STATE OF NEW MEXICO COUNTY OF SIERRA SEVENTH JUDICIAL DISTRICT COURT

~-~'" T::: 0 F ~JEii ME X I C :...';::V~tnH JUDICIAL C;~T:;iCT COURT FILE]

2G09 OCT 21 An 11 0
Serena Robert! COURT CLERK

No.: Judge:

D-0721-CV-2009-00098 WILLIAM SANCHEZ

BY LIsa frazler--

DEPU Y

STATE OF NEW MEXICO, ex. reI. DEBORAH TOOMEY, Individually, Petitioner, vs. CITY of TRUTH or CONSEQUENCES, a Municipality; LORI MONTGOMERY, Individually, and In her Official Capacity as Mayor; JERRY D. STAGNER, Individually, and In his Official Capacity as Mayor Pro-Tern; FRED TORRES, Individually, and In his Official Capacity of City Commissioner; EVELYN RENFRO, Individually, and In her Official Capacity of City Commissioner; STEVE GREEN, Individually, and In his Official Capacity of City Commissioners; JAIME AGUILERA, Individually, and In his Official Capacity of City Manager; MARY PENNER, Individually, and In her Official Capacity of City Clerk and Custodian of Records; BERNADINE GARCIA, Individually, and In her Official Capacity as Utility Billing Supervisor; DISTRICT ATTORNEY FOR SIERRA COUNTY, Respondents. DEFENDANTS RESPONSE TO COMPLAINT TO ENFORCE PROVISIONS OF THE PUBLIC RECORDS ACT
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COMES NOW the Respondents (exception of the District Attorney), by

through its counsel, JAIME F. RUBIN, Esq., City Attorney of the City of Trut or Consequences and hereby responds as follows:
Introduction and Statement of Law

Pursuant to Paragraph

9 (a) of the Court's Order filed on August 3, 2009,

the City Commissioners were served with a Summons, a copy of the Petition and a copy of the Order. Said service was performed during a regular City Commission meeting on the evening of September 22, 2009!
Paragraph 9 (c) of the August 3, 2009 Order directed the Respondents'

to

respond to the Petition as if it were a Complaint to Enforce the Inspection of Pub ic Records Act." In responding, the City is fully aware that the recent decision .n
City of Farmington

vs.

Daily

Times,

2009-NMCA-057(May

7, 200)

acknowledged the broad definition "public records" as described in 14-2-1( ) (2005) and that the burden rests upon the custodian to justify why the recor s sought to be examined should not be furnished.
Farmington

See 2009-NMCA-057.

court further acknowledged that our Supreme Court had recognized a

non-statutory confidentiality exception to disclosure under the IPRA. Although the Petitioner's petition is quite lengthy, it appears that h r requested records are embodied in Paragraph
"19" which alleged "For the pa t

five (5) years, I want the Utility Department "audit logs" that details the date, time, Page 2 of7

who accessed and what record was accessed for all personally information (the "PRA Request"). While making her request and subsequent allegations,

identifi ble

however,

he

Petitioner was extremely mindful, and in fact, emphasized, of the need to k ep customers' SSN's (Social Security Numbers) private and confidential. (See

Petitioner's allegations 13-6). Therefore, the legal issue

IS

quite simple; in what manner was the City

willing and able to comply with Ms. Toomey's request for an "audit log", while at the same time preserving the confidential and private information (their SSN's) of its utility customers. As the supporting facts demonstrate, the City's position is as follows: 1. The City does not have an "audit log" which can be inspected. 2. The City could print out a copy of a computer database which contai s out all of the information that the Petitioner is seeking. The copies would th n

have to be redacted to exclude the confidential information such as the SSN's, th s necessitating a second copy. This procedure would contemplate t at

approximately 55,000 copies would need to be generated. 3. Pursuant to 14-2-10, the Petitioner's request was excessive y

burdensome, necessitating a reasonable time to comply with the request.

Page 3 of7

4. Despite the excessive burdensome request, the Respondents were

till

willing to comply with the Petitioner's request, provided she paid a deposit to co er the reasonable copying fees as contemplated by 14-2-9 (B).
Supporting Facts

Please note that this response has not only been signed by the City of Tr th or Consequences City Attorney, but also verified by respondent BERNAD GARCIA, in her Official Capacity as the City's Utility Manager. of the relevant facts are as follows: The City does not maintain a computer "audit log." Further, it would e

impermissible for the Petitioner or anyone without security clearance to view t e computer database, because this information would contain customers' confidenti I information including SSN's. The Petition requested five (5) years of information! accomplished in the following manner: Each separate computer page would have to be printed. Then, each pa e T e This could only e

would have to be reviewed and have the confidential information redacted.

redacted page would then be printed. A page sample is attached as Exhibit "1' . The time and cost involved is summarized in Mr. Hupp's "Calculation of costs for producing audit logs", attached hereto as Exhibit "2". He states that five (5) years

Page 4 of7

of data would consist of approximately 27,300 pages with another 27,300 pa es necessary to produce the redacted pages. Based upon the foregoing information, City Manager Jaime Aguil ra e

responded to the Petitioner's request by requiring a $15,000.00 deposit before records could be provided.

Considering that 14-2-9(B) contemplate copying

charges of up to $1.00 per page, the $15,000.00 deposit for 54,600 pages was extremely reasonable. (Exhibit "3"). The Utility Office Manager followed

Ip

with a letter dated June 19, 2008, in which she advised the Petitioner that there is no "audit log" for her to visually inspect for the application cards on file for t e three (3) months requested. (Exhibit "4"). Thus, the City could only produce t e records in the manner prescribed above. It is interesting to note that the Petitioner made a complaint to the Stat's Attorney General's office. Her complaint included her request for an "audit 10 " See page 2, paragraph 3(a) of Exhibit "5"; letter from AG dated June 15,200 The City responded to the AG by letter dated June 15, 2009, Exhibit "6 '.

Apparently, the AG was satisfied with the City's response, as nothing has be n heard from the AG since. It should also be emphasized that the Petition wrongfully individual City Commissioners. named t e

In a City Manager form of Government such s

that exists in the City of Truth or Consequences, the City Commissioners are not
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responsible

for the day-to-day

operations

of the City.

Indeed, the he

Commissioners weren't even aware of the specific legal dispute until recently. obligations for responding to the Public Records request would fall upon the Manager and his staff. See 3-14-1 et. seg. City's Specific Responses to the Petition
,

1. As to the allegations contained in. paragraph "1" of the petition,

he

Respondents acknowledge the SSN policy. All of the allegations contained in s id paragraph are denied. 2. The allegation contained in paragraph "2" through "12" of the petiti n are admitted with the exception that Jaime Aguilera is no longer the City Mana of Truth or Consequences. 3. All other allegations of the petition which are not specifically admitted in

BERNADINE GARCIA
Utility Manager for City of Truth or Consequences 505 Sims Street Truth or Consequences, N
(575) 894.6 1

JAIME

Attorney fI ity of Truth or Consequences Jaime F. Rubin, LLC P.O. Drawer 151 Truth or Consequences, NM 87901 575.894.3031 Fax: 575.894.3282 Page6of7

CERTIFICATE OF MAILING The undersigned hereby certifies that a true and correct copy of foregoing DEFENDANTS RESPONSE TO COMPLAINT TO ENFOR PROVISIONS OF THE PUBLIC RECORDS ACT was mailed to Debo Toomey, Petitioner, at 406 Broadway Street, Truth or Consequences, NM 879 day of October, 2009,. ~ he E ah 1,

this1,.\

JAIME F. B ,Esq. Attorney for City of Truth or Consequences Jaime F. Rubin, LLC P.O. Drawer 151 Truth or Consequences, NM 87901 575.894.3031 Fax: 575.894.3282

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EXHIBIT

"111 -I.

Memo
To: Mary Penner-Acting From: Bob Hupp-Information Date: October 7, 2009 Subject: Calculation of costs for producing Audit logs City Manager Systems Specialist

Attached to this memo is a copy of the computations I did for then City Manager, Jaime Aguilera, regarding the costs associated with producing the audit logs requested by Ms Toomey. The original computation was done in response to her request in, I believe, January and was not, to my knowledge, saved. The attached follows the logic of the original computation and was produced on June 12, 2009 in response to the Attorney General's follow up to Ms Toomey's request. Regards,

C:\Users\BobH.CITYHALL.OOO\Documents\Toomey

Transmittal.doc

EXHIBIT

",., " '"

Page

Jaime, I saw that you took the ownership of the response to the AG regarding how the city computed the $15,000 for the audit log that she was requesting.
I don't know if you kept the computation that Bema and I did regarding this but I've recreated it as follows:

I ran an audit log for one operator for 1 day (actually, I ran four random days within the period kept on line since ADG was first implemented on our system in 2001 and took an average of the number of pages). The audit log for 1 operator for 1 day averaged 7 pages. Over the period of time requested, there have been approximately 10 operators in the utility office. We would therefore have to run reports on all 10 individually since the ADG report doesn't list the operator accessing the record if you are reporting on all operators. Despite the fact that we will have to run reports on 10 operators, it is unlikely that there will be data for more than three of them in any given time period. (for example, currently there would be data for Bema, Traci and Silke. Prior to that there would be data for Bema, Silke and Janet; prior to that, Bema, Silke and Nicole etc.) Assuming that there are 3 operators with data at any give time, despite the fact that the operators with data may change as people are hired and resign, that means that for any given day in the period requested there are 3 operators * 7 pages/operator/day or 21 pages of data per day. Since there are 5 work days per week and 52 weeks per year that means that 1 year of data consists of 5 * 52 * 21 or 5460 pages. As Ms Toomey requested 5 years of data, that means that the report would consist of 5 5460 pages or 27300 pages. I redacted customer data from a page of this report and it took approximately 3 minutes. Multiplying this times 27300 pages or 81900 minutes or 1365 hours to do the data redaction. As this is slightly under a man year of labor, I have assumed that we would hire an intern to do the data redaction. Interns are typically hired at minimum wage, currently at 7.251hr. This gives you a labor cost to redact the data of $9896. Thus the cost to provide the data to Ms Toomey is: Print initial report of 27300 pages at 25 cents per page Labor cost to redact data $ 6825 $ 9896 $ 6825

Copy redacted report

This totals to $23546 for the information she has requested. While we cannot charge for the data redaction, the city commission should be aware of what it is spending just under $10,000 for.

As I did not record the dates I ran reports for in the initial computation, I cannot justify the initial estimate of $15,000 based on copying costs. Using the data I've run currently, results in a printing and copying charge of $l3650. I can only assume that the reports run for the initial calculation showed a slightly higher page/day count. For the record, the days used in this computation selected at random were: Feb 12,2009 Apr 04,2006 Sep 09,2008 Jun 30,2006 Please note that we would have no problem in responding to Ms Toomey's request if she would just reduce the data volume. If she would pick some random dates within her requested period and ask for them, there would not be a problem in giving her a sample for her review.

City of Truth or Consequences

505 Sims Street Truth or Consequences, New Mexico 87901
(575) 894-6673 FAX: (575) 894-7767

May 30,2008

Ms. Toomey 406 Broadway Truth or Consequences, NM 87901

Dear Ms. Toomey, Pursuant to the New Mexico Inspection of Public Records Act Section 14-2-9 B. (3), I aminformin you that the City will not comply with your request dated 5/28/08 (attached) related to the "audit log" u til a deposit of $15,000 is received from you to cover the expense of printing the report for your inspect" n. Further, I am also hereby informing you that your request is considered "Excessively Burdensome" pursuant to Section 14-2-10. This means that when you pay the deposit, the City expects that the ti produce the document will exceed the time limits set forth in the Act and we will provide the docu "reasonable amount of time" as cited in said Section.

Sincerely yours,
,~~-.::::=-

---:::?
//

b/O

/.Yam e Aguilera
City Manager

C:

Honorable Mayor and City Commissioner Jay Rubin, City Attorney

EXHIBIT
C:\Documents and Settinasviaime.Cl'I'YlfAl.L'Mv Documents\CITY CLERK\toomev 5-10-0R.ltr.rlnc

"3"

City of Truth or Consequences Utility Office

505 Sims Street Truth or Consequences, New Mexico 87901 City: (575) 894-6671 FAX: (575) 894-0569

June 19, 2008

Deborah Toomey 406 N. Broadway Truth or Consequences, NM 87901

Re:

Request for Documents Dated 6113/08

Ms. Toomey, at this point in time, there is no "audit log" for which you are requesting to visually inspect. These application cards are filed daily. The only reason a filed application card would be accessed is if a customer stated they were not responsible for an account that was in their name. At that time we would retrieve their information for verification. The Utility Office has had no such issues in the months you are requesting.

Sincerely,

BernaG cia Utility Office Manger

cc:

Honorable Mayor & City Commission

Jaime Aguilera, City Manager Jay Rubin, City Attorney

EXHIBIT

"4"

GARYK. KING Attorney General

ALBERT J.LA Chief Deputy Attorney G neral

June 10,2009

Mary B. Penner, City Clerk City of Truth or Consequences 505 Sims Truth or Consequences NM 87901 Re: Inspection of Public Records complaint - Deborah Toomey Dear Ms. Penner: The Office of the Attorney General received a complaint from Deborah Toomey alleging that t e City of Truth or Consequences ("City") may have violated the Inspection of Public Records Ac ("IPRA"), NMSA 1978, Sections 14-2-1 through 14-2-12. From her complaint and its exhibits we believe Ms. Toomey has made at least eight written IPRA requests of the City. Enclosed is copy of her complaint; because of the voluminous nature ofthe its 34 exhibits, I have enclosed only those exhibits which appear to be Ms. Toomey's eight specific written IPRA requests. Ms. Toomey claims that the City has not properly responded to her multiple requests to inspect certain City records. Although Ms. Toomey's complaint raises a number of concerns about Ci activities and compliance with certain laws and rules, this Office's inquiry is limited solely to whether or not the City violated the IPRA regarding Ms. Toomey's eight written IPRA requests The Attorney General is charged with enforcement of the IPRA pursuant to Section 14-212(A)(1). If you are not the custodian of public records for the City of Truth or Consequences, please forward this inquiry to that person. In order for us to determine if the allegations in Ms. Toomey's complaint have merit, I ask that you provide us with the following information: 1. Please provide a copy of the City's written notice of the right to inspect public records, and state where this notice is posted. 2. Please state the reasonable fees the City charges persons to make copies of its public records, both paper records and electronic records.

EXHIBIT
III Lomas Blvd. NW, Suite 300.

"5"
(505) 222-9000 Fax (505) 222-9006

Albuquerque, New Mexico 87102

Mary B. Penner, City Clerk City of Truth or Consequences June 10, 2009 Page 2

G)

Please state the date(s) the City's records custodian received Ms. Toomey's eight spec fie written requests to inspect and/or copy public records described as:

. a. .\ May 21, 200S oral request, renewed in writing on May 28, 2008 - Utility Department "audit log" disclosing access to personally identifiable information for the previa s five years (Complaint Exhibit 9) ..'<b. May 22,2008 oral request, renewed in writing on May 28,2008 - documents relating to certain building inspections and to certain prosecutions for the last five years, and fdr documents relating to unlicensed businesses and police dispatches to a specific address for the previous nine months (Complaint Exhibit 9) June 13,2008 - Utility Department "audit log" for the previous three months disclosing access to personally identifiable information that is kept in card catalog and locked i the City safe (Complaint Exhibit 13)
.i'\C.

\- d. June 13,2008 - records regarding City's current internal policy requiring social security numbers for utility services (Complaint Exhibit 14) ~ e. July 9, 2008 - computer "properties" page for Utility Department draft Social Security Number (SSN) Privacy Policy (Complaint Exhibit 21) ( f. July 9, 2008 - electronic copy of database showing Utility Department "audit log" and paper "audit log" locked in card catalog (Complaint Exhibit 22) g. January 21, 2009 - documents relating to $15,000 estimate for fee required to rewrite proprietary software containing personally identifiable information and instruction manuals for this software (Complaint Exhibit 2S)
If

h. January 21, 2009, renewed on February 5, 2009 - backup policy for City computers and backup logs for 2007, August 2007 and April 2008 (Complaint Exhibit 31)
v

4. Ms Toomey's complaint includes what we believe to be the City's responses to Ms. Toomey's eight written IPRA requests specifically identified above: a. May 28, 2008 - undated letter from Bema Garcia, Utility Office Manager, to Mary (Penner) that personal information is not disclosed (Complaint Exhibit 8); May 30, 2008 letter from Jaime Aguilera to Ms. Toomey that fee for printing "audit log" is $15,000 (Complaint Exhibit 10)

Mary B. Penner, City Clerk City of Truth or Consequences June 10, 2009 Page 3

b. May 28, 2008 - Ms. Toomey letter to Mary Penner regarding how City has responded to her oral IPRA requests (Complaint Exhibit 9) c. June 13, 2008 - no City response regarding "audit log" included with Compla nt

d. June 13,2008 - June 19, 2008 letter and responsive documents from Berna Garcia to Ms. Toomey regarding internal privacy policy; July 11,2008 letter from Mary Penn to Ms. Toomey regarding privacy policy (Complaint Exhibits 15-20; 23) e. July 9, 2008 - July 11, 2008 letter from Mary Penner to Ms. Toomey with computer "properties" page for internal privacy policy; July 14,2008 letter from Berna Garcia Ms. Toomey with computer "properties" information (Complaint Exhibits 23-26) f. July 9, 2008 - July 14,2008 letter from Bema Garcia to Mary Penner regarding internal privacy policy and "audit log" (Complaint Exhibit 24) g. January 21, 2009 - January 22,2009 memorandum from Bema Garcia to Mary Penner that there is no documentation for $15,000 fee to rewrite "proprietary software" and the e are no instruction manuals for this software (Complaint Exhibit 29) h. January 21,2009 - January 2 (sic), 2009 memorandum from Bob Hupp to Ma Penner that the City has no responsive records and keeps no computer backups and that information is kept for one month as encrypted backups (Complaint Exhibit 32) /Other than the City's correspondence identified above in Paragraphs 4.a.-4.h., please provide copies of all additional written correspondence the City had with Ms. Toomey regardin her eight specific written IPRA requests identified above in Paragraphs 3.a.-3.h. /5. Please describe all oral communications the City had with Ms. Toomey regarding her eight specific written requests to inspect public records identified above in Paragraphs 3.a.-3.h.

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6. Does an "audit log" as described by Ms. Toomey in her IPRA requests of May 28, 2008 (Complaint Exhibit 9), June 13,2008 (Complaint Exhibit 13) and July 9, 2008 (Complaint /]\ Exhibit 22) exist at the City? If so, in what form does it exist, e.g., electronic, paper, or ~ otherwise?' 7. City Manager Jaime Aguilera states in Complaint Exhibit 10, his May 30, 2008 letter to Ms. Toomey, that "the City will not comply with [her] request dated [May 28, 2008] related to the 'audit log' until a deposit of$15,000 is received from [her] to cover the expense of printing

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Mary B. Penner, City Clerk City of Truth or Consequences June 10, 2009 Page 4 the report for your inspection." copying its public records. Please describe how the City determined this $15,000.00 fee r

By July 13,2009, please provide this Office with your written response, directed to me at the address shown on this letterhead. Please include any documentation and/or information that y u feel is relevant to or supports your position. Following this response date, we will evaluate th complaint and contact you with our conclusions. Please know that our file in this matter, including your response, is a public record, subject to inspection. Very truly yours,

Mary H. Smith Assistant Attorney General Enclosures as stated

City of Truth or Consequences

505 Sims Street Truth or Consequences, New Mexico 87901
CITY: (505) 894,6673 FAX: (505) 894.. 767 7
June 15, 2009

Mary H. Smith Assistant Attorney General III Lomas Blvd., NW, Suite300 Albuquerque, NM 87102 Re: Inspection of Public Records complaint - Deborah Toomey Dear Ms. Smith: Ihave provided the following information as requested in your letter dated June 10,2009. The copy of the City's written notice of the right to inspect public records, and the notice is posted on a bulletin board in the Office of the City Clerk which also includes the fee schedule for copies. Also included are copies of the requests received from Ms. Toomey, and any other written correspondence. Ido not recall oral communication with Ms. Toomey regarding her eight specific written requests due to the volume of requests by Ms. Toomey, and we do not keep documentation on oral communication with customers. Enclosed is the information from Ms. Bema Garcia, Utility Office Manager in reference to the "audit log", and the information from the City Manager on the $15,000 fee, and the information from Mr. Bob Hupp our Information Systems Specialist on how the $15,000 fee was determined. If additional information is needed, please feel free to contact the Office of the City Clerk. Sincerely, ~ner, Enc!'

/5, ~
City Clerk

EX H I BIT

"6"