FILED 12TH JUDICIAL DISTRICT COURT o :RO COUNTY NM 4/28/2016 8:05:08 AM KATINA WATSON CLERK OF COURT STATE OF NEW MEXICO ‘Serena Counts COUNTY OF OTERO TWELFTH JUDICIAL DISTRICT COURT WENDY IRBY, Plaintiff, v. No. D-1215-CV-201400615 MAYOR SUSIE GALEA, in her Official ‘Capacity, and the CITY OF ALAMOGORDO, Defendants. MINUTE ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ON DAMAGES, ATTORNEYS’ FEES, AND COSTS FOR VIOLATION OF THE NEW MEXICO INSPECTION OF PUBLIC RECORDS ACT ‘Wendy Irby filed a request with the City of Alamogordo to inspect a Facebook page established by the Mayor, including associated Facebook data currently not available online. ‘The City denied her request with the explanation that the Mayor's Facebook page is not a public record under the Inspection of Public Records Act ("IPRA") because the Mayor did not create the page “on behalf of* the City. Irby filed a complaint against the Mayor and the City in the District Court alleging that the City's denial of her request violated IPRA. Irby demanded actual and statutory damages, costs and reasonable attorney's fees, together with a declaration that the City did violate IPRA, and a writ of mandamus or an injunction requiring the City to produce relevant documents in its possession. The Mayor answered that she is not the records custodian so Irby has no claim against her. The City answered that the Mayor's Facebook page is not a public record under IPRA because it was not "used, created, received, maintained or held by or on behalf of* the City. Irby moved for a summary judgment that the Mayor and the City violated IPRA, and for an award of statutory damages, attomey's fees, and costs. Irby asserted that the City possesses responsive public documents and its refusal to provide them is unreasonable. The Mayor and the City responded that Irby failed to establish as an undisputed fact that the Mayor's Facebook page relates to public business, or that itis held by or on behalf of the City.IPRA requires that responsive public records generally be made available for inspection within fifteen days ofa written request. § 14-2-8(D) NMSA 1978. The deadline can be ‘extended for some broad and burdensome requests, § 14-2-10 NMSA 1978, and some specific types of public records can be withheld, § 14-2-1(A), although neither of those provisions apply in this case. Ifa request is denied, a written explanation is due by the 15-day deadline, and an ‘unreasonable failure to meet the denial deadline can be sanctioned with an award of damages, attomey's fees, and costs. § 14-2-11(C). If proper request is denied, the court can issue a writ ‘of mandamus or an injunction to allow inspection, and can award damages, attomey's fees, and costs. § 14-2-12 NMSA 1978. The remedy for delay under § 14-2-11 is a separate remedy from that for improper denial under § 14-2-12. Faber v. King, 2015-NMSC- 015. Nominal per diem damages are not available for improper denial of inspection. Id, at $40. A “record” under IPRA can be in any form, § 14-2-6(G), and there is no contention here that a Facebook page cannot be a record. For a record to be “public ", however, it must have two other attributes: be "used, created, received, maintained or held by or on behalf of any public body," and; “relate to public business..." Jd. ‘The parties do not dispute that the Facebook page in question was created and used by the Mayor, but the Mayor and the City argue that the Mayor by herself is not a "public body". Accordingly they say, relying on authority from other states discussing email communications, that she can only create a “public record” by her actions on behalf of the City, or ifthe City ratifies her actions after the fact. Irby counters that the Mayor of Alamogordo "is" the executive branch of the City and is therefore by herself a "public body". Irby’s argument ‘overstates the role of mayor under the Alamogordo City Charter: although she is the ceremonial head of city government and has specific roles in city planning and appointments to boards and commissions, she “has all the powers and duties of a Commissioner, including the right to vote ‘upon all questions", and performs other duties in cooperation with a City Manager. It appears that the Mayor holds very little real authority that would be considered "executive," and is instead, functionally, a member of the legislative branch with additional "executive" powers and Guties. There is no evidence that the Mayor exercises day-to-day oversight of the executive functions of City government, a role played instead by the City Manager, and itis not accurate to consider her the functional equivalent of "the executive branch.” Therefore, whether a Facebook page created and used by the Mayor is a public document requires further analysis. 2By the Mayor's affidavit, she and the City assert that the City did not authorize creation of her Facebook page nor ratify its creation or use later. They go on to state, in a conclusory fashion, that the Mayor did not create or use the Facebook page "on behalf of" the City, citing for comparison State ex rel. Toomey v. City of Truth or Consequences, 2012:NMCA-104, where records of meetings created by a private entity under contract with the city were determined to be public records because they were created “on behalf of* the City. In this case, the argument is overbroad: the fact that the City Commission did not, as a group, instigate or later ratify the ‘creation of the Mayor's Facebook page does not prevent it being "used" by the City Commission to the extent that the Mayor receives information which she incorporates into commission discussion and decision, or to the extent that she disseminates information or opinion with the intent to generate public support for particular actions of the commission. Either circumstance could create a basis to bring the document within the scope of the Inspection of Public Records Act. ‘The Mayor's affidavit says that "{her] reason for creating the page was to communicate with [her] constituents regarding [her] activites intially as an individual City Commissioner and later as Mayor.” Irby notes that the page identifies Galea as the Mayor and lists the business hours and phone number of the City government office, and contains the statement ofits purpose to “help keep citizens informed who do not otherwise use the local newspaper, or have the time to email and call their elected official.” Irby argues that the content of communication to and from the Mayor gives it the character of public business, meeting the critical criterion of a “substantial nexus" with the official’s government activities. ‘The record supports a conclusion that Irby has met her burden to present a prima facie case that the Mayor's Facebook page is used by the City Commission, even if no other City Commissioner approves of its use by the Mayor. ‘The Mayor and the City also conclude that the City does not "hold the Mayor's Facebook page because it does not have actual possession of the record nor does the City have authority to require the Mayor to produce the record, and that itis Irby's burden to prove otherwise. If the City does not "hold” the requested document, then the Mayor does. Having ‘swom oaths to uphold the laws of the State of New Mexico, it is the duty of each member of the City Commission, including the Mayor, to ensure the rights of the people under the Inspection of Public Records Act. The City’s circular argument that Irby states no claim against the Mayor because she is not a “public body” that can hold public records, and that the City has no 3responsibility to disclose records which the Mayor holds, is an approach which would substitute a shell game for the right of the public to be aware of the actions of its public officials. ‘Turing to the second criterion for designation of a record as "public", the Mayor and City deny that the Mayor's Facebook page relates to "public business”, citing decisions from other states to define the term. They characterize Irby’s request as directed to the Mayor's personal, rather than public, actions. To the contrary, the descriptions of the content and use of the Mayor's Facebook page furnished in the affidavits of both the Mayor and Irby clearly set forth the focus on public business. ‘The critical question, unanswerable ‘on this record because of the Mayor's and City’s refusal to disclose, is whether the records include a mix of public and private material, The Mayor and the City describe Irby's request as encompassing the "Friends side" of the Mayor's Facebook page and express concer that personal privacy may be threatened. The parties agree with other authorities that such circumstances require analysis of specific content, including in camera review where communications may contain a mix of public and private concerns. An in camera review of these specific records may be needed. Therefore, in consideration of the foregoing, I conclude that Irby is entitled to summary. judgment including a finding that the Mayor's Facebook page is a public document subject to inspection and disclosure and that the City's refusal of Irby's request is wrongfill. Irby is entitled ‘to an injunction requiring the City, or the Mayor on the City’s behalf, to disclose the entirety of the Mayor's Facebook page except to the extent that in camera review would support a conclusion that some part must be redacted to protect individual privacy rights, Counsel for Irby shall prepare a form order granting partial summary judgment, including a finding that there are no undisputed issued of material fact regarding the limited issues decided, and the conclusion that Irby is entitled to judgment on these limited issues as a matter of law. ‘The order shall state that, if the Mayor or the City assert that disclosure of any document would violate individual privacy tights, the document(s) at issue shall be submitted under seal for in camera review and determination. The summary judgment granted herein does not address whether Irby has suffered any actual compensable damages, but jurisdiction is reserved to make a determination of their nature and extent if proved at trial. The summary judgment granted herein supports an award of taxable costs and reasonable attomey fees, but their nature and ‘extent must still be proven at trial. Counsel for the Mayor and the City shall approve the form of partial summary judgment or shall request a presentment hearing. 4IT IS SO ORDERED. t RITTER, JR. DISTRICT JUDGE