Faber v. King

Decision Date12 July 2013
Docket NumberNo. 31,446.,31,446.
Citation306 P.3d 519
PartiesDaniel M. FABER, Plaintiff–Appellee, v. Gary K. KING, Attorney General of the State of New Mexico, Defendant–Appellant.
CourtCourt of Appeals of New Mexico


Tucker Law Firm, P.C., Steven L. Tucker, Santa Fe, NM, for Appellee.

Gary K. King, Attorney General, Scott Fuqua, Assistant Attorney General, Santa Fe, NM, for Appellant.


KENNEDY, Chief Judge.

{1} This case requires us to determine if damages of $100 per day was a correct and reasonable award in response to the New Mexico Attorney General's wrongful withholding of documents in violation of the Inspection of Public Records Act (IPRA). We conclude that the district court erred in awarding damages under NMSA 1978, Section 14–2–12(D) (1993) without stating the nature and purpose of the damage award and in failing to further support by findings, and we reverse.


{2} Plaintiff Daniel Faber is an attorney who represented three employees of the Attorney General's Office in an employment dispute filed in federal court. The federal court ordered a stay of discovery on May 28, 2010, in order to evaluate an Eleventh Amendment immunity defense raised by the Attorney General. On August 23, 2010, while the stay was still in effect, Faber, in his own name, filed an IPRA request for employment records from the Attorney General's Office. NMSA 1978, §§ 14–2–1 to –12 (1947, as amended through 2011). The Attorney General denied the request three days later, stating that it appeared to “circumvent the discovery process” in the pending lawsuit.

{3} Faber filed a lawsuit against the Attorney General in the state district court to enforce his IPRA request on September 7, 2010. The district court eventually held that the discovery stay did not preempt statutory rights granted to New Mexico citizens by IPRA. It further ruled that the Attorney General had violated IPRA by denying Faber's request and issued a writ of mandamus ordering the Attorney General to comply. The determination of the IPRA violation is not at issue on appeal. Our sole concern is the amount of damages awarded to Faber.

{4} Faber subsequently moved for damages as allowed under IPRA. Section 14–2–12(D). The district court awarded damages of “$10[ ] per day from the date of the wrongful denial to the date the federal court stay was lifted; thereafter, damages of $100[ ] per day until the records are provided.” The district court also awarded costs. Because Faber was proceeding pro se in this matter, he waived an award of attorney fees. The Attorney General appealed the district court's award of damages.


{5} We review questions concerning the application of IPRA de novo. State v. Rivera, 2004–NMSC–001, ¶ 9, 134 N.M. 768, 82 P.3d 939 (stating that [i]nterpretation of a statute is a matter of law, which we review de novo” (internal quotation marks and citation omitted)). To the extent that the Attorney General argues the district court awarded an erroneous amount of damages, we review an award for substantial evidence. Moody v. Stribling, 1999–NMCA–094, ¶ 40, 127 N.M. 630, 985 P.2d 1210 (“As long as there is a reasonable method used to achieve an amount of damages, we will accept that amount.”). The Attorney General argues that per-day damages were wrongfully awarded under the section of IPRA governing failures to respond, rather than the sections applicable to wrongful denials of requests for information. The Attorney General also argues that, once Faber's request was denied, it ceased to exist and, therefore, daily damages were incorrectly calculated to continue to accrue after the denial. For the reasons that follow, we conclude the Attorney General to be incorrect on both issues.

A. Per–Day Damages Are Permitted Under Section 14–2–12

{6} The Attorney General first argues that the district court erroneously applied Section 14–2–11(C)(1) of IPRA to calculate damages. That section states that, if a custodian of records fails to respond to a record request and does not provide a written explanation within fifteen days, the person requesting the information is entitled to damages if the failure to respond was unreasonable. Id.Section 14–2–11(C)(2) provides that the damages for failure to respond shall “not exceed ... [ ]$100[ ] per day[,] and they accrue from the day that the custodian is in violation of Section 14–2–11(C)(3) until he complies.

{7} Section 14–2–12, under which Faber moved for damages, covers actions to enforce a request that was denied. It provides that a person whose request was rejected may bring an action seeking to mandate an official's compliance with the statute and empowers the district court to order any “appropriate remedy” to enforce IPRA. Section 14–2–12(B). Most importantly to the case at hand, Subsection (D) is clear that the court shall award damages, costs[,] and reasonable attorneys' fees to any person whose written request has been denied and is successful in a court action to enforce [IPRA].” Section 14–2–12(D) (emphasis added). Thus, under the plain language of Section 14–2–12, it is clear that the court must award damages and that those damages are not subject to further restrictions. What type of damages are permitted, and for what reasons, is not stated.

{8} IPRA includes these provisions for damages and other remedies to “encourage compliance and facilitate enforcement.” San Juan Agric. Water Users Ass'n v. KNME–TV, 2011–NMSC–011, ¶ 12, 150 N.M. 64, 257 P.3d 884;see§ 14–2–12. First in time among such remedies is the $100 per-day penalty under Section 14–2–11(C) for any agency that does not timely respond to a request. Once an agency denies production of requested documents, however, the party requesting the records is authorized under Section 14–2–12(A)(2) to bring an enforcement action. Then, [t]he court shall award damages, costs [,] and reasonable attorney[ ] fees to any person whose written request has been denied and is successful in a court action to enforce the provisions of [IPRA].” Section 14–2–12(D); San Juan Agric. Water Users, 2011–NMSC–011, ¶ 13, 150 N.M. 64, 257 P.3d 884;State ex rel. Toomey v. City of Truth or Consequences, 2012–NMCA–104, ¶ 27, 287 P.3d 364;Derringer v. State, 2003–NMCA–073, ¶ 10, 133 N.M. 721, 68 P.3d 961. As additional remedies, Section 14–2–12(B) provides for a district court to issue a writ of mandamus directing a defendant to produce the documents as was awarded by the court in this case and also provides for a district court to order an “other appropriate remedy to enforce the provisions of [IPRA].”

{9} Here, the court granted Faber's motion for daily damages from the date of non-compliance until the date of compliance. In the briefs to the district court on damages as well as the hearing, it is clear that all counsel and the court understood the distinction between Section 14–2–11 and Section 14–2–12. Faber never claimed that the $100 maximum in Section 14–2–11(C)(2) applied to his enforcement action. He instead argued below that it was a reasonable amount of damages to apply under Section 14–2–12 because the Attorney General has a constitutional duty to enforce the public's right to access documents. Faber argued that the Attorney General's refusal to honor the request, even after the federal court's stay was lifted, was an egregious act worth $100 per day in damages after the lifting of the stay. The only question we must answer is whether the nature and amount of the award was supported.

{10} The Attorney General argues that the statutory damages are solely intended to be compensatory. We note first that Section 14–2–12 does not limit the nature of damages that may be awarded. Further, the case relied upon by the Attorney General does not support the position that damages under IPRA are compensatory only. See Southard v. Fox, 113 N.M. 774, 779, 833 P.2d 251, 256 (Ct.App.1992) (stating that prejudgment interest is not part of jury-determined damages). The Attorney General also argues that calculating damages by day would leave an agency that denies a request “at the mercy of the court's docket ... [and] dilatory tactics of the requester[.] These are factors to be considered by the district court in its discretion. We are confident a district court is capable of managing its docket to avoid these problems as much as it is able to minimize unwarranted, unintended, or excessive damage awards. Here, the court clearly differentiated between the time during which the federal stay was in effect and the time after it was lifted. Our decision today does not suggest a method of calculating damages under Section 14–2–12(D). We merely examine whether, in this case, the district court's award was supported.

{11} The term “damages” under IPRA has not been construed or limited by our courts. New Mexico has yet to determine if any sort of punitive monetary assessment would be appropriate under Subsections (B) or (D). Existing cases do not help. In Toomey, we remanded to the district court to determine an “appropriate award.” 2012–NMCA–104, ¶ 28, 287 P.3d 364. In Rio Grande Sun v. Jemez Mountains Public School District, the plaintiffs were awarded “nominal damages” that were not appealed. 2012–NMCA–091, ¶ 4, 287 P.3d 318,cert. denied,2012–NMCERT–008, 296 P.3d 490. We note that, in Rio Grande Sun, we discussed that the provision awarding attorney fees further implements IPRA's policy to encourage private citizens to enforce the Act and lawyers to litigate violations of the Act on their behalf. Id. ¶ 19. Here, Faber waived his claim to attorney fees and argued for damages, thus removing from our consideration one possible remedy for successful litigants. C. Clifford Allen, III, Right of Party Who Is Attorney and Appears for Himself to Award of Attorney's Fees Against Opposing Party as Element of Costs, 78 A.L.R.3d 1119 (1977) (discussing states that allow pro se attorney litigants to receive attorney fees and those...

To continue reading

Request your trial
2 cases
  • Faber v. King
    • United States
    • New Mexico Supreme Court
    • March 12, 2015
  • Cooper v. Virden
    • United States
    • Court of Appeals of New Mexico
    • March 23, 2016
    ... ... Defendants dispute that contention, and they also cross-appeal, arguing that the existing punitive damage award is foreclosed by Faber v. King, 2015-NMSC-015, 348 P.3d 173, and that attorney fees are barred by the doctrine of accord and satisfaction. We agree with Defendants. All ... ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT