STATE OF NEW MEXICO SEVENTH JUDICIAL DISTRICT COUNTY OF SIERRA STATE OF NEW MEXICO, ex rel.

DEBORAH TOOMEY, an individual, Plaintiff, No. D-0721-CV2009-98 vs. HON. WILLIAM SANCHEZ CITY OF TRUTH OR CONSEQUENCES, et al., Defendants.

MOTION FOR SUMMARY JUDGMENT Plaintiff Deborah Toomey hereby moves for summary judgment of her complaint for enforcement of the Inspection of Public Records Act (IPRA) on grounds that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. NMRA 1-056. This motion is supported by the following Memorandum of Points and Authorities and the pleadings and papers on file, and any oral argument the Court allows at hearing of the motion.

MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98

TABLE OF CONTENTS INTRODUCTION....................................................................................................1 SUMMARY OF PROCEEDINGS .........................................................................3 STATEMENT OF MATERIAL FACTS TO WHICH THERE IS NO GENUINE DISPUTE ..................................................................11 ARGUMENT ..........................................................................................................18 A. B. Fundamental Right to Inspect Public Records ............................................18 Public Records with Reasonable Particularity ............................................20 1. Redacting exempt information from a nonexempt public record is not the creation of a new record. ...................................................................25 Providing a subset of records from a database is not the creation of a new record. ................................................................................................26

2.

C. D.

The Cost of Public Records .....................................................................30 Denial and Enforcement ..............................................................................35

CONCLUSION.......................................................................................................38

MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98

Page i

TABLE OF AUTHORITIES New Mexico Cases Audette and Toomey v. City of Truth or Consequences, Sierra County Cause No. CV-2009-159 ..............................................................21 Bd. of Commrs of Doa Ana County v. Las Cruces Sun-News, 2003-NMCA-102, 134 N.M. 283, 76 P.3d 36 .................................. 19, 20, 35, 37 City of Farmington v. The Daily Times, 2009-NMCA-057, 146 N.M. 349, 210 P.3d 246 ............................................3, 20 Foy v. New Mexico Educational Retirement Board, County of Bernalillo Cause No. D 202 CV 2009 1587 .......................................18 San Juan Agric. Water Users Assn v. KNME-TV, 2011-NMSC-011, __ N.M. __, __ P.3d .................................................... 3, 36, 37 State ex rel. Newsome v. Alarid, 90 N.M. 790, 797, 568 P.2d 1236, 1243 (1977) ............................... 20, 26, 34, 37 Statutes and Rules 14-2-1 .................................................................................................... 18, 20, 29, 30 14-2-10 ........................................................................................................ 13, 16, 36 14-2-11 ............................................................................................................. passim 14-2-12 .............................................................................................................. 35, 38 14-2-5 ............................................................................................................... passim 14-2-6 ............................................................................................................... passim 14-2-7 ................................................................................................................ 17, 31 14-2-8 ............................................................................................................... passim 14-2-9 ............................................................................................................... passim 14-3-1 -25 .................................................................................................................29 14-3-2 .......................................................................................................................23 3-14-12 .....................................................................................................................17 Other Authorities City Resolution 07-10/11 .................................................................................. 33, 34 Federal Privacy Act of 1974, 5 USC 552a...........................................................1, 2 Office of the New Mexico Attorney General, Inspection of Public Records Act Compliance Guide (6th ed. 2009) ........... 28, 31 http://dictionary.reference.com/browse/maintain ....................................................27 http://en.wikipedia.org/wiki/.csv .............................................................................29
MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98

Page ii

http://www.thefreedictionary.com/compile .............................................................28 http://www.thefreedictionary.com/create ................................................................25 http://www.thefreedictionary.com/document ..........................................................24 http://www.thefreedictionary.com/generate ............................................................25 http://www.webopedia.com/TERM/A/audit_trail.html ...........................................11

MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98

Page iii

MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Over several months, Plaintiff watched the misrepresentation by Defendants of the safety of social security numbers (hereinafter SSN) required by the Utility Department in violation of the Federal Privacy Act of 1974, 5 USC 552a, claiming the SSN were on cards locked in a vault every night, while hiding the existence of a computer database containing SSN. Knowing that the audit log is the first line of defense against information theft, especially from the inside job, Plaintiff requested per IPRA to inspect the Utility Department audit logs on three separate occasions: May 21, May 28, and July 9, 2008. The request for Utility Department audit log that details the date, time, whom accessed and what record was accessed for all personally identifiable information was reasonably particular for Defendants to retrieve and provide what turned out to be the ADG Utility Billing System audit log and the Application Audit Log. Defendants first IPRA response produced a memo that was nonresponsive to the request to inspect the audit logs. Defendants second IPRA response was a demand for $15,000 before inspection of the audit logs would be allowed and a claim of burdensome. Defendants third IPRA response was a request for
MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98

Page 1

additional time. None of the IPRA responses produced records responsive to the IPRA requests, claimed the audit logs did not exist nor claimed an exception. Additionally, none of the responses were statutorily compliant with the procedures for denied requests. 14-2-11. Meanwhile, City staff testified, during City Commission meetings, the Federal Privacy Act was only intended and never enacted. In response to a local news reporters questioning Defendants to justify the demand for $15,000, City changed their reasoning and claimed proprietary software needed to be rewritten. After diligently pursuing compliance to IPRA and the production of the audit logs for more than a year, an IPRA enforcement action was filed in July 2009. On December 5, 2011, the ADG Utility Billing System audit log was disclosed under the supervision of Plaintiffs expert witness Gouthum Karadi. The application audit log was not disclosed. The May 21, 2008, IPRA request was the first Plaintiff submitted to a public body and, in many respects, the first IPRA response by Defendants. What was novel has now become common-place in the City of Truth or Consequences as numerous citizens and local news reporters regularly utilize IPRA to protect the public from having to rely solely on the representations of public officials that they have acted appropriately. City of Farmington v. The Daily Times, 2009-NMCAMOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98

Page 2

057, 17, 146 N.M. 349, 210 P.3d 246. Time-and-again it is discovered that they have not acted appropriately in the City of Truth or Consequences. Unfortunately, however, in order to thwart accountability and consequences, Defendants fail to disclose requested public records, fail to disclose a public record does not exist, or delay to such an extent that the information is no longer timely. In order for government to truly be of the people and by the people, and not just for the people, our citizens must be able to know what their own public servants are doing in their name. San Juan Agric. Water Users Assn v. KNME-TV, 2011-NMSC-011, 16, __ N.M. __, __ P.3d. There has been no truth or consequences in Truth or Consequences. Plaintiff prays there will be both. SUMMARY OF PROCEEDINGS Plaintiff filed a Petition for Writ of Mandamus in July 2009 to enforce IPRA (hereinafter Petition). Plaintiff claimed three IPRA violations for her requests of May 21, 2008, for the audit trail, May 28, 2008, for the audit log, and July 9, 2008, for the computer audit log and audit log for application cards. The Court ordered the Defendants to answer the Petition as if it were a complaint to enforce IPRA in August 2009.

MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98

Page 3

Defendants Response to Complaint to Enforce Provisions of the Public Records Act was filed on October 21, 2009 (hereinafter Response to Complaint). Defendants claimed the ADG Utility Billing System audit log does not exist, and if it did exist, Defendants further asserted it would have been burdensome and a deposit of $15,000 for copying fees was reasonable. Petitioners Reply to Defendants Response to Complaint to Enforce Provisions of the Public Records Act was filed on November 4, 2009 (hereinafter Reply to Response to Complaint). Plaintiff claimed the audit logs do exist, the ADG Utility Billing System is capable of providing the records electronically, demand for $15,000 was to avoid production of public records, and Defendants met the IPRA requests with fraud, harassment, perjury and tampering with the public record. Respondents Motion to Dismiss was filed on December 28, 2009 (hereinafter Motion to Dismiss). Once again, Defendants claimed the ADG Utility Billing System audit log does not exist and to produce would require the City to create over 50,000 pages of new documents. A status conference was held on December 29, 2009, with Hon. William Sanchez presiding. A verbal order was issued to finish the Motion cycle and the written motions would be taken into consideration.
MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98

Page 4

Petitioners Reply to Defendants Motion to Dismiss was filed on December 31, 2009 (hereinafter Response to Motion to Dismiss). Plaintiff claimed the audit logs do exist, the partial printout of a database is not the creation of a new record, burdensome is not a basis for denial, requiring payment prior to inspection is not allowed under IPRA, and the $15,000 demand was and remains nothing more than an imposition of a prohibitive fee to avoid complying with IPRA. Citys Reply to Petitioners Reply to Respondents Motion to Dismiss was filed on January 7, 2010 (hereinafter Reply to Response to Motion to Dismiss). Defendants again claim there is simply no audit log which exists and the ADG Utility Billing System audit log could only be created in the burdensome and costly manner outlined by [Bob Hupp]. Petitioners Motion to Strike Citys Reply to Petitioners Reply to Respondents Motion to Dismiss was filed on January 15, 2010 (hereinafter Motion to Strike). Plaintiff complains the Reply to Response to Motion to Dismiss should be stricken for raising new arguments that have never been aired before. Petitioners Motion for Judgment on the Pleadings, Damages, Declaratory and Injunctive Relief was filed on January 19, 2010 (hereinafter Motion for
MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98

Page 5

Judgment). Plaintiff claims the audit logs exist, a computer database is a public record subject to IPRA, IPRA excludes charging for redaction, and burdensome is not a basis for denial. Citys Response to Petitioners Motion for Judgment on the Pleadings was filed on January 20, 2010 (hereinafter Response to Motion for Judgment). Again, Defendants claim the requested documents do not exist. Citys Response to Motion to Strike Citys Reply was filed on January 20, 2010 (hereinafter Response to Motion to Strike). Defendants claimed no new issues were raised and further claimed the requested documents simply do not exist, and never have. On November 1, 2011, Plaintiff filed a Certificate of Readiness for Trial, Request for Setting and List of Trial Witnesses. Notice of Trial for November 28, 2011, was filed by the Court on November 7, 2011. Upon request from Defendants, the Court filed an Amended Notice of Hearing for pending motions for November 28, 2011. Supplement to Reply to Defendants Motion to Dismiss was filed on November 14, 2011 (hereinafter Supplement). The Supplement was filed to include a memo from Berna Garcia, Utility Office Manager and named-defendant, in response to the Attorney General Request of June 2009 which declared the
MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98

Page 6

audit log exists and it is an electronic record. Although Defendants had previously utilized as exhibits all other documents created in June 2009 in response to the Attorney General Request, Defendants failed to disclose this one document, which confirmed that an audit log exists as an electronic record. Plaintiff discovered it through an IPRA request to the Attorney General of New Mexico and disclosed it to the Court. In addition, the Supplement included an Affidavit of Gouthum Karadi1 filed on November 14, 2011 (hereinafter Affidavit of Karadi) to declare his technical expertise and that utilizing available technology would require no more than 30 minutes to retrieve the ADG Utility Billing System audit log. Citys Response to Plaintiffs Supplement was filed on November 18, 2011 (hereinafter Response to Supplement). Although the supplemented evidence was a document created by Defendants, and thereby already in the possession of City, Defendants objected to the inclusion of new evidence and Plaintiff disclosing it to the Court.

Mr. Karadi was listed as an expert witness in Plaintiffs List of Trial Witnesses filed on November 1, 2011.
MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 7

The Affidavit of Berna Garcia2 dated November 10, 2011, filed with the Response to Supplement on November 18, 2011 (hereinafter Garcia Affidavit) explain[s] in detail the City Utility Office has and utilizes [an] Application Audit Log [and] System Master Audit Log. The Garcia Affidavit also introduces a new defense that the System Master Audit Log is just not the type of audit log Ms. Toomey is wishing to view. The Garcia Affidavit does not opine whether the Application Audit Log is or is not the audit log for the cards requested under IPRA. The Affidavit of Mark Jost,3 President of ADG, dated November 11, 2011, filed with the Response to Supplement on November 18, 2011 (hereinafter 11/11/11 Jost Affidavit) not only attacks Mr. Karadi as a technical expert, but also claims the data [Ms. Toomey] is requesting is not even available.

Although not titled as affidavit, it is a written and signed statement by named-defendant and verifier of the Response to Complaint, Bernadine Garcia, in response to pleadings. As such, this signed statement by Ms. Garcia should be construed by the Court as a sworn affidavit affirmed by the signatory under penalty of perjury under the laws of the State of New Mexico to be true and correct. 3 Although not titled as affidavit, it is a written and signed statement in response to pleadings. Mr. Jost has specifically written and signed a statement for every pleading Defendants have filed in this enforcement action. Mr. Jost should be construed by this Court as an undeclared expert witness since he continues to act in such a capacity. As such, his signed statements written in response to litigation should be construed by this Court as a sworn affidavit affirmed by the signatory under penalty of perjury under the laws of the State of New Mexico to be true and correct.
MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 8

A hearing on the pending motions was held on November 28, 2011, with Hon. William Sanchez presiding. Defendants once again claimed the audit log does not exist. Plaintiff once again contended the audit logs existed, and the Garcia Affidavit affirms two audit logs exist. In addition, Plaintiff informs the Court that a new defense has appeared: the Utility Department audit logs described by the Garcia Affidavit are supposedly not the audit logs Plaintiff wanted. Plaintiff argued that the Utility Department audit logs for the computer database and application cards is not only reasonably particular to produce the two Utility Department audit logs the Garcia Affidavit identified as Application Audit Log and System Master Audit Log, but based upon the written description in the Garcia Affidavit, these audit logs were exactly what was requested under IPRA on May 21, May 28 and July 9, 2008. The Court ordered Defendants to allow access to Plaintiffs expert witness Mr. Karadi to determine whether these audit logs existed and to produce said audit logs if they existed. The Court also noted a Request for Setting of Status Conference should be filed as soon as the issue was determined, but to ensure that Mr. Karadi was granted access no later than December 16, 2011.

MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98

Page 9

Plaintiff and expert witness Mr. Karadi met with City Manager Juan Fuentes and City IT Specialist Bob Hupp at the City Utility Department on December 5, 2011, for Mr. Karadi to ascertain if the audit logs existed and, if so, to disclose. On December 6, 2011, a Request for Setting of Status Conference was filed by Plaintiff. Second Affidavit of Gouthum Karadi was filed on January 6, 2012 (hereinafter Second Karadi Affidavit) to affirm his findings and conclusions of December 5, 2011. Mr. Karadi affirmed the Utility Department System Master Audit Log exists, took three (3) minutes to retrieve and copy onto a USB drive in electronic form and that Citys claim it would take 1,300 man hours to produce and redact were knowingly false. Affidavit of Ronald Fenn was filed on January 11, 2012 (hereinafter Fenn Affidavit). Mr. Fenn affirms City has disclosed in response to a September 2011 IPRA request that redacting information from the ADG Utility Billing System database is the creation of a new record and, therefore, City will not provide. Mr. Fenn also affirms numerous tactics the City uses contrary to IPRA in failing to properly respond to his requests, and that City regularly intimidates and harasses as a method to dissuade an informed citizenry.

MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98

Page 10

Affidavit of Bradley Grower was filed on January 11, 2012 (hereinafter Grower Affidavit). Mr. Grower affirms City claimed no such documents exist to IPRA requests when said records did exist and were finally produced after pressure from the mainstream media. Mr. Grower further affirms that he was harassed and intimidated with multiple threats of arrest for his IPRA requests regarding the illegal gun sale by Citys Chief of Police. Affidavit of Deborah Toomey was filed on January 13, 2012 (hereinafter Toomey Affidavit). Plaintiff affirms and exhibits the true context of the Response to Complaint, Exhibit 4, and pattern of abuse by City in failing to properly respond to IPRA requests. STATEMENT OF MATERIAL FACTS TO WHICH THERE IS NO GENUINE DISPUTE 1. On May 21, 2008, Plaintiff requested per IPRA for the audit trail4 as

to when and to whom it has disclosed personal records. Petition, p. 4 19 and Ex. E; Reply to Motion to Dismiss, p. 7 18. 2. Custodian of Records telephoned the afternoon of May 21, 2008,

requesting clarification, and Plaintiff responded: For the last five years, I want the Utility Department audit log that details the date, time, whom accessed and
4

The term audit trail is synonymous with the term audit log. http://www.webopedia.com/TERM/A/audit_trail.html
MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 11

what record was accessed for all personally identifiable information. Petition, Ex. H-1, 1. 3. On May 28, 2008, City responds to the May 21, 2008, IPRA request

with a memo regarding determining a deposit. The memo was not the requested audit logs. Petition, p. 6 24 and Ex. G. 4. Inspection was not allowed within three business days of the May 21,

2008, IPRA request. Custodian of Records failed to explain in writing [within the three business days] when the records will be available for inspection or when the public body will respond to the request. 14-2-8 (D). 5. Custodian of Records did not provide a written explanation of denial

or produce the records for inspection within 15 days to the May 21, 2008, IPRA request. Damages shall be awarded up to $100 per day from June 5, 2008, until the production of the record on December 5, 2011, 1,278 days. Petition 37; 14-2-11 (C). 6. On May 28, 2008, Plaintiff again requested under IPRA: For the last

five years, I want the Utility Department audit log that details the date, time, whom accessed and what record was accessed for all personally identifiable information. Petition, pg. 6, 25; Petition, Ex. H-1, 2.

MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98

Page 12

7.

On May 30, 2008, City refuses to comply with the IPRA request of

May 28, 2008, for the audit log until a deposit of $15,000 is received from you to cover the expense of printing the report for your inspection. In addition, City claims the request is burdensome. Petition, pg. 6, 27, Petition, Ex. I, 1. 14-2-10. 8. City Commissioners and City Attorney are copied on the May 30,

2008, IPRA response demanding $15,000 prior to allowing inspection of public records under IPRA. Petition, Ex. I. 9. City did not provide Plaintiff with a written explanation of valid

denial nor the production of the records within 15 days for the May 28, 2008, IPRA request. Damages shall be awarded up to $100 per day from June 12, 2008, until the production of the record on December 5, 2011, a total of 1,271 days. Petition, 37. 14-2-11 (C). 10. On July 9, 2008, Plaintiff informs Defendants that the $15,000

demand is unreasonable, a direct attempt to deny [Plaintiff] access to a public record and is an attempt[] by the City to dissuade an informed citizenry with unreasonable charges. Petition, Ex. J-2 2-3. 11. On July 9, 2008, Plaintiff again requests under IPRA the computer

database audit log either as an electronic copy or to visually inspect. Petition, Ex. J-1 3-7 and J-2 2, 4-6.
MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98

Page 13

12.

Plaintiff clarifies on July 9, 2008, an audit log for the computer

database and an audit log for the application cards exist separately, and both need to be provided for inspection under IPRA. Petition, Ex. J-2, 5-6. 13. City Commissioners and City Attorney are copied on the July 9, 2008,

IPRA request and letter protesting the demand for $15,000 and attempt by City to dissuade an informed citizenry through demand for fees to inspect public records. Petition, Ex J-2. 14. On July 14, 2008, City responded to Request for documents dated

7/9/08. City requested additional time to provide the printout of the computer audit log. The response fails to address the audit log for the application cards also requested on July 9, 2008. Petition, Ex. K, 5. 15. Inspection was not allowed within three business days of the July 9,

2008, IPRA request. City failed to explain in writing [within the three business days] when the records will be available for inspection or when the public body will respond to the request. 14-2-8 (D). 16. City Commissioners and City Attorney are copied on the July 14,

2008, IPRA response requesting additional time to respond to the request for documents dated 7/9/08. Petition, Ex. K.

MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98

Page 14

17.

City did not provide Plaintiff with a written explanation of denial or

disclose the records requested under IPRA on July 9, 2009 within 15 days. Damages shall be awarded up to $100 per day from July 24, 2008, until disclosure on December 5, 2011, a total of 1,229 days. Petition, 37; 14-2-11 (C). 18. On November 18, 2011, Defendants filed an affidavit dated

November 10, 2011, from Berna Garcia. Ms. Garcia states the City has and utilizes Application Audit Log. It is further described that this log keeps the date, the time, the customers name, the reason for removing the card from file and initials of the person that made the inquiry. Garcia Affidavit. 19. On December 5, 2011, City disclosed they are unaware of an

application audit log, and said log was not produced for inspection. Second Karadi Affidavit, 14. 20. The application audit log does not exist contrary to Garcia Affidavit

that City has and utilizes said audit log to protect personally identifiable information located on the application cards locked in a vault every night. Toomey Affidavit, 2-8. 21. Citys failure to reply to the July 9, 2008, IPRA request for the audit

log for the [application] cards locked in a vault every night that no such record exists deprived Plaintiff the fundamental right to obtain accurate, complete and
MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98

Page 15

timely information that City was not protecting SSN through auditing of access to the application cards. Petition, 38; Toomey Affidavit, 4-5, 8; 14-2-5. 22. Defendants failure to disclose the requested ADG Utility Billing

System audit log thwarted Plaintiffs right and ability to obtain accurate, complete and timely information about governmental activities. Toomey Affidavit, 4; 14-2-5. 23. On December 5, 2011, the ADG Utility Billing System audit log was

disclosed by City. The retrieval, redaction and download of the ADG Utility Billing System audit log was not burdensome. Second Karadi Affidavit, 7-9, 11, 22, 24-28; 14-2-10. 24. CSV file format is an existing file format of the ADG Utility Billing

System software. Providing the ADG Utility Billing System audit log in a CSV file format did not require rewriting the software, installation of any additional components or ODBC connectors, and did not require 1,366 hours to produce. Second Karadi Affidavit, 7-9, 11, 22, 24-28. 25. The audit log is an automated subset of the ADG Utility Billing

System and are public records that are used, created, received, maintained or held by or on behalf of any public body and relate to public business. Second Karadi Affidavit, 7-9, 11, 22, 24-28; 14-2-6 (E).
MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98

Page 16

26.

Removing exempt information from a nonexempt public record is not

the creation of a new record. 14-2-9. 27. Producing a subset of records from a database is not the creation of a

new record. 14-2-9. 28. City demanded $15,000 prior to inspection for redacting confidential

information. Petition, 27 and Ex. I; 14-2-7; 14-2-9. 29. There is no valid per page computation of an electronic record, and

therefore actual costs of copying an electronic record cannot be set per page. 14-2-7; 14-2-9. 30. City Commissioners are rightly named as parties to the IPRA

enforcement action as they were fully aware of the IPRA disputes, the demand for $15,000 prior to inspection, and the demand for fee was not an actual cost and was intended to thwart Plaintiffs right and ability to obtain accurate, complete and timely information about governmental affairs. Petition, 39-43; 14-2-6; 14-2-7. 31. City Commissioners failed to protect the general welfare of the

municipality by failing to hold City Manager responsible for the violations of IPRA, violating the fundamental rights of the public and not protecting the SSN of its utility customers. Petition, 39-43; 3-14-12; 14-2-5.

MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98

Page 17

ARGUMENT Plaintiff invites this Court to take judicial notice of County of Bernalillo Cause No. D-202-CV-2009-1587, Foy v. New Mexico Educational Retirement Board wherein the Hon. John W. Pope ordered Defendants to keep[] in mind that one purpose of the Inspection of Public Records Act is to make the maximum possible information available to requesters as easily and cheaply as possible. Defendants make the least possible information available to requesters as laboriously and costly as possible, if at all. A. Fundamental Right to Inspect Public Records New Mexicos Inspection of Public Records Act embodies New Mexicos policy of open government and is codified at 14-2-1 -12. With very limited exceptions, IPRA provides that [e]very person has a right to inspect public records of this state. 14-2-1 (A). The Legislatures stated purpose in enacting IPRA is to ensure that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of public officers and employees. 14-2-5. IPRA further states that providing persons with such information is an essential function of a representative government and an integral part of the routine duties of public officers and employees. Id.

MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98

Page 18

Defendants asserted, however, that Citys will overrides the public policy of the State of New Mexico: Therefore, the legal issue is quite simple; in what manner was the City willing and able to comply with Ms. Toomey's request for an "audit log", while at the same time preserving the confidential and private information (their SSN's) of its utility customers. Response to Complaint, pg. 3. It is not Defendants will or choice as to whether or not to comply with IPRA. It is a requirement as the declared public policy of this state and a fundamental right of the people. 14-2-5. Defendants are correct in that the legal issue is quite simple. Defendants are required to comply with IPRA by providing a redacted audit log for inspection. Requested public records containing information that is exempt and nonexempt from disclosure shall be separated by the custodian prior to inspection, and the nonexempt information shall be made available for inspection. 14-2-9 (A). New Mexico courts have long recognized and acknowledged IPRAs core purpose of providing access to public information and thereby encourag[ing] accountability in public officials. Bd. of Commrs of Doa Ana County v. Las Cruces Sun-News, 2003-NMCA-102, 29, 134 N.M. 283, 76 P.3d 36. [A] citizen has a fundamental right to have access to public records. State ex rel. Newsome v.

MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98

Page 19

Alarid, 90 N.M. 790, 797, 568 P.2d 1236, 1243 (1977). The citizens right to know is the rule and secrecy is the exception. Id. People have a right to know that the people they entrust with the affairs of government are honestly, faithfully and competently performing their function as public servants. Doa Ana, 2003-NMCA-102, 29 (internal quotation marks and citation omitted). B. Public Records with Reasonable Particularity To determine whether disclosure is required as a public record, [e]ach inquiry [begins] . . . with the presumption that public policy favors the right of inspection. See Doa Ana, 2003-NMCA-102, 11. The publics right to inspect, however, is not without limitation. IPRA contained prior to its 2011 amendment, twelve narrow statutory exceptions enumerated in 14-2-1 (A). 5 In addition to these statutory exceptions, our Supreme Court crafted a non-statutory confidentiality exception known as the rule of reason. Newsome, 90 N.M. at 797, 568 P.2d at 1243. The rule of reason analysis is applicable only in those cases where a public entity seeks to withhold public records that do not fall within one of the statutory exceptions contained in Section 14-2-1 (A). City of Farmington v. The Daily Times, 2009-NMCA-057, 8, 146 N.M. 349, 210 P.3d 246.
5

The removal of exceptions 7, 9, 10 and 11 in 2011 were simply moved to other statutes.
Page 20

MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98

Defendants did not claim one of the twelve exceptions or confidentiality under the rule of the reason during the request and response period nor during the enforcement action. In fact, Defendants have made it clear their only defense is the audit logs do not exist. Response to Complaint, p. 3; Motion to Dismiss, 6-8, Citys Reply to Response to Motion to Dismiss, 1, 7-10; Response to Motion to Strike, 2; Response to Motion for Judgment, p. 2. In this action, Defendants began to claim the audit logs did not exist only after an enforcement action was filed. Prior to the enforcement action, the audit logs existed on May 30, 2008, if Plaintiff paid $15,000 prior to inspection and additional time was requested on July 14, 2008 to provide the database audit log. Pettion, 27, 29. This is not the first time, however, Defendants have utilized the defense does not exist in an enforcement action when, in fact, records do exist. Defendants requested the Court take judicial notice of Sierra County Cause No. CV-2009-159, Audette and Toomey v. City of Truth or Consequences, and claimed: In that case, the Petitioner is seeking the production of non-existent DVD recordings. The Petitioner improperly uses the Courts to request non-existent information. Reply to Response to Motion to Dismiss, p. 3, 11.

MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98

Page 21

In fact, Defendants regularly utilize the specious argument that records do not exist to interpose delay and obfuscate the issues, and did so in this case, too. The Court found the DVD recordings did exist and Plaintiff was not an elf watching herself in miniature on the television at governmental meetings. Toomey Affidavit, 10-12. Defendants no longer wait until an enforcement action has been filed, however, to claim records which exist do not exist. For example, Exhibit R to the Petition is an IPRA request for the instruction manuals of the ADG Utility Billing Software. Exhibit S to the Petition is the IPRA response claiming no written instruction manual. The instruction manual does exist and was provided to Plaintiffs expert witness Mr. Karadi on December 5, 2011. Second Karadi Affidavit, 16; Toomey Affidavit, 14-16. The Fenn, Grower and Toomey Affidavits are replete with numerous examples of IPRA responses from City stating records do not exist when, in fact, records do exist. Defendants dont have the will to comply and are becoming creative in the numerous methods they employ to violate IPRA, including this office has no records and redacting records would be creating a new record.

MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98

Page 22

Defendants even claim records do exist when they do not in order to thwart accountability and hide dishonest acts. See Grower Affidavit, Fenn Affidavit, and Toomey Affidavit. What is clear is there is a pattern of abuse in violating IPRA by Defendants, and it is very evident in this current action. The defense in this enforcement action is that disclosing the audit log is akin to creating a new public record. Motion to Dismiss, pp. 2-3, 5-8. Public records are broadly defined in IPRA 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. 14-2-6 (F). Defendants even utilize in their pleadings a definition of public records outside of IPRA, and instead utilize 14-3-2(C) rather than 14-2-6 (F). Motion to Dismiss, 7; Reply to Response to Motion to Dismiss, 9. Defendants reasoning as to how retrieving the audit log is creating a new record has never been clearly stated, and has remained somewhat of a mystery to Plaintiff. Plaintiff posits, however, that Defendants are actually playing a game of semantics in an attempt to obfuscate the issues and mislead the court.

MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98

Page 23

Defendants entire argument of the Motion to Dismiss and Reply to Response to Motion to Dismiss is IPRA does not contemplate creating new documents to satisfy a request. Motion to Dismiss, 9; Reply to Response to Motion to Dismiss, 7. This is a not true. IPRA does not require a public body to create a public record. 14-2-8 (B). Plaintiff did not make requests under, nor seek enforcement of, the Inspection of Public Documents Act; it is the Inspection of Public Records Act. A document is defined as a written or printed paper.6 Document is only one of the many forms of materials, regardless of physical form or characteristics that IPRA defines as a public record. 14-2-6 (F). If, however, one assumes Defendants were not attempting to obfuscate the issues and mislead the Court, and exchanges Defendants use of the word document for record, Plaintiff reasons that Defendants contention that providing the audit log is creating a new record is based upon one or both of the following: (1) Redacting exempt information from a nonexempt public record is the creation of a new record. (2) Providing a subset of records from a database is the creation of a new record. Not only are these contentions groundless and meritless, they are specious.
6

http://www.thefreedictionary.com/document
Page 24

MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98

1.

Redacting exempt information from a nonexempt public record is not the creation of a new record.

Defendants Response to Complaint states that redacting the audit log would contemplate that approximately 55,000 copies would need to be generated. Response to Complaint, p. 3 2. Since the definitions of both to generate and to create are to bring into being,7 Defendants are stating the process of redaction creates a new record. Defendants contend in their Motion to Dismiss that the audit log could only be created in the redaction process described by Huppmanually blacked out after printingand in the absence of the [redacted] document being created, the requested audit logs do not exist. Defendants further claim Petitioner is asking the City to create over 50,000 pages of new documents. Motion to Dismiss, pp. 2-3, 5-8. The same statements are repeated word-for-word in the Response to Reply to Motion to Dismiss, p. 3 7-10. As the Fenn Affidavit affirms, Defendants recently made this claim in an IPRA response to Mr. Fenn in September 2011. Defendants refused to comply with IPRA and provide the requested public records as the database contains
7

http://www.thefreedictionary.com/generate; http://www.thefreedictionary.com/create
Page 25

MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98

confidential information. The response continues it is not required to creat[e] a new record by redacting the exempt information. Fenn Affidavit, 9; Toomey Affidavit, 24, Ex. H. IPRA clearly disagrees, as requested public records containing information that is exempt and nonexempt from disclosure shall be separated by the custodian prior to inspection, and the nonexempt information shall be made available for inspection. 14-2-9 (A). Defendants claim that the audit log did not exist unless the redacted audit log was created as a defense in an IPRA enforcement action is groundless, meritless, and absurdly specious. It allows Defendants to keep all utility records and any other record with exempt information secret, enabling keepers of the record inordinate powers akin to a secret police. The citizens right to know is the rule and secrecy is the exception. Newsome, 90 N.M. 790. Redacting a public record is not the creation of a new record. 2. Providing a subset of records from a database is not the creation of a new record. While not as prevalent a defense in Defendants pleadings as the redacting is creating, Defendants also claimed The City does not maintain a computer audit log. Response to Complaint, p. 3.
MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98

Page 26

Since the ADG Utility Billing System audit log is an integral part of the Citys utility software and is automatically maintained,8 Plaintiff and the Court must surmise Defendants made a knowingly false statement or surmise Defendants meant the audit log did not exist separately from the ADG Utility Billing System database since City has never chose[n] option #10, Export Data for SS/WP9 and rendered the audit log.10 Arguing upon the second point, the retrieved ADG Utility Billing System audit log is a subset of the database and exists as records in the database. Simply put, reporting of data is separate from the creating of data. As IPRA requires a request to identify the records with reasonable particularity, it is not unreasonable to expect IPRA to require a response to be reasonably particular to the request. 14-2-8 (C). For example, if an IPRA request is made for any building permits for an address (reasonably particular), the response of pointing to 15 filing cabinets and claiming the IPRA response has been provided, would be a violation of the spirit and intent of IPRA.
8

Maintain is defined as to keep in existence. http://dictionary.reference.com/browse/maintain Since, the audit log exists and was produced on December 5, 2011, it was maintained. 9 The enumerated process to retrieve the ADG Utility Billing System audit log. See Karadi Affidavit, 6-7. 10 That City is not utilizing the ADG Utility Billing System audit log is troubling in itself. It confirms Plaintiffs initial complaints to the City that they cannot protect the data which initiated the IPRA requests.
MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 27

It is well-regarded that a public body is not required to compile information from the public bodys records or otherwise create a new public record in response to a request: A person asks a county personnel officer for a list of all employees with college degrees. The office does not keep lists of employees with college degrees, although college degree information may be included in an employees personnel file. The records custodian is not required to go through each file to find and list employees with college degrees. It may, however, make the nonexempt portions of all personnel files available to the requester so she can peruse them in search of employees with college degrees. Office of the New Mexico Attorney General, Inspection of Public Records Act Compliance Guide 34 (6th ed. 2009) (hereinafter IPRA Compliance Guide). Retrieving the audit log, or retrieving a requested subset of a database, is not, however, compiling information. Compile is defined as putting together or composing materials gathered from several sources.11 A database is one source. As the legislature has increased its technical knowledge, 14-2-9 was amended in 2011 to include a requirement that electronic records be provided in electronic format if requested. 14-2-9 (B). As the utilization of databases becomes more and more prevalent in the management of records of all sorts, the legislature provided in IPRA the above language to expand upon the only other references to electronic records (i.e.,
11

http://www.thefreedictionary.com/compile
Page 28

MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98

databases) as public records found in the Public Records Act. 14-3-1 -25. In fact, the Legislature included new language to 14-2-9 to ensure there was no confusion between the Inspection of Public Records Act (14-2-1 -12) providing the greatest possible information regarding the affairs of government and the Public Records Act (14-3-1 -25) providing for the sale of data for commercial purposes: Nothing in this section regarding the provision of public data in electronic format shall limit the ability of the custodian to engage in the sale of data as authorized by Section 14-3-15.1 NMSA 1978, including imposing reasonable restrictions on the use of the database and the payment of a royalty or other consideration. 14-2-9 (D). Both an automated subset of a database and a reasonably particular subset of a database are public records subject to inspection under IPRA. When an IPRA request is made for a subset of a database in electronic format, it is exported. As all databases support exporting into CSV,12 a file format that is easily human-readable, an electronic request for a subset provided in CSV is an existing file format at the time of the request. 14-2-9 (B). The audit logs for the ADG Utility Billing System exist electronically and were produced electronically on December 5, 2011 for inspection. The audit log is an automated function of the ADG Utility Billing System and are public records

12

http://en.wikipedia.org/wiki/.csv
Page 29

MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98

that are used, created, received, maintained or held by or on behalf of any public body and relate to public business. See Second Karadi Affidavit; 14-2-6 (E). C. The Cost of Public Records IPRA defines inspect as to review all public records that are not excluded in Section 14-2-1 NMSA 1978. 14-2-6 (C). Plaintiffs IPRA request of May 21, 2008, requested to inspect. Plaintiffs request of May 28, 2008, requested to inspect. Plaintiffs request of July 9, 2008, requested to visually inspect or for City to provide an electronic copy. Petition, Ex. E, H and J, respectively. Defendants required payment of $15,000 in advance of allowing inspection for the May 28, 2008, IPRA request: City will not comply with your request dated 5/28/08 (attached) related to the audit log until a deposit of $15,000 is received from you to cover the expense of printing the report for your inspection. Petition, Ex. I (emphasis added). The demand for $15,000 to inspect was a direct attempt to deny [Plaintiff] access to a public record and is an attempt[] by the City to dissuade an informed citizenry with unreasonable charges. Petition, Ex. J. While IPRA provides that a reasonable fee may be charged for copying public records, IPRA does not allow a fee for inspection: A records custodian may require a person to pay before the custodian makes copies. This does not permit the custodian to require
MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 30

payment in advance of allowing inspection. Rather, the custodian should provide the records for inspection, and, if the requester subsequently requests copies of particular records, the custodian may require payment in advance for the pages designated for copying. IPRA Compliance Guide, p. 38 (emphasis added). IPRA further provides that a Custodian of Records must provide reasonable facilities to make copies, allowing the requestor to utilize their own equipment to copy public records. 14-2-7 (D). As such, if Defendants had provided for inspection what they claimed would be 55,000 pages of an audit log, Plaintiff had the right to bring in her own equipment and copy those 55,000 pages without any imposition of a fee. Response to Complaint, p. 2; Motion to Dismiss, 8. In fact, Plaintiff has previously done just that: utilized her own equipment to scan in three years of meeting minutes, for example. IPRA further prohibits charging fees for redaction. 14-2-9 (C)(6). Defendants are aware we cannot charge for the [personnel time of] data redaction, as Mr. Hupp expressed in his justification for the $15,000 demand. However, the Hupp calculations result[ed] in a printing and copying charge of $13,65013 for both the initial printing and a copy of the redacted report. Response

13

Mr. Hupp explains the difference in the $15,000 and $13,650 as reports run for the initial calculation showed a slightly higher page/day count.
MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 31

to Complaint, Ex. 2. In other words, while not charging for the personnel time to redact, Mr. Hupps calculation of costs is clearly for redaction contrary to IPRA. Since the Defendants argument that the redaction process required manually blacking-out printed documents is specious, and knowingly so, this was a knowingly illegal request for advance payment meant to chill IPRA requests. As an integral part of the routine duties of public officers and employees, IPRA does not allow for a fee to retrieve records for inspection. 14-2-5. In fact, inspection of public recordsincluding a redacted public recordis free. 14-2-9 (C)(6). Most public bodies, including City, have a set fee for a requested photocopy of a public record after inspection. Citys set fee is $0.25 per copy. Said copy fee is also reasonable for scanning a record to respond to it electronically as most modern photocopy machines also include the option to copy as an electronic record (i.e., scan). While it could be argued that the actual cost of a scan is less than a paper copy, since neither paper nor toner is utilized, the difference is nominal. IPRA also allows the actual costs associated with downloading copies of public records to a computer disk or storage device, such as onto the USB drive Plaintiff provided. 14-2-9 (C)(3).

MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98

Page 32

Since the actual time/cost expended by Defendants of three minutes to provide the audit log on the storage device included both retrieval and copy to a storage device, it could easily be argued that the actual downloading onto the USB drive took less than 30 seconds. Since a public body is only allowed to charge for the actual costs at 30 seconds, Defendants demanded $500 a second or $1.8 million an hour.14 Petition, Ex. I. As ridiculous as the analysis of actual cost in the demand for $15,000, Defendants continue to charge outside of IPRAs allowance of actual cost in order to dissuade the public from becoming informed citizenry through IPRA. 14-2-9 (C). City passed Resolution 07-10/1115 in September 2010 and included a Fees for Production of Public Record. City charges $0.25 per "page" for "file transfer" to "CD/DVD's/USB Drive/Email" of electronic records. Said fee is not based upon any "actual cost" for downloading copies as allowed per 14-2-9 (C), as further explained. To continue the analysis utilizing the ADG Utility Billing System audit log retrieved on December 5, 2011, based upon Resolution 07-10/11, Plaintiff owes
14 15

30 seconds at $15,000. http://www.torcnm.org/downloads/clerks/Resolution%207.10-11.pdf. The original resolution approved on September 13, 2010, was amended on September 27, 2010. It was amended as Resolution 07-10/11 excluded IPRA requests via email in violation of 14-2-8 (F).
MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 33

City $2,435.50 for the retrieved electronic record "as is" (9,742 "pages" at $0.25 per "page"). At 30 seconds to download the electronic record to the provided USB drive, City claims an "actual cost" of $292,260 per hour utilizing the set fees under Resolution 07-10/11.16 Resolution 07-10/11 downloading fee of $0.25 per page is in violation of IPRA and another attempt by Defendants to dissuade an informed citizenry. Simply, a per-page fee for downloading electronic records cannot be supported. 14-2-9. Defendants claimed an absurd and unsupportable manual process of redaction,17 rather than utilizing methods or redaction tools, to make the least possible information in the most burdensome and expensive manner possible. 14-2-9 (A). Defendants violate IPRA in demanding fees prior to inspection and charging outrageous fees well beyond actual cost to dissuade an informed citizenry and violate the fundamental right to have access to public records. Newsome, 90 N.M. 790.
16

As the ADG Utility Billing System audit log was retrieved and copied after September 2010, Resolution 07/10-11 is controlling for fees incurred on December 5, 2011. 17 Defendants were also redacting information from their sample copies that went beyond redacting confidential information. However, since the audit log has now been produced without the excessive and convoluted redaction as Defendants sampled, the redaction issue is no longer a material issue.
MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 34

And if that doesnt work, the City will claim the records do not exist. D. Denial and Enforcement Under IPRA's "enforcement" provision, an award of damages, attorney fees and costs are mandatory when (1) the request has been denied, and (2) the requester is successful in a court action to enforce the Act. 14-2-12. IPRA is not about the providing of documents. It is just as important that a record does not exist as it is that a record does exist. IPRAs purpose is to provide the greatest possible information regarding the affairs of government and the official acts of public officers and employees. 14-2-5. People have a right to know that the people they entrust with the affairs of government are honestly, faithfully and competently performing their function as public servants. Doa Ana, 2003-NMCA-102, 29 (internal quotation marks and citation omitted). In this case, the nonexistence of an audit log for the application cards proves the safety of SSN is at risk. Denied this information allows only speculation and no correction or accountability of a security risk. Defendants continued failure to definitively provide the information as to whether or not the application audit log exists,18 denies Plaintiff the right to definitively determine whether the Utility Department is competently protecting
18

City responded on December 5, 2011, they are unaware of whether the application audit log exists although Garcia Affidavit and Exhibit 4 to Response to Complaint claim its existence.
MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 35

the communitys highly sensitive information. Plaintiff has definitively determined, however, that Defendants are not honestly performing their function as public servants. See Toomey Affidavit. Under the plain language of the enforcement provision, whether the requested records were found by this Court to exist or not exist is immaterial to an award of damages. If a records custodian fails to respond to a records request within fifteen days of receiving the request and a court concludes that the failure to respond was unreasonable, the court shall award the plaintiff damages not to exceed one hundred dollars a day. Section 14-211(C)(1)-(2). In such cases, damages accrue from the day the public body is in noncompliance until a written denial is issued and shall be payable from the funds of the public body. Section 14-211(C)(3)-(4). San Juan Agric., 2011-NMSC-011, 13. Simply, Defendants did not provide the required written explanation of denial within fifteen days after receipt of the three separate written requests for audit logs. 14-2-11. Considering compliance required 20 minutes, unreasonable may be an understatement. Although Defendants did claim burdensome when they demanded $15,000, more than a year between claim of burden and filing of the enforcement action is beyond a reasonable period of time for the 20 minutes it actually took to retrieve, redact and electronically copy the audit log. 14-2-10.
MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 36

Regardless, a request to inspect a public record cannot be denied merely on the basis of burden and does not warrant a refusal to disclose. Newsome, 90 N.M. 790, 568 P.2d 1236. IPRA includes remedies to encourage compliance and facilitate enforcement. San Juan Agric., 2011-NMSC-011, 12. I dont believe, however, the Legislature ever envisioned a public body so intent upon violating the public policy of New Mexico and the fundamental rights of its citizens as have Defendants. See Grower Affidavit, Fenn Affidavit, and Toomey Affidavit. Since these initial IPRA requests and responses were made in 2008, City has improved on providing written explanations of denial: records do not exist when they do exist; this office doesnt have any records; that would be creating a new record. What has not improved is providing the greatest possible information to determine whether our public servants are honestly, faithfully and competently performing. Doa Ana, 2003-NMCA-102, 29 (internal quotation marks and citation omitted). IPRA allows for damages up to $100 per day. 14-2-11 (C). IPRAs damage provisions are intended to encourage public entities prompt compliance with records requests. San Juan Agric, 2011-NMSC-011, 13. When Defendants

MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98

Page 37

were not encouraged by the potential of damages up to $100 per day and refused compliance, action was required. 14-2-12. For the egregious actions both in the request/response phase and during the enforcement action, consequences are appropriate and encouragement necessary with an award of full damages and costs for each of the three requests until disclosure on December 5, 2011, the day the records were disclosed1,278 days, 1,271 days, and 1,229 daysfor a total of $377,800. Defendants seek to avoid the mandatory language by arguing the audit log does not exist. Strangely, Defendants claimed throughout the enforcement action that only the ADG Utility Billing System audit log did not exist. Defendants simply ignored the application audit log, except for the Garcia Affidavit claiming it existed, and it does not exist. In other words, Defendants claimed the audit log that does exist doesnt exist (ADG Utility Billing System audit log) and claimed the audit log that doesnt exist does exist (application audit log). Was this a calculated strategy to interpose delay and obfuscate the issues? That is for this Court to judge. CONCLUSION It is true that the legal issue is quite simple; in what manner was the City willing and able to comply with Ms. Toomey's request for an audit log, while at
MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98

Page 38

the same time preserving the confidential and private information (their SSN's) of its utility customers. Response to Complaint, pg. 3. It really is quite simple: Defendants were able to comply in 20 minutes to retrieve, redact and copy the ADG Utility Billing System audit log. Defendants simply werent willing to comply. Consequences are appropriate. WHEREFORE, for all the reasons enumerated herein, Plaintiffs Motion for Summary Judgment should be granted, and the Court should enter judgment (1) declaring Defendants violated IPRA on three requests of May 21, May 28 and July 9, 2008; (2) award statutory damages and costs; and (3) for such other relief as the Court deems necessary and just. Respectfully submitted, JANUARY 13, 2012 ______________________________ DEBORAH L. TOOMEY, Pro se 7010 Phoenix Ave NE, #518 Albuquerque NM 87110 Phone: (505) 315-8503 Fax: (505) 214-5771

MOTION FOR SUMMARY JUDGMENT Toomey v. City of Truth or Consequences - D-0721-CV2009-98

Page 39