Section 14-2-12. Enforcement
The Law
A. An action to enforce the Inspection of Public Records Act may be brought by:
(1) the attorney general or the district attorney in the county of jurisdiction; or
(2) a person whose written request has been denied.
B. A district court may issue a writ of mandamus or order an injunction or other appropriate remedy to enforce the provisions of the Inspection of Public Records Act.
C. The exhaustion of administrative remedies shall not be required prior to bringing any action to enforce the procedures of the Inspection of Public Records Act.
D. The court shall award damages, costs and reasonable attorneys’ fees to any person whose written request has been denied and is successful in a court action to enforce the Inspection of Public Records Act.
Commentary
PERSONS AUTHORIZED TO ENFORCE THE ACT
The Act provides that an action to enforce its provisions may be brought by the Attorney General, district attorneys or a person whose written request for inspection has been denied. The last category of “private attorneys general” is particularly important. Because the Attorney General and district attorneys cannot be everywhere, and resources are limited, private citizens denied inspection often will be able to obtain more effective and efficient enforcement of the Act.
Although the Act does not specify any deadline for bringing a private action to enforce its provisions, general statutes of limitation will apply. Unless covered by a more specific statutory limitation, an action against a municipality generally would be barred unless brought within three years of the act or omission creating the cause of action and, for other public bodies, an action to enforce the Act probably would be barred after four years. See NMSA 1978, §§ 37-1-4, and 37-1-24.
DISTRICT COURT JURISDICTION
The Act confers jurisdiction on the state district courts to hear complaints arising under the Act and to issue the appropriate remedy. Should a district court determine that a public body has illegally denied access to requested records, it may issue a writ or order requiring the public body to allow inspection.
EXHAUSTION OF ADMINISTRATIVE REMEDIES
A person whose request is denied or who does not receive a timely notice of denial is authorized to bring an action to enforce the Act directly. He or she does not have to first comply with any intermediate administrative hearings or other procedures created by the public body to handle denied requests.
Example 64:
A public school board passes an ordinance providing that if the records custodian denies the right to inspect a particular record, the person denied access may request a hearing before the school board. A person residing within the school district requests a copy of attendance records for one of the elementary schools in the district. The custodian denies the request in a timely fashion, and advises the requester that she has the right to appeal the denial before the school board. The requester may decide to pursue the matter before the school board or may proceed to challenge the denial in district court.
DAMAGES
If a private individual whose written request has been denied (or is deemed denied) brings an enforcement action and that person prevails, the court is authorized to award damages, costs and attorneys fees to that person. By contrast, if the Attorney General or a district attorney brings the enforcement action, the Act does not provide for any damages, costs or attorneys fees.
The Act does not specify the type of damages a court may award to a private person who successfully brings an enforcement action. Presumably, however, if the action involves a records custodian who failed to provide a timely written denial, damages might include the penalties discussed above in Chapter X. Damages also could potentially include amounts necessary to compensate the requester for any losses related to the improper denial. However, in the absence of judicial interpretation of the Act’s damages provisions, we do not have a precise picture of what damages are allowed under the Act at this time.
As interpreted by New Mexico courts, the legal remedies provided in the Act are to be used, if necessary, to force a public body to comply timely and promptly with requests to inspect public records. Accordingly, a private individual is not entitled to statutory damages in a lawsuit brought after a public body complies with the Act. See Derringer v. State, 133 N.M. 721, 68 P.3d 961 (Ct. App.), cert. denied, 133 N.M. 727, 69 P.3d 237 (2003).
Example 65:
On the same day, Mr. Deeds and Ms. Brooks file separate requests to inspect public records with the records custodian for a school district. Both requests are overlooked or ignored by the district. After a month passes with no response from the district, Ms. Brooks files a lawsuit in district court to enforce the Act. Two weeks after the lawsuit is filed, the school district notifies both Ms. Brooks and Mr. Deeds that the records they requested are available for inspection.
One month after the school district makes the records available for inspection, the district court finds that the district did not comply with the Act and awards Ms. Brooks attorney fees, costs and damages in the amount of $50.00 per day from the date the school district was required to allow inspection until the date it made them available. Mr. Deeds, unlike Ms. Brooks, did not file a lawsuit to enforce the Act before the school district made the records he requested available for inspection. Because the school district has now complied with the Act, although belatedly, Mr. Deeds may not now recover statutory damages in a lawsuit against the school district under the Act.