Los Alamos County Attorney Alvin Leaphart, right, and Attorney Tony F. Ortiz who is representing the Los Alamos County Council in a lawsuit alleging violations of the Inspection of Public Records Act filed by former Los Alamos resident Patrick Brenner. Photo by Maire O’Neill/ladailypost.com
Attorney Blair Dunn, left, and his client Patrick Brenner await a hearing Friday afternoon in Brenner’s case against the Los Alamos County Council. Photo by Maire O’Neill/ladailypost.com
First Judicial District Judge Greg Shaffer directed attorneys for Los Alamos County Council, former Los Alamos resident Patrick Brenner and Councilor Susan O’Leary Friday to consult in good faith on emails held in O’Leary’s private email account and come up with a concrete proposal as to how to proceed to bring the case to prompt resolution.
Judge Shaffer asked for some parameters that allow all parties to know what the general contents of the emails are so that they can make targeted arguments as to whether they are public records, and if so, why they might otherwise be exempt from disclosure.
His order came following a hearing on a motion by the Council asking the court to conduct an in camera review of O’Leary’s emails from May 15, 2017 to determine if they are public record and subject to review under the New Mexico Inspection of Public Records Act (IPRA).
The IPRA case filed by Brenner accuses the Council and Designated Custodian of Records Barb Ricci of not turning over O’Leary’s emails subsequent to an IPRA request he filed asking for all May 15, 2017 emails from Council members.
The motion stated that the Council had not reviewed the documents, if any, that are in O’Leary’s possession and control, and that O’Leary’s position is that the emails are not subject to IPRA because they don’t relate to public business. It added that O’Leary had withheld the emails from review by the Council asserting that she has a privacy interest and legitimate concerns related to the release of the documents.
In opening the hearing, Judge Shaffer said while he did not think an in camera review was off the table with respect to a threshold question of whether or not the emails are public records, he was concerned about the request for an in camera review in the particular context of the case with regard to advocacy of the parties and presentation of the issues relative to whether or not any of the emails are public records.
“As I review the papers, you have two potential issues relative to whether or not the emails in question are public records. That’s use of a private email account in the first instance and then whether or not a county councilor can ever take off her county councilor hat when it comes to advocating for or against a county bond issue such that those would be private emails as opposed to public emails,” Judge Shaffer said.
He voiced his concern about giving the emails “to the other side” without any particular explanation about what they were, who they were sent to and what their context was.
“It hampers the adversarial process because you’re not in a position where the parties are able to really brief those issues materially and in the context of any particular email communication,” Judge Shaffer said.
He said he understood the unique circumstances facing the County in that he did not have an assertion from the County as to whether the emails are public record or under what circumstances they may or may not be public records.
“That does in fact give me pause that the agency who received the IPRA request has not really taken a position with regard to the status of the records such as it could be responded to by the plaintiff (Brenner) and those issues could be framed through the adversarial process,” Judge Shaffer said.
Attorney Tony F. Ortiz, representing the County told the court the way he looked at it was two key questions – does the Court have the authority or discretion to utilize in camera review to resolve a disputed IPRA matter and “should the court go there”.
Ortiz said his understanding of O’Leary’s position in the case is that she’s in possession of some emails that she forwarded to her private email server and that at some point some dissemination went out.
“Part of the reason the County has not taken a position is the County has not seen and has not had access to these emails to see whether (they were) modified, whether material was taken out or to what degree public content remains within those emails and so that is important as regards being able to say yes or no this is public or we know it has somehow been modified to private content,” Ortiz said.
Ortiz said from the County’s perspective, in camera review is a perfect vehicle at this juncture if for nothing else but to determine if O’Leary has a cognizable privacy and/or security right. He said the Court as part of that could determine whether the emails are public documents or could just decide it is going to limit the review to just privacy and security concerns.
Judge Shaffer expressed concern that he had not been briefed on what the parameters would be for privacy or security issues.
“How do I apply IPRA’s definition of public record in this particular fact context?” he asked.
He said he had read where Attorney John Pound seemingly asserted that you can have a county councilor advocating as a private citizen on behalf of a county bond issue and that that would be private activity as opposed to public activity.
Ortiz suggested O’Leary possibly enter an appearance of counsel to assert her rights as to what she believes the limitations should be and possibly let the parties chime in on those asserted interests and whether they believe there’s a public document involved that requires an IPRA provision.
“At this point we’re hamstrung in pretty much the same way. We don’t have the documents in our possession and if it would help the court, it might be beneficial to proceed. Our thought today was we wanted to at least propose to the court that in camera review might be faster, less use of resources and would give the plaintiffs what they need quickly,” Ortiz said. “In terms of what we’ve done, we believe the County has provided, has abided by the statute in terms of reasonable review, promptly responding with what we had in our control and beyond that we would like to expedite this process and get to the plaintiff what they need.”
Brenner’s attorney, Blair Dunn, said Judge Shaffer had absolutely hit on the relevant questions and that working within those questions he and his client could get to the point where they were okay with the documents being presented to Judge Shaffer for in camera review. Dunn said some sideboards on what Judge Shaffer should be looking at would be helpful.
Dunn told the court some persuasive authority in what is or is not a public record could be found in a recent judgment by Judge Sarah Singleton where she stated the law is clear that when a person conducts public business on a private email account, the record created is a public record subject to protection under IPRA. That person, is holding that email on behalf of the public entity and it has to be disclosed if it existed at the time of an IPRA request, Dunn said.
“To the extent that Councilor O’Leary is talking about a public rec bond, that’s public business and it’s absolutely a public record,” he said. “When it comes to privacy and security concerns, that’s already spelled out in the law. Part of the reason we’re in this conundrum is because the County didn’t take the steps that the County should have to get these emails so that they could perform the review of her privacy and security and compliance with IPRA before the disclosure of records to my client.”
Dunn said that’s the conundrum and that the County knows and has very competent attorneys that could have looked through the emails themselves.
“They could have sought the assistance of this court the same as we’ve done for some sort of mandamus to require her to turn those (emails) over to the County so that they could review them so that they could comply with the law.
Judge Shaffer asked Dunn if extension of Judge Singleton’s rationale in her judgment would turn a councilor who has emails in a private account into a records custodian that would be subject to an IPRA complaint. Dunn replied that the act of creating, maintaining and holding those records turns that person unto a custodian of those records until they relieve themselves of that responsibility. He said the point at which the records custodian becomes the person in the lawsuit is when the records are turned over to them. He said until then, the person who’s holding them and maintaining them on behalf of the agency is the custodian.
Ortiz asked the court to consider some limited entry by O’Leary’s attorney, Kate Ferlic. He asked the court to grant the motion for in camera review with whatever limitations and assistance of briefing the court might deem as appropriate.
Judge Shaffer said he was glad the parties had made some headway. He said that abstract briefing to the court as to when privacy may or may not be an issue is not as helpful as if he had a concrete description of the emails at issue so that folks can take their positions as to whether they’re public records or there are bona fide security issues.
He denied the in camera motion but granted a verbal stipulated motion between the parties to allow Ferlic to intervene on O’Leary’s behalf for limited purposes.
Attorneys for both sides met briefly with Ferlic at the courthouse following the hearing. A status hearing has been scheduled for 11:15 a.m., Jan. 24 in Judge Shaffer’s courtroom in Santa Fe.
