from public disclosure under the New Mexico Inspection of Public Records Act (IPRA):
- Attorney-client privileged information, trade secrets, and hospitals' strategic business plans
- Medical records relating to mental or physical examinations and medical treatment of individuals restricted to an institution
- Appraisal or opinion letters in students' cumulative files or personnel files
- Reference letters relating to licensing or employment
- Strategic response plans designed by or for New Mexico or any of the state's political subdivision, disclosure of which could leave the state vulnerable to terrorist attack or breach security procedures
- Law enforcement records that, if released, would disclose confidential information, methods, sources, or individuals accused but not charged with a crime. Such records include any evidence collected concerning any criminal investigation by law enforcement or in connection with prosecution by a prosecuting agency.
- Documents donated to a university, museum, or other public establishments in which the donor needs and reserves confidentiality for a period of years
- Any personal identifier information. Such information includes social security numbers and all but the last four digits of a driver's license number, a taxpayer identification number, and a financial account number. Also included in the category of personal identifier information is all but the year of an individual's birth date.
These exceptions are in place to protect the confidentiality of witnesses to certain crimes or victims and shield public records containing the identity of individuals. Typically, the presence of protected personal identifier information on any document does not exempt such a document from public disclosure or inspection. However, the IPRA requires that record custodians redact such information from records containing them before disclosure. This rule also applies to publicly accessible websites run by or managed on behalf of a government agency.
How Do I File a New Mexico Freedom of Information Act Request?
The first step to filing a New Mexico Inspection of Public Records Act (IPRA) request is for a person to identify which agency has custody of the sought record. The IPRA permits written and oral request submissions to record custodians. A custodian is not required to create a new public record or compile information from the agency's records if the agency does not have the requested record/document. Besides paper requests, a written request may be an electronic submission such as email or facsimile. A written request must contain the requester's name, phone number, and address. It must also include a detailed description of the record sought to enable the custodian to identify and locate it in record time.
If a requested public record contains exempt information, the IPRA permits a record custodian to redact such information and make the non-exempt part available to the requester. Once a requester determines the agency holding the sought record, they can appear at the agency's office in person and file their request orally or in writing (including mail and email). Some government agencies even provide online portals for IPRA requests. For instance, an individual who seeks a public record from the New Mexico Taxation and Revenue Department office can submit their request online. They can also file their request orally or in writing at/to:
Taxation and Revenue Department
Attn: Public Records Custodian/IPRA
P.O. Box 630
Santa Fe, NM 87504-0630
Similarly, any individual can request to inspect public records from the Office of the Attorney General by sending a written request to:
New Mexico Attorney General's Office
Attn: Records Custodian
P.O. Drawer 1508
Santa Fe, NM 87504-1508
Fax: (505) 717-3600
Every public agency in New Mexico has its contact information on its website, where members of the public can direct their IPRA requests. The government of New Mexico maintains a directory of all its agencies in one place.
What is the Cost of a Freedom of Information Act Request in New Mexico?
Requesting a public record under the New Mexico Inspection of Public Records Act (IPRA) comes at a cost. However, the fees charged by the various government agencies must be reasonable in line with the provisions of the Act. While the fees charged for copying public records vary by agencies, the IPRA stipulates that a custodian may not charge more than $1 per page for printed records that are 11"x17" or smaller. The Act, however, allows a custodian to charge an amount above $1 per page of printed documents wider than 11"x17". In such a situation, the amount charged must reflect the additional cost borne by the agency for reproducing such voluminous documents in print.
The copying fee for paper documents 11"x17" or smaller at the New Mexico Attorney General's Office is 10 cents per page, while larger documents cost 25 cents per page. The office charges $2.75 for audio tapes and $6.75 for video records. Similarly, the Taxation and Revenue Department charges 25 cents per page for printed documents 11"x17" or smaller. Each public agency provides the cost of obtaining public records under the IPRA on its website. A public body may also charge requesters the actual costs of transmitting copies of records sought by email and those downloaded to storage devices. Additionally, they may bill a requester for personnel time involved.
How Long Does it Take to Respond to a Freedom of Information Act Request in New Mexico?
Per Section 14-2-8 of the IPRA, a record custodian is required to make a requested record available no later than 15 days after receiving a written request. If making such a record available is not feasible within three working days, the custodian must notify the requester in writing, addressing when it will be available. The written notification must state when the agency will respond to the request if it cannot make the record available within this period. This process also applies to requests sent by email and facsimile.
According to Section 14-2-10 of the IPRA, a custodian may request a reasonable additional time to search a burdensome record. In such a circumstance, the custodian must notify the requester in writing within 15 days of receiving the request. If an IPRA request is denied, the custodian must provide the requester with a written, detailed explanation for denying it. Unless a record request has been established to be overly burdensome, it is deemed denied if the agency/custodian fails to respond within 15 days of receiving such a request. A person whose IPRA request is denied may challenge the denial by filing litigation against the public agency. If the court action is successful, the court will award the requester damages, costs, and reasonable attorney fees.