V. Section 14-2-6. Definitions

The term “file format” means the internal structure of an electronic file that defines the way it is stored and used. For example, a public body may use Microsoft Word to create electronic documents. Microsoft Word is the file format for those documents.

The term “inspect” as used in the Act means to review any public record that the Act has not excepted from the right to inspect.

The term “person” is not limited to individuals and can apply to almost any type of entity, including corporations, clubs and partnerships.

As discussed above in Chapter III, Section B.8, the Act permits a public body to redact “protected personal identifier information” in a public record before providing the record for inspection and copying. For purposes of the Act, “protected personal identifier information” is all but the last four digits of a taxpayer identification number, financial account number or driver’s license number; all but the year of a person’s date of birth; and a social security number. If a request is made to inspect public records containing personal information, it may be redacted on the grounds that it is “protected personal identifier information” only if the personal information requested falls within the Act’s definition. Personal information in public records that is not “protected personal identifier information” as defined by the Act, must be made available in response to an inspection request, unless that information is protected by another law.

For purposes of the Act, the term “public body” refers to virtually every type of governmental body, office or agency. It includes the state and local governments, and all boards, commissions, agencies and other entities that are created by the state constitution or by any branch of state or local government that receives public funding, including political subdivisions and institutions of higher education. 

Example 30:
A request is made to inspect the file of an employee of a community action agency. The community action agency is a private, nonprofit organization that administers programs aimed at eliminating poverty. The organization receives state and federal funding for its projects, but it was not created by the constitution or any branch of government, and its programs and day-to-day operations are not subject to any governmental oversight or supervision. Under these circumstances, the organization is not a “public body” and is not required by the Act to provide access to its records.

 Example 31:
A county commission decides to lease the county hospital to a private, nonprofit corporation that will be solely responsible for the hospital’s management and operations. The mill levy proceeds collected by the county will be turned over to the corporation for purposes of providing care to indigent county residents and related operations expenses. Two county commissioners will be members of the hospital governing board and the county commission retains the authority to remove and replace the non-commissioner board members if, in the commission’s opinion, the board is not fulfilling its duties to provide adequate health care services to the county’s residents. In addition, the hospital board is required to issue a report to the commission twice a year and submit to annual audits by the county. A citizen of the county asks the hospital board for a copy of all expenditures made by the hospital the previous year for medical supplies. The board constitutes a public body for purposes of the Act because the hospital is owned by the county, receives public funding from the county and is subject to oversight and control by the county commission. Unless an exception applies to the expenditure records requested, the hospital board should make the records available to the requester for inspection.

Example 32:
The governing body of a pueblo receives a written request for copies of all minutes recorded by the body for its meetings during the prior six months. The governing body is not required by the Act to provide access to the minutes because it is not covered by the Act’s definition of “public body.” The Act applies to records of state government and local governments of the state. It does not apply to records maintained by the governments of Native American tribes, pueblos or nations or by the federal government.

A “public record” is defined to include any document, tape or other material, regardless of form, that is used, created, received, maintained or held by or on behalf of a public body, and is related to public business. 

Example 33:
The governing board of a municipal electric utility tape records its public meetings and uses the tape to draft written minutes. Once the minutes are drafted, the tapes are erased and reused.  Two days after a regular meeting of the board, an individual who attended the meeting asks to listen to the tape of the meeting. Unless the  tape has been erased, the board must comply with the request. Until it is erased, a tape recording of a board meeting is used, maintained or held by or on behalf of the board and, therefore, constitutes a public record. During this time, even if it is very short, the tape is subject to inspection.

Example 34:
A person studying the process of governmental decision making submits to the records custodian for the governor’s office a request to inspect all email messages transmitted between the governor’s office and the speaker of the house of representatives during the legislative session. Finding no exception under the Act or other law precluding public disclosure, the records custodian permits the requester to review and print copies of the requested messages that have been stored in the governor’s office’s computerized database, thereby complying with the Act.

 Commentary
Records used, created, received, maintained or held on behalf of a public body are public records just as if they were maintained by the public body itself. In this regard, if email is used to conduct public business, the email is a public record even though a personal account is used. The person using the personal account is effectively using, creating, receiving, maintaining or holding the public record on behalf of the public body. On the other hand, not every personal email of a public official is necessarily a public record. The communication must relate to public business and be maintained or held on behalf of a public body to be a public record.

 Example 35:
The mayor of a city routinely uses his personal email account to communicate, in his official capacity, with city councilors and lobbyists regarding city business. An interested citizen requests all email communications between the mayor and lobbyists regarding an issue currently facing the city. In responding to the request, the mayor must include all applicable messages sent to and from his personal email account as they are records related to public business held on behalf of the city.

Example 36:
Joe works for the Department of Game and Fish. Joe receives a personal email, on his personal account, from Jane, a private citizen, that contains a comment on an issue before the Department of Health. Jane is Joe’s personal friend and is not connected to his work for the state. Joe replies to the email. The emails were not sent or received in Joe’s official capacity and did not influence his work. We do not believe the emails are public records, even though they technically relate to public business, because they were not used, created, received, maintained or held on behalf of a public body.

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).

 Commentary
The definition of public records covers virtually all documents generated or maintained by a public entity, including (unless covered by a specific and express exemption) government vouchers and other records of public expenditures, public contracts, employment applications, public employee salaries, final agency decisions, license applications and accident reports. Despite the breadth of the definition, however, there are some documents that may be kept by a public body or its employees that are not public records. Records are not public if a law states that they are not public records, if they do not relate to a public body’s business or if they are not kept by or on behalf of a public body.

Example 38:
A state agency allocates federal funds to various arts programs throughout the state. As a courtesy, one such program sent the agency director a copy of a management analysis report purchased with federal funds. The report was not kept in the state agency’s files, but was thrown away or sent on to a private organization. The report is not a public record because, although temporarily in the custody of the state agency, the report is the product of a service contract between the private arts program and the contractor that prepared the report and was neither created at the request of the state agency nor used by the private arts program as part of any formal report or application to the state agency. Of course, even though the report is not a public record subject to inspection, the Act would not have prohibited the agency from voluntarily providing the report in response to an inspection request made while the report was temporarily in the agency’s custody.

 Example 39:
A city employee teaches an evening course in a private college program for adults. He used his lunch hour to prepare for class and keeps his papers for the course in his desk in his office. These papers are not prepared in connection with his employment duties and are not public records of the city subject to inspection upon request.

Commentary
In some situations, personal contact information held by a public body may not constitute a “public record” for purposes of the Act. In a recent case, the New Mexico Court of Appeals determined that personal information included in a citizen’s complaint filed with a public body, such as the citizen’s home address and telephone number and social security number, might be redacted before making the complaint available for public inspection. See Cox, 148 N.M. at 941. The court observed that the personal information was not directly related to the complaint submitted to the public body, was not necessary to the public’s inspection of the substance of the complaints, and that release might lead to substantial harm to the citizen complainant such as identity theft. (As discussed above in Chapter III, Section B.8, the Act now expressly permits a public body to redact social security numbers and other “protected personal identifier information” in a public record before allowing inspection and copying.)

For reasons similar to those the court used to justify protecting personal contact information in complaints filed by private citizens, the home address and telephone numbers of public employees may also be protected from disclosure. In the past, a public employee’s personal contact information was considered a public record and subject to public inspection. Because home addresses and telephone numbers were already available to the public through publication in telephone directories and similar sources, there appeared to be little justification for denying public access to the same information contained in the records of public bodies. This view has changed in recent years, due to the wide availability of and access to information on the Internet, concerns about identity theft, and public pressure to limit unwanted telephone, mail, and email solicitations. Records of home addresses and telephone numbers of a public body’s employees constitute “public records” for purposes of the Act only if they “relate to public business.” This is consistent with the Act’s purpose, discussed above, to ensure public access to “information regarding the affairs of government and the official acts of public officials and employees.” Generally, a public body maintains employee home addresses, telephone numbers and similar personal contact information for administrative purposes. The information, by itself, reveals nothing about the official acts of the employees or the operations or activities of the public body. Thus, in most cases a public body may deny a request to inspect records of its employees’ personal contact information because that information is not a “public” record. 

Example 40:
A newspaper requests payroll information for a village’s  employees.    The records include the employees’ names, home addresses and salaries. The village provides the newspapers with copies of the records, after redacting the employees’ home addresses. The village properly denied inspection of the home addresses because that information is not a public record that is open to inspection under the Act.

Commentary
In limited situations, personal contact information for a public body’s employees may constitute a public record that must be made available for inspection. For example, public inspection may be appropriate if a public body’s employee works at home, so that the employee’s work address is also that employee’s home address. Another example is where a public official is required by law to reside within a certain city, county or district. In that situation, the portion of the official’s address that shows the city, county or district in which the employee lives might constitute a public record.