Opinion: Good guys win one with punitive damage decision

ESPANOLA — Finally: a win for the good guys, when it comes to keeping government processes open to the public.

Justice Miles Hanisee wrote in a Sept. 24 Court of Appeals ruling that Marcy Britton had the right to attorney fees, costs and damages, contrary to the finding of District Court Judge Shannon Bacon of Bernalillo County.

Bacon had found that Britton could not seek punitive damages and could only seek actual damages. Actual damages usually must be demonstrated in a way to show loss to convince a judge to award up to $100 per day for the time the records were denied.

Hanisee reversed Bacon’s decision and stated Britton could be awarded punitive damages.

The case originated in 2007 when then-Attorney General Gary King set up an animal cruelty task force. Britton is an animal rights activist and took an interest in the task force’s methods.

Getting little information from the AG’s Office, she eventually resorted to requesting records via the state’s Inspection of Public Records Act. For two years she danced back and forth trying to coerce documents from the AG. After she felt all negotiations had been exhausted, she coincidentally heard that the State Auditor’s Office had some documents responsive to her request, which the AG had and did not provide.

That’s great information for a lawsuit. So Britton filed and won at the district court level. What she didn’t win was the argument for damages.

Judge Hanisee just remedied that.

AG Hector Balderas said Sept. 27 he wants the Legislature to make penalties stronger when it comes to public agencies violating the Act. We don’t know if stronger means more in amount or more liberally applied.

“I am calling for stronger penalties, and, quite frankly, to put teeth into the law once and for all,” he said.” I simply do not have the enforcement tools or the front-end fining ability I need to truly hold agencies accountable.”

We would argue Balderas needs to actually address the many complaints to his office and call out the bad players. Issuing some strong opinions in support of the Act would be a good start.

Penalties are already in place but the main problem with all of the monetary aspects of the Act is that when a private company, such as the Rio Grande Sun, sues a public entity, such as the New Mexico State Police, one side (the Sun) is using its own money and State Police are spending taxpayers’ money. They have no incentive to settle, keep costs down, nor avoid penalties.

Another aspect of suing government agencies under the Act is that most of the time the state’s insurance agency Risk Management steps in and spends other taxpayer money. That agency is not interested in truth, justice nor answers. It just wants cases to go away.

So Balderas calling for “stronger” penalties does nothing to scare public agencies. They misbehave because they can.

Now if he’d like to talk about throwing some records custodians in jail for violating the Act or fining attorneys who tell records custodians it’s OK to withhold documents, or spank law enforcement leaders who routinely and wrongly spout “investigative exception,” with no knowledge what that really means, then we’ll help Balderas lobby.

But raising fines on taxpayers, by proxy, won’t make any of the many bad actors in government at all levels behave better.

The problem starts with elected leaders who appoint unqualified people with questionable integrity. Fines won’t fix that. Voters probably can’t even fix that, but that’s where we should start.

— Rio Grande Sun