State ex rel. Toomey v. City of Truth or Consequences

Decision Date26 July 2012
Docket NumberNo. 30,795.,30,795.
Citation287 P.3d 364
PartiesSTATE of New Mexico ex rel. Deborah TOOMEY, an individual, Plaintiff–Appellant, v. CITY OF TRUTH OR CONSEQUENCES, Mary Penner, Sierra Community Council, and Jay Hopkins, Defendants–Appellees.
CourtCourt of Appeals of New Mexico


Deborah Toomey, Albuquerque, NM, Pro Se Appellant.

Jaime F. Rubin, City Attorney, Truth or Consequences, NM, for Appellee.

Randolph H. Barnhouse, Luebben Johnson & Barnhouse LLP, Los Ranchos de Albuquerque, NM, for Amicus Curiae New Mexico Foundation for Open Government.

Randall D. Van Vleck, New Mexico Municipal League, Inc., Santa Fe, NM, Charles Rennick, LLC, Charles Rennick, Santa Fe, NM, for Amicus Curiae New Mexico Municipal League, Inc.


VANZI, Judge.

{1} Plaintiff Deborah Toomey appeals from the district court's ruling that she is not entitled to certain DVD recordings she requested under the Inspection of Public Records Act (IPRA), NMSA 1978, §§ 14–2–1 to –12 (1947, as amended through 2011). The district court found that the Sierra Community Council, Inc. (SCC), a non-profit corporation that operates a public access cable channel under contract with the City of Truth or Consequences (the City), was not acting on behalf of the City and, therefore, the requested records were not public records subject to IPRA. We reverse.


{2} In 2007, the City enacted Ordinance No. 577 (Ordinance), in which the City granted Baja Broadband Operating Company, LLC (Baja) a franchise to operate a cable system within the City limits. Among other things, the Ordinance required Baja to provide the City with one channel for noncommercial Public, Educational, and Governmental (PEG) use. In turn, the City agreed to be responsible for management of the PEG channel and to adopt rules, regulations, and procedures for access channel use. In order to support the PEG channel, Baja provides the City an annual grant of $3 per subscriber to the cable network.

{3} Approximately one year after the Ordinance was enacted, the City entered into a contract (operating agreement) with SCC, designating it the “cable access management organization” for the PEG channel. The City agreed to provide funding to SCC to support the PEG channel through the dedicated portion of the franchise fees as well as equipment and, if available, physical space. In exchange, SCC agreed to operate the channel for “public/community access programmingpurposes” and further agreed to produce any programming the City required for a public purpose at no cost to the City. The operating agreement identified SCC as an independent contractor and stated that no principal/agent or employer/employee relationship existed between SCC and the City.

{4} Thereafter, the City entered into a lease agreement (lease) with SCC for the basement of the civic center. The lease provided that the premises would be occupied by the Sierra Community Council Public Access Cable Project for use as a public access television center at the cost of $1 per year. Jay Hopkins, one of the signatories on the lease, was identified as the SCC Public Access Cable Project Director. By at least early September 2009, Hopkins attended the City Commission's semi-monthly meetings. Using a video recorder purchased by the City for SCC, Hopkins recorded the meetings and then downloaded the recordings onto the SCC computer for replay on the PEG channel. The recordings remained on the computer until the next meeting was ready to be downloaded at which time the recording of the previous meeting was deleted.

{5} On November 2, 2009, Plaintiff submitted a public records request to the City Clerk (Clerk) seeking the recordings of three City Commission meetings and one city workshop on truck traffic that had been played on the PEG channel. Plaintiff provided four blank DVDs for the copies along with her request. The Clerk forwarded the request to Hopkins. Hopkins replied, [W]e are unable to fulfill the request” and advised the Clerk that Plaintiff was told she could tape the meetings from the PEG channel herself. Plaintiff wrote a detailed letter to the Clerk concerning Hopkins' reply to her request. In response, the Clerk sent Plaintiff a letter stating that there was nothing in the operating agreement that required the City to maintain recordings of the meetings and that, [t]herefore, there are no recordings of City Commission meetings kept by [SCC] or the City Clerk's Office. We are unable to fulfill your IPRA request.”

{6} Plaintiff filed a complaint against the City, the Clerk, SCC, and Hopkins, for production of public records, mandamus, damages, and for declaratory and injunctive relief pursuant to Section 14–2–12, IPRA's enforcement provision. The complaint alleged that SCC operated the PEG channel for the City under the City's control and discretion and, therefore, the recordings of the City meetings were public records. After a bench trial on the merits, the district court entered findings of fact and conclusions of law. The district court found that SCC was an independent contractor, not an agent of the City. The district court further found that, at the time of the request, one meeting was still on SCC's computer; however, it concluded that nothing in the operating agreement required SCC to create, maintain, or hold recordings of City meetings on behalf of the City. Therefore, the district court ruled that [n]o public record was created by virtue of Hopkins recording City meetings and SCC cablecasting those meetings.” This appeal followed.


{7} At the outset, we note that Plaintiff is proceeding pro se, and the City is the only defendant that filed an answer brief. Although Plaintiff's briefing is not without its flaws, the City's brief in this case is bereft of any argument on the relevant issues, leaving us without a coherent understanding of its position on appeal. For example, the City's brief fails to discuss IPRA, it fails to provide any legal analysis, and it fails to provide supporting authority for many of its assertions. We are therefore particularly grateful to amici for their assistance in this case. The New Mexico Foundation for Open Government (FOG) filed an amicus brief in support of Plaintiff, and the New Mexico Municipal League, Inc. (NMML) filed a brief as amicus curiae in support of the City.

{8} Plaintiff raises a number of issues on appeal. However, the dispositive question is whether SCC's recordings of the City meetings were made on behalf of the City so as to constitute public records within the meaning of IPRA. We begin with the standard of review and then turn to the statute at issue. Lastly, we address whether Plaintiff is entitled to a remedy under IPRA.

Standard of Review

{9} Our review requires us to interpret provisions of IPRA. “The meaning of language used in a statute is a question of law that we review de novo.” Cox v. N.M. Dep't of Pub. Safety, 2010–NMCA–096, ¶ 4, 148 N.M. 934, 242 P.3d 501 (internal quotation marks and citation omitted), cert. quashed,2011–NMCERT–006, 150 N.M. 765, 266 P.3d 634. When reviewing a district court's decision, this Court must give deference to the district court's factual determinations, but we review its conclusions of law de novo. Mem'l Med. Ctr., Inc. v. Tatsch Constr., Inc., 2000–NMSC–030, ¶ 20, 129 N.M. 677, 12 P.3d 431. Further, we construe IPRA in light of its purpose and interpret it “to mean what the Legislature intended it to mean, and to accomplish the ends sought to be accomplished by it.” San Juan Agric. Water Users Ass'n v. KNME–TV, 2011–NMSC–011, ¶ 14, 150 N.M. 64, 257 P.3d 884 (internal quotation marks and citation omitted). “In discerning the Legislature's intent, we are aided by classic canons of statutory construction, and we look first to the plain language of the statute, giving the words their ordinary meaning, unless the Legislature indicates a different one was intended.” City of Albuquerque v. Montoya, 2012–NMSC–007, ¶ 12, 274 P.3d 108 (alteration, internal quotation marks, and citation omitted).

SCC Was Acting on Behalf of the City

{10} As we have noted, the substantive issue in this case is whether a private actor that contracts with a governmental entity to perform a public function is subject to the provisions of IPRA. IPRA defines “public records” as

all documents, papers, letters, books, maps, tapes, photographs, recordings and other materials, regardless of physical form or characteristics, that are used, created, received, maintained or held by or on behalf of any public body and relate to public business, whether or not the records are required by law to be created or maintained.

Section 14–2–6(F) (emphasis added). IPRA's broad language defining public records is clear that, absent an express exemption from disclosure, public agencies must produce all records, even those held by or created by a private entity “on behalf of” the public agency. The “on behalf of” language, however, is not defined, and the statute does not indicate whether every purportedly public document created or held by a private entity comes within the ambit of IPRA or whether there are any limitations to production of requested records. See Merriam–Webster's Collegiate Dictionary 103 (10th ed.1996) (defining “on behalf of” as “in the interest of” or “as a representative of”). The Legislature has offered no guidance on the issue.

{11} Plaintiff's argument is primarily based on her view that SCC is an agent of the City and that, as an agent, SCC stands in the shoes of the City for purposes of IPRA. Plaintiff discusses general agency principles but provides no support for the assertion that IPRA's access provision explicitly reaches private entities such as SCC. The City, on the other hand, contends that because the operating agreement identified SCC as an independent contractor and because the City did not specifically require SCC to record the City meetings, neither the City nor SCC was subject to IPRA. The City cites no...

To continue reading

Request your trial
16 cases
  • Fortgang v. Woodland Park Zoo
    • United States
    • Washington Supreme Court
    • 12 d4 Janeiro d4 2017 Other states employ a test that is substantially similar. Toomey v. City of Truth or Consequences, 2012–NMCA–104, ¶¶ 16–26, 287 P.3d 364 (applying nine-factor "totality of the circumstances" test); Marks v. McKenzie High Sch. Fact – Finding Team, 319 Or. 451, 463–64, 878 P.2d 417 (199......
  • Rushton v. Dep't of Corr.
    • United States
    • Illinois Supreme Court
    • 19 d4 Dezembro d4 2019
    ...held that the "on behalf of" language included records held by private contractors who perform governmental functions. See Toomey , 287 P.3d at 367.¶ 38 In finding that the settlement agreements were subject to disclosure, the court relied on three factors. First, the court relied on the pl......
  • Edenburn v. New Mexico Dep't of Health
    • United States
    • Court of Appeals of New Mexico
    • 26 d2 Fevereiro d2 2013
    ...short, the tape is subject to inspection.” Guide, at 28; see State ex rel. Toomey v. City of Truth or Consequences, 2012–NMCA–104, ¶ 28, 287 P.3d 364. {25} To the extent DOH argues that the Legislature implicitly endorsed exemption of draft documents from public records by its failure to am......
  • New Mex. State Inv. Council v. Weinstein
    • United States
    • Court of Appeals of New Mexico
    • 28 d4 Abril d4 2016
    ...OMA's provisions broadly and their exceptions narrowly. Cf. State ex rel. Toomey v. City of Truth or Consequences, 2012–NMCA–104, ¶ 22, 287 P.3d 364 (“We emphasize, however, that [the] IPRA should be construed broadly to effectuate its purposes, and courts should avoid narrow definitions th......
  • Request a trial to view additional results

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