— NM Cops and Courts Beat Guide

The 2007 settlement agreement

The Rio Grande SUN, ABQ JournalNM FOG and a few others all sued State Police in 2005. This lawsuit resulted in the 2007 settlement agreement.

Although you should certainly invoke the settlement agreement and specific paragraphs of it at every turn, there is one thing you need to be aware of: It is highly likely that DPS will claim that it is not bound by the settlement agreement because the Susana Martinez administration is not the one that entered into it.

If DPS invokes that theory, there are two options: either sue them (and gets attorney’s fees) or complain to the AG.

When invoking the settlement agreement, it helps to realize that the paragraphs are numbered.

Below each pertinent paragraph is summarized.

Paragraph 4: Incident reports are original records of entry.

DPS will not “deviate” from its current (as of the settlement agreement) practices when it comes to incident reports.

Note: This is especially important because many State Police officers are reporting that they are being told to move the narratives, normally in incident reports, to supplemental reports to shield them from public inspection.

Paragraph 5: Dispatch logs are also original records of entry

Parapgraph 6: Original records of entry must be produced on or before IPRA deadlines.

Paragraph 7: If DPS makes any redactions, a letter will be sent, signed by the records custodian, that “(details) the specific and non-speculative reasons why DPS believes the release of the information requested is exempt from disclosure under the lPRA and/or ARIA.”

The letter will “describe in reasonable detail the factual basis for any claim of exemption under the IPRA or the ARIA.”

If DPS invokes the Law Enforcement Exemption, “DPS shall not withhold any information unless it can show that that release of the records poses demonstrable and serious harm to an existing or contemplated criminal prosecution or investigation.”

In addition, DPS must “also provide the specific factual basis for this showing in its written response.”

Finally, DPS can only withhold entire records only if “no part of the record may be produced without disclosing
information protected under the lPRA or the ARIA.”

Paragraph 8: Just because DPS has 15 days does not mean they can wait 15 days if the records are ready before then.

Paragraph 9: All the documentation required to be produced in Paragraph 7, and any supporting documentation, must be held for 3 years after the request is responded to.

Paragraph 10: If DPS uses the law enforcement exemption, it must meet all the requirements in Paragraph 7 and the information “cannot be generally known.”

Paragraph 11: DPS can only use the persons accused but not charged with a crime exception only if:

a. The information actually reveals a person accused but not charged.

b. The identity of the person is not generally known.

c. The requirements in Paragraph 7 are met.

d. If the identity of the person were released it would “pose demonstrable and serious harm to an existing or contemplated criminal prosecution or investigation, such as tipping off a potential suspect, facilitating the destruction of evidence, or allowing a suspect to flee the jurisdiction”

e. AND, the person named has not already been named in an original record of entry.

Paragraph 12: DPS must, every June and December, review the logs (mandated in Paragraph 17) for redactions made in material referenced in paragraphs 10 and 11 and “release the entire record for which the exemption is claimed as soon as is practicable if the source(s), method(s), or information no longer qualifies under Paragraphs 10 and 11 as information that DPS can withhold.”

Paragraph 13: DPS may not redact information, under the law enforcement exemption, under the theory that it reveals sickness, disability, sick leave or other medical conditions.

Paragraph 14: DPS may not deny a request on the grounds that it production would either violate state or federal telecommunications laws or that it would violate an individual’s privacy.

Paragraph 15: DPS may not deny requests for original records of entry if they are “not complete yet.”

Paragraph 16: DPS may not use executive priviellege to deny requests.

Paragraph 17: As referenced in Paragraph 12, DPS must keep a log of all IPRA requests, including dates, names, and the persons consulted or responsible for denials or redactions.

Paragraph 18: The records custodian must review the IPRA log monthly to make sure that DPS is: responding to requests in a timely fashion, has used a proper basis for redactions, responses are consistent with the settlement agreement and that the log complies with the requirements of the settlement agreement.

Paragraph 19: The log in Paragraph 17 must be inspectable.

Paragraph 20: DPS must adopt policies and procedures to ensure compliance with the settlement agreement. Those policies include:

a. “A policy requiring DPS’s custodian of records to review at least yearly the policies and procedures of DPS and the training provided to DPS records custodian personnel to ensure that all DPS employees delegated the discretion by DPS to handle IPRA requests have been trained in the requirements of this Settlement Agreement, the IPRA, and the ARIA.”

b. “A policy requiring DPS to inform its cabinet secretary, the Chief of the New Mexico State Police, all division directors and department heads, and all other supervisory personnel of this Settlement Agreement and DPS’s obligations under it.”

c. “A policy ensuring that all DPS district personnel and state police officers are trained in the policies and procedures adopted under and the requirements of this Settlement Agreement”

Paragraph 21: DPS had to pay $125,000 to settle the lawsuit.

Paragraph 22: If plaintiffs have to sue to get enforcement of the settlement agreement, they get attorney’s fees.

Paragraph 23: If someone sues, a judge has authority to issue orders based on the settlement agreement.

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