Decision Date29 October 2009
Docket Number473.,No. 28,28
Citation227 P.3d 612
PartiesSAN JUAN AGRICULTURAL WATER USERS ASSOCIATION, Electors Concerned About Animas Water, and Steve Cone, Plaintiffs-Appellants, v. KNME-TV, Board Of Education of the Albuquerque Public Schools, Regents of the University of New Mexico, John D'Antonio, New Mexico State Engineer, Office of the New Mexico State Engineer, New Mexico Interstate Stream Commission, and Office of the Governor Of New Mexico, Defendants-Appellees.
CourtCourt of Appeals of New Mexico

Victor R. Marshall & Associates, P.C., Victor R. Marshall, Albuquerque, NM, for Appellants.

Long, Pound & Komer, P.A., Mark T. Baker, Santa Fe, NM, for Appellees.

Peifer, Hanson & Mullins, P.A., Charles R. Peifer, Matthew R. Hoyt, Elizabeth K. Radosevich, Albuquerque, NM, for Amicus Curiae N.M. Foundation for Open Government.


SUTIN, Judge.

{1} The primary issue in this appeal is whether an undisclosed principal has standing to enforce New Mexico's inspection of public records statute when that principal's agent made the inspection request. As discussed in more detail later in this opinion, we hold that the undisclosed principal does not have standing. Others who also seek to enforce the statute, but who never requested inspection, also lack standing.


{2} A law firm, Victor R. Marshall & Associates, P.C. (the Marshall law firm), through one of its attorneys, Victor R. Marshall, made an inspection request under the New Mexico Inspection of Public Records Act (IPRA), NMSA 1978, §§ 14-2-1 to -12 (1947, as amended through 2009), for all records relating to a news documentary program by the name of "The Water Haulers," that aired on KNME-TV in Albuquerque, New Mexico.1 The request was served on KNME-TV, the Board of Education of Albuquerque Public Schools, the Regents of the University of New Mexico, John D'Antonio as the New Mexico State Engineer, the Office of the State Engineer, the Interstate Stream Commission, and the Office of the Governor of New Mexico (collectively Defendants). Some of the requested records were produced by certain Defendants.

{3} Dissatisfied with the responses to the inspection request, the Marshall law firm filed suit on behalf of San Juan Agricultural Water Users Association (the Association), joined by Electors Concerned About Animas Water (Electors) and Steve Cone (collectively Plaintiffs) under the IPRA to enforce the inspection request. It nowhere alleged that Marshall or the Marshall law firm had ever requested access to records as attorney for or agent of any Plaintiff. Nor does the complaint allege that any Plaintiff requested access to documents. The complaint only gave notice that Marshall or the Marshall law firm had requested documents, Defendants failed to produce documents as requested, and Plaintiffs were entitled to damages. Defendants moved to dismiss under Rule 1-012(B)(1) and (6) NMRA on the ground that none of the Plaintiffs was the "person" in the IPRA that requested the records because the IPRA did not provide Plaintiffs with a cause of action against Defendants. See § 14-2-1(A) ("Every person has a right to inspect public records of this state."); § 14-2-8(A) ("Any person wishing to inspect public records may submit an oral or written request to the custodian."); § 14-2-12(A)(2) ("An action to enforce the IPRA may be brought by ... a person whose written request has been denied."). Responding to the motion to dismiss, Marshall submitted an affidavit in which he stated that the Marshall law firm was acting as attorney for the Association when the law firm requested the records.

{4} The district court dismissed the action with prejudice. The court dismissed the Association's claim because the Association was not the person that made the requests for records, having failed to disclose itself as the requester, having failed to disclose its name, address, and telephone number at the time the request was made as required under Section 14-2-8. The court dismissed the claims of Electors and Cone because they had not made any request for records.

{5} On appeal, Plaintiffs assert that the court erred in four respects. First, by violating case precedent, uniform jury instructions, and statute by refusing to apply the common law of agency in favor of compliance with the IPRA. Second, by ruling that, when requesting the records, the Marshall law firm was required to disclose its principal. Third, by ruling in a manner that is contrary to the express purpose and policies of the IPRA. Fourth, by violating Rule 1-015(A) NMRA by refusing to allow the complaint to be amended to add the Marshall law firm as an additional plaintiff. The New Mexico Foundation for Open Government (NMFOG) filed a brief as Amicus Curiae in support of Plaintiffs. NMFOG's primary concerns are the same as those expressed by Plaintiffs, namely, that requiring the identity of the undisclosed principal can divulge the motives behind the request in violation of the IPRA, and not to apply agency principles, will discourage the press and public from making requests "on behalf of their organizations."

{6} We hold that the district court did not err in any regard. Plaintiffs lacked standing to bring the action, and the court did not err in dismissing the action with prejudice. We discuss the first three issues on appeal together under the subject of standing and then turn to the fourth issue, that of amendment.

I. Standard of Review

{7} All issues raised are ones of law involving statutory interpretation and application of law to facts, and we review the issues de novo. See Sonic Indus. v. State, 2006-NMSC-038, ¶ 7, 140 N.M. 212, 141 P.3d 1266 (stating that "interpretation of phrases within a statute is a question of law that is reviewed de novo"); N.M. Right to Choose/NARAL v. Johnson, 1999-NMSC-028, ¶ 7, 127 N.M. 654, 986 P.2d 450 ("Even when we review for an abuse of discretion, our review of the application of the law to the facts is conducted de novo." (internal quotation marks and citation omitted)); Hise v. City of Albuquerque, 2003-NMCA-015, ¶ 8, 133 N.M. 133, 61 P.3d 842 (filed 2002) (stating that when the issue involves misapplication of law to facts, our review is de novo).

II. Standing

{8} The issue at hand is essentially one of the standing aspects of jurisdiction, because the issue the parties address is whether there exists any legal permission or authority for Plaintiffs to sue under the IPRA. See ACLU of N.M. v. City of Albuquerque, 2008-NMSC-045, ¶ 9 n. 1, 144 N.M. 471, 188 P.3d 1222 ("When a statute creates a cause of action and designates who may sue, the issue of standing becomes interwoven with that of subject matter jurisdiction. Standing then becomes a jurisdictional prerequisite to an action." (internal quotation marks and citation omitted)).

{9} Plaintiffs' arguments stem primarily from their view of the purposes and policies of the IPRA and from their views that (1) there is not and should not be any prohibition against an agent acting on behalf of an undisclosed principal at the IPRA request stage, and (2) there is not and should not be any prohibition against an undisclosed principal filing an IPRA enforcement action after records requested by the undisclosed principal's agent are not supplied. Defendants' arguments to the contrary essentially stem from the language of the IPRA and from federal case law on standing that has developed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (2002) (amended 2007).

A. The Language of the IPRA

{10} The request procedure under Section 14-2-8(A) and (C) of the IPRA is triggered when a written request for public records is submitted, and the person seeking to access the records provides its, his, or her name, address, and telephone number. The enforcement procedure under Section 14-2-12(A)(2) permits an action by "a person whose written request has been denied." Other than the person whose written request has been denied, only the state's attorney general or the district attorney in the county of jurisdiction is permitted to bring an enforcement action. Section 14-2-12(A)(1). Under Section 14-2-8(C), "no person requesting records shall be required to state the reason for inspecting the records."

{11} The "requester" or the "person requesting" records is given the right to pursue relief under the IPRA. See § 14-2-10 ("The requester may deem the request denied and may pursue the remedies available pursuant to the IPRA if the custodian does not permit the records to be inspected in a reasonable period of time."); § 14-2-11(A) (authorizing "the person requesting the public records to pursue the remedies provided in the IPRA" if the custodian does not timely permit inspection); § 14-2-11(B), (C) (requiring the custodian to provide the requester with a written explanation of the denial of a request, and permitting the requester to seek damages if this is not done). Further, Section 14-2-12(D) permits recovery of "damages, costs and reasonable attorney fees to any person whose written request has been denied and is successful" in an enforcement action. Plaintiffs present several arguable rationales to support their view that the foregoing language does not preclude an undisclosed principal from suing when its agent's request is unfulfilled. We set those rationales out.

B. Plaintiffs' Various Arguments
1. Plaintiffs' Argument on Agency

{12} Starting from the undisputed facts that the Association was the Marshall law firm's client and the law firm was acting as the Association's agent, Plaintiffs argue that the common law of agency is the controlling avenue for decision. Plaintiffs cite numerous authorities for the entrenched proposition that a person can use an agent, including an attorney, for any lawful purpose to act for the principal or client. Plaintiffs rely particularly on cases holding that a person can use an agent to...

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