by Mark Wilson

The New Mexico Court of Appeals held that the state was required to pay statutory damages of $100 per day for a four-year non-disclosure of requested public records.

Longtime animal welfare activist Marcy Britton learned of raids by the newly formed New Mexico Attorney General’s Animal Cruelty Task Force (AGACT). She was concerned that AGACT was “killing animals unnecessarily, inhumanely and unlawfully.” She also feared that Heather Ferguson, a private-citizen coordinator of AGACT, “was mishandling cruelty cases while exercising some sort of law enforcement authority derived from her status as ‘coordinator’ of the AGACT.”

Britton submitted a June 30, 2009, request to inspect public records related to AGACT between July 1, 2007 and June 30, 2009. When she did not receive any responsive records, Britton wrote to the Attorney General’s Office (AGO) on August 1, 2009, seeking immediate disclosure.

Although the AGO later provided some documents, Britton continued to dispute that it had fully complied with the state’s public records law.

During a separate public records request nearly two years later in January 2012, Britton discovered documents within the scope of her June 2009 request that had not been disclosed.

Britton then challenged the 2009 non-disclosure in state court.

On May 9, 2013, the AGO produced at least 350 emails that had not been previously disclosed in response to the June 30, 2009 request. Britton then sought attorney fees and costs under New Mexico Section 14-2-12(D) and statutory damages of up to $100 per day under Section 14-2-11. The district court awarded her reasonable attorney fees but denied statutory damages under Section 14-2-11.

The New Mexico Court of Appeals reversed, finding that “the undisputed facts establish that the AGO failed to permit inspection of approximately 350 records that were responsive to Plaintiffs request and for which no claim of exemption was ever asserted or written explanation of denial issued.” That non-disclosure “properly brings Plaintiffs action within the purview of Section 14-2-11” and “the district court erred by summarily concluding that Plaintiff is foreclosed categorically from recovering damages under Section 14-2-11.” The court remanded, instructing the district court to assess statutory damages against the AGO in an amount appropriate in light of the nature of the violation and the goal of the public records laws. If “the public body’s failure was ‘unreasonable,’ the district court must award statutory damages.” See: Britton v. New Mexico Attorney General, _ NMCA _, _ P3d _ (NM CA 2018).

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