Sadly this is not only not an uncommon phenomena across the country but it is almost as if they are sharing the same unofficial “playbook.” In some instances their desperate attempts to cover up what they are doing as public servants are so absurd that few would believe the story to be true without the evidence.
Here begins the story of Albuquerque where I spent two weeks earlier this year at the height of the protests against the rash of officer-involved killings that sparked a United States Department of Justice investigation. This is a first in an ongoing series where I plan to continue making public records requests to determine what, if any, internal actions are taking place to curb the police violence as well as to educate the public on how they can make public records requests in their own states, including how to overcome the challenges you will likely come up against.
However, if there were an award for Public Records Clown, these city officials, from police, to the mayor, all the way to the district attorney, would be at the top of the list of nominees.
But this time – I have been gathering evidence.
As I write this series, I will also be placing those records, among other evidence, here on the pages of PINAC. We eventually plan to create a special public records database where readers can submit their own documents from their own states to maintain these records online in what we are calling the Open Records Project, a project I started years ago before I ended up in a coma for making public records requests.
[NOTE: We are working to challenge these abuses in court and need to raise funds for the actions. With a large number of small donations, we should be able to fund direct legal actions to uphold these rights and hold these agencies and officials to account. In the process, we will be training a citizen army, armed themselves however only with the law, and building a state-by-state network to both protect existing public records laws and to effectively use them to both educated and inform the public while empowering them to hold their officials accountable to them and under the law. So I encourage anyone who is concerned about the issues of lack of transparancy and lack of accountability in government, if they can, to contribute to PINAC using the link above. Small contributions by many people can add up. Read more about our plans here.]
This first episode of the Albuquerque series will include the tale of how it took three months for officials to find, determine if there was an exemption (but when you see the requested items you will see that is answered by the items themselves) and to email two records constituting two emails. I have to emphasize this for those who will be doing a double take at this point – for the production of two emails.
And not even smoking gun or controversial emails. In the public records law universe, these were perhaps the most non-controversial and undeniably non-exempt form of records imagineable.
The request was for records of … a public records request! That’s it.
I requested two email records: one was itself an earlier request for public records submitted by a local television news station (KRQE). The other was for the email sent to them by the city denying their request (The requests are provided at the bottom of this article). These two emails could have been produced with little effort in less than an hour. And according to the law – they should have been. Certainly New Mexico’s public records law required them to be provided, at the very latest, within three days – and even then, that was pushing the limit. But three months! Adding insult to injury – and nominating the Albuquerque Police Department and the City of Albuquerque for their Public Records Circus status – after three months they still couldn’t get it right. They only produced one of the two records!
A custodian receiving a written request shall permit the inspection immediately or as soon as is practicable under the circumstances, but not later than fifteen days after receiving a written request. If the inspection is not permitted within three business days, the custodian shall explain in writing when the records will be available for inspection or when the public body will respond to the request. The three-day period shall not begin until the written request is delivered to the office of the custodian.
(See NM Attorney General Compliance Guide below)
The language of the statute could not be less unambiguous. The word is “immediately” – and then if that is not possible under the circumstances it establishes a clear duty to respond, in a very particular way, no later than three days after the request was filed. None of this, it turns out, does the Albuquerque Police Department believe it is required to comply with. They routinely, as a matter of course, respond to all requests after waiting two to three days saying merely that they received the request and will spend up to fifteen days determining whether the records existed – and then will get back to the requestor as to what, then, may follow in terms of being provided or denied the requested records. But even the absolute limit at fifteen days does not appear to be a law, in the police department’s eyes, and it simply ignores that in most requests as well – in this case – taking three months to produce two emails for records from another public records request.
Given the clearness of the law and the simple and seemingly uncontroversial nature of the request – the deeper question turns out to be two-fold: why and what did they think they needed to hide by effectively denying (inordinate delays are a form of denial – even if in the end the agency or official relents and releases the record) this request for a prior public records request; and how did they think they would get away with this if it was challenged in court?
If you have not already taken a look – the request was made after the City and APD officially denied KRQE, a local television news station, the officer-worn camera videos from the James Boyd shooting last March. I did not request the same records – the videos (I was preparing a legal strategy to challenge what I, rightly, assumed would be the false exemption claimed – that there was an “ongoing investigation.”. NM law – like most states – does NOT provide such a “blanket” open-investigation exemption.) The videos requested were public records and by law had to be released “immediately” by the APD. (It would take about four months before the police finally did release videos from the scene – but while claiming to produce all such videos they have clearly, and intentionally, withheld the key videos from the incident.)
The tales from the Public Records Circus thus provide the evidence for criminal wrongdoing among City officials and Law Enforcement in Albuquerque. Yet unless citizens themselves litigate these matters, strategically and aggressively, in court – the law will not exist as those it is intended to place both limits and duties upon refuse to recognize and accept it as binding upon them.
Seeking answers to these questions raised in this response to a records request will provide an enormous insight into why local law enforcement agencies are literally getting away with murder and local government officials across the country are out of control. The class of “public officials,” deeming themselves to be a “political class” ruling over its “subjects,” does not live by the same laws that ordinary people do. They believe they “are” the law – and that the laws on the books do not apply to them. And more and more this point of view is being reinforced by the courts while the citizens remain inactive and thus find themselves losing that status and in the process actually becoming mere subjects. One cure to this disease is for people to learn about, and become empowered by the various state public records laws.
By definition this request was non-controversial as it sought a document that came from outside the department, a records request sent by a news station, with no secret among the public that it had been filed. So there was nothing tangeable to be gained by withholding – or hiding – this record.
While the second item, the email denying the request, did contain potentially controversial information – the false claim that a legal exemption that did not exist did exist made on the advice of public attorneys on behalf of law enforcement; but still we are left asking: who were they hiding this from? Again by definition they had already made that “public” when they provided it, not as a public record, but as the response to a public records request. The claimed exemption could not withstand critical scrutiny – but they had already provided it to the media – at least the one entity that had made the request in the first place.
One is thus left to wonder if it isn’t simply their outright, utter, and absolute contempt for a law that imposes duties on them and empowers the citizenry with rights to directly participate and effectively hold them accountable to the public and under the law that is behind this seemingly absurd refusal to comply with the most simple, seemingly inconsequential, public records request. Was it denied because they simply refuse to recognize that the law applies to them and they are determined to demonstrate, to the contrary, that in practice they are allowed to act as if they are above the law?
Clearly it should not take three months to produce a public record. Particularly when the law is clear that it must be produced “immediately” – and adds that if this is not done within three days of receipt of the request – this needs to be addressed in writing stating why that delay has occurred and a date, within fifteen days at the latest, when the records will be produced.
The truth is that this request and how it was handled reveals that the City of Albuquerque and its Police Department have little respect for the public and even less for the law. Because in fact this is the law – and yet those entrusted not only to enforce that law, but to carry firearms in the process, do not feel compelled to themselves comply with it. If this particular public records circus tale does not on its own convince you of this – then as you continue to read how the City and APD responded to later requests I assure you, in time, you will reach that conclusion.
In addition to the above tale about my first attempted public records request in New Mexico, I will share the adventures of PINAC that followed in our second attempt to obtain a set of public records from the Albuquerque Police Department. This will be told in episode 2 of “The Public Records Circus” where the tales get more absurd. Stay tuned.
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4-9-14.1 to APD 6-10-14 FOLLOW-UP – Public Records Request: KRQE Boyd Videos Request and Denial Records
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4-9-14.1 APD PRODUCTION (4-1-14 Denial to 3-17-14 IPRA Request – KRQE Boyd Videos)
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NM Attorney General Inspection of Public Records Act Compliance Guide
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