The law enforcement exception in IPRA is widely misused as a knee-jerk reaction to block access to documents and there are a variety of ways to fight the use of this exception.
Unfortunately, the AG’s Guide is not nearly as clear as it should be on this topic. Before diving into the use and misuse of the four categories that exist for the exception, we should know what documents the exception covers. (It only covers specific documents.)
The first thing to understand is:
1. The exception only applies to investigatory or prosecutorial documents.
Documents that are compiled as part of a Law Enforcement Agency (LEA) investigation or as part of a prosecution are the only documents that the exception applies to.
As a recent example of the attempted misuse of the exemption, the City of Santa Fe records custodian Bernadette Romero tried to block the release of names on the time cards of the officers the Santa Fe Police Department has assigned to the Region III Drug Task Force. (LINK HERE.)
Romero had to send the unredacted documents, per the IPRA request, because the documents are not part of a law enforcement investigation or a prosecutorial action. (The time cards were also not police records.)
A recent district court decision, brought by freelance journalist Peter St. Cyr and the ABQ Free Press, specifically stated and followed through with the current case law that the law enforcement exception only applies to documents/evidence compiled as part of a criminal investigation.
That recent decision was ultimately brought on the back of NM Supreme Court case law, namely, Romero v. City of Santa Fe, 2006 NMSC 028. In that case, the supreme court clearly stated that the law enforcement exemption is solely for investigations/documents compiled as part of investigations.
When fighting an illegal denial for documents/redactions that are made to documents, falsely, under the law enforcement exemption, the Romero v. City of Santa Fe, 2006 NMSC 028 case is the one you need to cite.
In the most recent district court case, the Albuquerque Police Department (aka former records custodian Reynaldo Chavez) argued the inventory of the military-style weapons was either not a record because it was not used by APD (rejected by the judge), exempt under the law enforcement exception (rejected for the above-stated reason) or exempt under the terrorism planning exception (also rejected).
From page 4 of the decision. Emphasis added:
18. Defendants next argue Section 14-2-1(A)(4) NMSA exempts disclosure of the requested inventory. That statutory provision exempts “law enforcement records that reveal confidential sources, methods, information or individuals…[including] evidence in any form received or compiled in connection with a criminal investigation or prosecution….”
19. Defendants admit that the requested inventory has nothing to do with any particular investigation or prosecution as set forth in (A)(4) but “still maintain the outstanding records are law enforcement records that reveal confidential methods and information” because disclosure of the weaponry held by APD “will provide criminal elements with advanced knowledge, which could be used against law enforcement in tactical situations.” Defendant argues, then, “for a broad reading of the law enforcement exception.” IPRA specifically calls for a narrow reading of exemptions to disclosure, not a broad one. Section 14-2-5 NMSA.
20. It is undisputed that the requested inventory is not connected with any specific criminal investigation(s) or prosecution(s), whether active or closed. Defendants’ argument for exemption under Section 14-2-1(A)(4) fails. Romero v. City of Santa Fe, 2006 NMSC 028.
The judge’s decision reflects the case law that the law enforcement exception only applies to documents “connected” to investigations or prosecutions.
2. The exception has four separate and different options
Agencies can only redact or withhold documents for four reasons. They are:
Confidential sources
Confidential methods
Confidential information
Individuals suspected but not charged with a crime
(It should be important to note that in any response to a denial or redaction, the point should be made that these exemptions are not a demand on the agency; rather, they are a way for the agency to redact/withhold documents within the discretion of the agency.)
While IPRA may seem vague on “law enforcement records,” the Arrest Records Information Act (NMSA 29-10, 1 through 8) specifies several types of law enforcement records that are available for public inspection. NMSA 29-10-7 states:
A. Information contained in the following documents shall be available for public inspection:
(1) posters, announcements or lists for identifying or apprehending fugitives or wanted persons;
(2) original records of entry such as police blotters maintained by criminal justice agencies, compiled chronologically and required by law or long-standing custom to be made public, if the records are organized on a chronological basis;
(3) court records of public judicial proceedings;
(4) published court or administrative opinions or public judicial, administrative or legislative proceedings;
(5) records of traffic offenses and accident reports;
(6) announcements of executive clemency; and
(7) statistical or analytical records or reports in which individuals are not identified and from which their identities are not ascertainable.
B. Nothing prevents a law enforcement agency from disclosing to the public arrest record information related to the offense for which an adult individual is currently within the criminal justice system. A law enforcement agency is not prohibited from confirming prior arrest record information to members of the news media or any other person, upon specific inquiry as to whether a named individual was arrested, detained, indicted or whether an information or other formal charge was filed on a specified date, if the arrest record information disclosed is based on data enumerated by Subsection A of this section.
(MORE TO COME)
Documents cited in this article:
1. D-202-CV-2014-03173-Order-on-MSJ-Motion-to-Dismiss-and-Case-Management-Order
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2. Romero v. City of Santa Fe, 2006 NMSC 028 (http://law.justia.com/cases/new-mexico/supreme-court/2006/6ea4.html)
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