Am. Civil Liberties Union of N.M. v. Duran

• Decision Date: 20 April 2016
• Docket Number: No. 33,781.,33,781.
• Citation: 392 P.3d 181
• Parties: AMERICAN CIVIL LIBERTIES UNION OF NEW MEXICO, Plaintiff–Appellee, v. Dianna J. DURAN, Defendant–Appellant, and Christiana Sanchez, Defendant.
• Court: Court of Appeals of New Mexico

392 P.3d 181

AMERICAN CIVIL LIBERTIES UNION OF NEW MEXICO, Plaintiff–Appellee,

v. Dianna J. DURAN, Defendant–Appellant,andChristiana Sanchez, Defendant.

No. 33,781.

Court of Appeals of New Mexico.

April 20, 2016.

ACLU of NM Foundation, Alexandra Freedman Smith, Law Office of Philip B. Davis, Philip B. Davis, Albuquerque, NM, for Appellee.

Hector H. Balderas, Attorney General, Fuqua Law & Policy, P.C., Scott Fuqua, Special Assistant Attorney General, Santa Fe, NM, for Appellant.

OPINION

WECHSLER, Judge.

{1} This case presents yet another opportunity to interpret provisions of our Inspection of Public Records Act—this time with respect to the district court's award of attorney fees.

{2} Appellant, former Secretary of State Dianna Duran, appeals the district court's order granting attorney fees.¹ Appellant's primary argument is premised upon her assertion that the final responsive records to Appellee American Civil Liberties Union of New Mexico's public records request were produced on May 25, 2012. Taking this assertion as true, Appellant argues that her production of any records after May 25, 2012 could not form the basis of "successful" litigation under the statute either because (1) the subsequently produced records were non-responsive or (2) Appellee already possessed the records at the time of production. In a related claim, Appellant argues that the district court's award of attorney fees accrued after May 25, 2012 was not "reasonable" as that word is used in the statute because Appellee's sole purpose in continuing the litigation beyond that date was to investigate the validity of Defendants' claim that they possessed no additional responsive records.

{3} We conclude that Appellant violated the Inspection of Public Records Act by withholding responsive records until the last of those records were produced on June 5, 2013. Because additional responsive records that were previously withheld were produced during the pendency of the litigation, Appellee's litigation was "successful" as that word is used in the statute. For the same reason, and for additional reasons related to Defendants' conduct as discussed below, the district court's grant of attorney fees was also "reasonable."

{4} Appellant's secondary argument is that the nature of Appellee's settlement offer rendered the accrual of any post-settlement-offer attorney fees unreasonable under the statute. Because this argument is also unsupported by New Mexico law, we affirm.

BACKGROUND

{5} On March 15, 2011, the New Mexico Secretary of State's Office announced that an internal investigation had revealed one hundred seventeen instances in which foreign nationals registered to vote in New Mexico and that, in thirty-seven of those instances, the illegal registrants had actually voted in New Mexico elections. In response to this statement, Appellee filed a request with the Secretary of State's Office, pursuant to the Inspection of Public Records Act (IPRA), NMSA 1978, §§ 14–2–1 to –12 (1947, as amended through 2013), requesting production of all public records that supported the allegations. The same day, Appellee filed a similar IPRA request with the Governor's Office.

{6} The Governor's Office produced various public records relevant to this litigation in response to Appellee's IPRA request. Among these records was an email thread (the Colorado emails) dated March 8, 2011 to March 9, 2011. The Colorado emails began with an email from the Colorado Department of State that was forwarded to the Secretary of State's Office Bureau of Elections Director, Bobbi Shearer, and continued as a discussion between Shearer and the Director of Policy and Planning for the Governor's Office, Matt Kennicott. The emails between Shearer and Kennicott discussed a proposed database crosscheck between the Secretary of State's Office and the Motor Vehicle Division of the Department of Taxation and Revenue (MVD) for the purpose of determining whether noncitizens were registered to vote in New Mexico.

{7} On March 31, 2011, Defendants formally responded to Appellee's IPRA request. Defendants did not produce the Colorado emails but did produce twelve redacted emails and one letter addressed to a New Mexico assistant attorney general. Additionally, Defendants described certain responsive records that were being withheld under IPRA disclosure exceptions. Defendants did not disclose the existence, or justify the withholding, of the Colorado emails but instead specifically stated "[t]he Secretary of State's Office does not possess any [responsive] documents that reflect communications between the Office of the Secretary of State and the Governor's Office[.]"

{8} On April 11, 2011, Appellee sent a second IPRA request to the Secretary of State's Office. This letter supplemented Appellee's original IPRA request with requests for the production of additional records. Defendants produced no additional records in response to Appellee's supplemental request.

{9} On July 20, 2011, Appellee filed this lawsuit to force the production of public records allegedly withheld in violation of IPRA. In its complaint, Appellee alleged that the Colorado emails provided the impetus for the Secretary of State's Office investigation into whether non-citizens were illegally registered to vote in New Mexico. The complaint disputes Defendants' denial of the existence of responsive communications between the Secretary of State's Office and the Governor's Office by reference to the Colorado emails.

{10} In their answer, Defendants acknowledged the existence of, and confirmed certain content within, the Colorado emails. During the discovery process, Defendants produced additional records, including spreadsheets used by the Secretary of State's Office in its review of New Mexico's voter registration file and voter registration cards for one hundred fifteen of the one hundred seventeen individuals that the investigation identified as registered voters despite not being New Mexico residents.

{11} On October 20, 2011, Defendants provided a privilege log that outlined certain documents withheld from production, including: (1) a list of one hundred seventeen names that appeared in both the Secretary of State's voter file and the MVD foreign national database (list of 117), and (2) a list of thirty-seven names of registered voters who may not be New Mexico citizens but appear to have voted in a New Mexico election (list of 37).

{12} On January 12, 2012, Appellee filed a motion for summary judgment, requesting that the district court order production of the two lists, as well as all other records responsive to its IPRA requests. The lists then became the subject of an email exchange between the parties. On February 6, 2012, Appellee sent a letter to Defendants outlining its understanding as to the existence of the two lists. On February 13, 2012, Defendants responded with a letter intended to clarify "confusion about the state of the documents at issue." As clarification, the letter stated, "[w]hen I say that the Secretary of State's Office did not create such lists, what I mean is that such lists do not physically exist.... In identifying those voters, the Secretary of State did not generate any document separately listing them."

{13} The next day, Appellee responded with a letter stating, "[g]iven the confusion surrounding the public records, [Appellee] feel[s] that it is necessary to depose [Appellant] in order to obtain her responses under oath." Appellee then filed notice to conduct an in-person deposition of Appellant.

{14} On March 2, 2012, Defendants filed their response to Appellee's motion for summary judgment. The response stated that (1) the list of 37 does not exist, (2) the list of 117 would be produced upon issuance of a district court order clarifying non-liability under state law, and (3) "[t]he Secretary either has already produced or will immediately produce" all other responsive documents. Attached to Defendants' response was an affidavit of the Secretary of State's Office Chief of Staff, Kenneth Ortiz. The affidavit outlined the investigative procedure leading to the March 15, 2011 announcement and described the generation of the list of 117. The affidavit additionally stated that a physical copy of the list of 37 was never generated.

{15} On March 6, 2012, Defendants filed a motion for protective order to prevent Appellee from conducting an in-person deposition of Appellant. In support of the motion, Defendants argued that Appellant had no personal knowledge of the investigative process or documents at issue. Appellee filed a response outlining Defendants' confusion as to the existence of the list of 117 and the list of 37, as well as motions to depose Ortiz and Shearer. Appellee specifically noted,

Given the wildly conflicting accounts of the documents which may or may not exist ... [Appellee] must depose [Appellant] to ascertain whether there is, in fact, a list of thirty seven people who allegedly voted illegally, and whether there are additional documents that are responsive to [Appellee's] IPRA requests that have not been produced. Given the multiple inconsistent and contradictory claims as to whether these documents exist at all, it is unreasonable to expect [Appellee] to rely on representations made by counsel instead of obtaining sworn statements.

Shearer's deposition was conducted on May 4, 2012. During this deposition, Shearer was presented with the Colorado emails, which she authenticated.²

{16} The district court entered a stipulated order of partial summary judgment as to the list of 117. In doing so, the court noted that the "remaining issues and requests for relief ... are not affected by this [s]tipulation and remain pending." The list of 117 was produced on May 25, 2012.

{17} In June 2012, reports circulated indicating that executive branch employees were using private or personal email accounts to conduct state business. See Dan Boyd, Private Email Flap Grows, Albuquerque Journal, June 16, 2012,...