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STATE OF NEW MEXICO COUNTY OF SIERRA SEVENTH JUDICIAL DISTRICT COURT No.: D-0721-CV-2009-00098 Judge: WILLIAM SANCHEZ

S T I~ TE 0 F N E8 M E X I C SEYENTH JUDIC1AL DISTRICT COURT FILED

'CO'URT CLERK

STATE OF NEW MEXICO, ex. reI. DEBORAH TOOMEY, Individually, Petitioner, vs.

BY_----~EP

CITY OF TRUTH or CONSEQUENCES, a Municipality; LORI MONTGOMERY, Individually, and in her Official Capacity as Mayor; JERRY D. STAGNER, Individually, and in his Official Capacity as Mayor Pro-Tern; FRED TORRES, Individually, and in his Official Capacity of City Commissioner; EVELYN RENFRO, Individually, and in her Official Capacity of City Commissioner; STEVE GREEN, Individually, and in his Official Capacity of City Commissioner; JAIME AGUILERA, Individually, and in his Official Capacity of City Manager; MARY PENNER, Individually, and in her Official Capacity of City Clerk and Custodian of Records; BERNADINE GARCIA, Individually, and in her Official Capacity as Utility Billing Supervisor; DISTRICT ATTORNEY FOR SIERRA COUNTY, Respondents.

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RESPONDENTS' MOTION TO DISMISS

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COME NOW the Respondents (with the exception of the District Attorne ), and hereby move that this matter be dismissed pursuant to the provisions of S.C.R.A. 1-012(b)(6), and as grounds therefor would show unto the Court as follows: 1. In reading the Petitioner's Reply, it is clear that she is under he

assumption that ADG Software could automatically create daily and monthly au it reports and is capable of automated redaction. (See paragraph 2 on front page, paragraphs 2, 7 and 8 under Discussion). 2. After reviewing the Reply, the Respondent Bernadine Garcia contac ed the American Data Group (ADG) for clarification. 3. Attached hereto as Exhibit "A" is a letter dated December 1, 2009 fr m ADG's representative. 4. As per enumerated paragraphs 2 and 4 on the second page, there are automatic auditing reports created. 5. The requested information could only be created in the burdensome a d costly manner outlined on pages 4-5 of our October 21,2009 response. 6. In the absence of the documents being created, the requested audit I gs
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do not exist.
7. The Inspection of Public Records Act does not contemplate creating new documents to satisfy a request. Rather, the IPRA only contemplates public records

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that are already "made or received by any agency in pursuant of law or connection with the transaction of public business." See 14-3-2(c).

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8. As noted, this is not a case where the City has public records which it is refusing to produce. Rather, this is a situation where the Petitioner is asking t e

City to create over 50,000 pages of new documents. WHEREFORE, the City moves that this(l\/e~~e dismissed.
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JAIMIE F. RUBIN, Esq. City-Attorney Jaime F. Rubin, LLC P.O. Drawer 151 Truth or Consequences, NM 8790 575.894.3031 Fax: 575.894.328 CERTIFICATE OF MAILING The undersigned hereby certifies that a copy of the foregoi g RESPONDENTS' MOTION TO DISMISS will be hand delivered to Debor Toomey, Petitioner, at 415 W. Riverside Dr., Truth or Consequences, N Mexico, 87901, on the 28th day of December, 2009. ./\
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AMERICAN DATA GROUP

5730 E Otero Ave Suite 300 Centennial, CO 80112-6600 Telephone (303) 741-571 I FAX (303) 741-4966

December 1, 2009

Bema Garcia City of Truth or Consequences 505 Sims St Truth or Consequences, NM 87901

Dear Ms Garcia, Per your request, below are my responses to the "Petitioner's Reply to Defendants ...,.....Response Complaint-To. Enforce Provisions of the Public Records Act'; .. It.is.my goal ---,--.--~-To. to clarify items that may not be correct or misleading. 1) Any information provided to the defendant by any ADG representative other than myself, may be incorrect. The City is using the Progress Relational Database and 4 GL application since purchased in February of 2001. The City has not yet the migration to our new browser based application. The Progress database may be only accessed in two ways a) via the Progress Client or b) an OnBC connection developed by Merant to interface with the Progress database. The OnBC client must be installed on the client workstation wishing to access the database; whereas, the Progress client may be accessed from any workstation. To use the ODBC client, you must know SQL programming or use a 3rd party software application which will interface with the ODBC client which is connected to the database. Microsoft Excel and Access may accomplish this. As far as I know, the ODBC driver has not been installed on any city workstations. The ODBC connection would also provide complete access to all data - which could present a security risk unless special access rights are granted by user id. The Progress Client allows access to the Progress Editor which allows us to write programs and access the database. The workstation icons to access the ADG applications have a parameter set that only allows them to run existing programs. The Progress Report Writer - Results - was installed on your system. I am sure no current employees know how to access or use it.

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EXHIBIT

"A"

2) Regarding Audit Logs. The existing system may create audit records for selected files changed in the file maintenance process if the option is turned. In the accounting system it is the employee master, vendor master, and PIR type code master. In utility billing the files are: Customer Master. Location Master, and Services. In the company master maintenance program you can see which files are turned on for file auditing. There are no automatic auditing reports created. You may run the audit report based on a number of parameters (determined by which application you are running it for). Generally you may select a date range, which of the master files to include, a single or all operators, and for a certain key value of the file being selected. For example the Customer Master in utility billing, you may select only account# 100. The audit file will contain changes to the tax id, credit card, and bank info fields. The values are not masked on the audit report. 3) Tax ill, Credit Card, and Banking Data fields. The fields are not stored as encrypted in the Progress database. These values are stored encrypted in the new application that you are not using yet. These values are masked when displaying in an inquiry program or printing on a report (excluding the audit log). A report .- -----'"~writet or ODBC-connectionwQuld display the actual values which may be a security concern. 4) In the System Administration Menu, there is a program which allows you to select a single master, select any or all fields of the master file, add some selection criteria, and output to a csv formatted file for use by a spreadsheet. I'm sure no employees at the city know how to use this program. It is located on the System Administration Menu, and Mr. Hupp is probably the only one with access to it. I hope this clarifies some of the issues brought up in the document, and some of the capabilities of the system. If you have any other questions, or need training on any of the above mentioned features, please feel free to contact me. Sincerely, Mark J. Jost MJJ:ms