Although IPRA is normally for governmental organizations, it can also be applied to organizations that are doing the government entity’s work, or working on behalf of the government entity.
That comes from the definitions section of IPRA, 14-2-6 (G) quoted below, emphasis added:
“public records” means all documents, papers, letters, books, maps, tapes, photographs, recordings and other materials, regardless of physical form or characteristics, that are used, created, received, maintained or held by or on behalf of any public body and relate to public business, whether or not the records are required by law to be created or maintained.
The AG’s IPRA guide deals directly with this issue on pages 25 and 26, including a citation of Toomey v City of Truth or Consequences, mentioned below.
Example 37: A request for records pertaining to inmates housed at the county jail is made to the jail administrator. The jail administrator is employed by a private company that provides, manages and operates the county jail. The jail administrator refuses to provide the records on the basis that they are kept by the private company and therefore are not public records. The requester goes to district court for an injunction requiring the jail administrator to allow inspection of the records. The county jail is a public facility and the private jail operator is performing a governmental function that otherwise would be performed by the county. Thus, it is likely that a court reviewing the issue would rule that the inmate records are public records because they are created, used and maintained on behalf of a public body, i.e., the county, and relate to public business. See Toomey v. City of Truth or Consequences, 2012-NMCA-104 (holding that a private company that contracted with a city to manage the city’s public access cable TV channel was acting on the city’s behalf, which meant that video recordings of city commission meetings held by the contractor were public records covered by IPRA’s disclosure requirements).
The controlling case law on the topic is Toomey v City of Truth or Consequences, decided by the Appeals Court in 2012.
In that case, the city farmed out its public access television to a non-profit corporation.
Deborah Toomey wanted recordings of three county commission meetings, so she filed a request with the non-profit corporation.
Denials by the corporation, and then a court battle, ensued.
The Appeals court reversed the District Court’s decision, that the records Toomey wanted weren’t public.
The main question is: Is the private entity acting on behalf of the public entity? The Appeals Court urges other courts to seek a broad definition for this idea. (Paragraph 22)
In applying these factors, we reiterate that no one factor is determinative, and all relevant factors need to be analyzed on a case-by-case basis. We emphasize, however, that IPRA should be construed broadly to effectuate its purposes, and courts should avoid narrow definitions that would defeat the intent of the Legislature. See Cox, 2010-NMCA-096, ¶ 5 (noting that access to information concerning the affairs of the government is a fundamental and necessary right of every person in this state).
Just because a public entity contracts out some of its duties does not mean those records are no longer public. This is a key thing to remember. Just because a contractor is doing work on behalf of the public organization doesn’t mean the records aren’t public. (Paragraph 26, emphasis added):
Again, we reject the assertion by the City and NMML that IPRA does not apply when a public entity contracts out its services to an independent contractor and when nothing in the operating agreement specifically requires the independent contractor to hold records on behalf of the public entity. As the parties and amici point out, public bodies contract with private entities to provide a wide range of services. Today, traditional public functions such as fire protection, transportation, jails, after-school programs, and health care are routinely delegated to private entities—or privatized—for a variety of reasons. To allow such entities to circumvent a citizen’s right of access to records by contracting as the City and NMML suggest would thwart the very purpose of IPRA and mark a significant departure from New Mexico’s presumption of openness at the heart of our access law. See Rio Grande Sun v. Jemez Mountains Pub. Sch. Dist., 2012-NMCA-___, ¶ 9, ___ P.3d ___ (No. 30,698, Apr. 26, 2012) (stating that “IPRA embodies New Mexico’s policy of open government” (interna quotation marks and citation omitted)). We therefore continue to utilize a flexible approach that favors access to records even when held by a private entity.
The Santa Fe New Mexican, Albuquerque Journal and New Mexico Foundation for Open Government sued Corizon Health for the settlement agreements it entered into with former Department of Corrections prisoners.
The newspapers and Foundation won at the district court level but Corizon appealed the decision. That appeal is still pending. See case D-101-CV-2016-1742.
This guide, website and all the information contained therein is distributed under a Creative Commons 4.0 Attribution-Only license, unless the copyright is otherwise preserved.
