State law says all people are entitled to the greatest information possible about their government. A judge would set a contradictory precedent if he dismissed a lawsuit seeking release of Las Cruces city manager applications or ruled against it.
“If the court sides with Defendants in this case, it will encourage state government to hide public records in the hands of private entities, which is not what the New Mexico Legislature intended,” wrote the attorney, C.J. McElhinney of Las Cruces.
He was referring to the Legislature’s passage of the N.M. Inspection of Public Records Act (IPRA), which states that all people “are entitled to the greatest possible information regarding the affairs of government and the official acts of public officers and employees.”
NMPolitics.net’s response to the city’s motion to dismiss or rule against the lawsuit was filed Thursday. The case is assigned to Third Judicial District Judge James T. Martin. The city has requested a hearing before Martin on its motion.
Las Cruces has released 11 city manager applications it received from The Mercer Group, the private company it hired to run its open city manager search. But the city has refused to release dozens more, arguing that the private contractor, not the city, has possession of them so they don’t have to be released.
NMPolitics.net argues in its lawsuit — which it filed against the city and The Mercer Group — that the city can’t avoid transparency law by outsourcing government services.
In response, the city dug in its heels on its assertion that the public doesn’t have a right to see city manager applications that are in the hands of a private company running the job search.
“The City has no legal mechanism under IPRA to compel the divulging of private information held by an independent contractor,” Deputy City Attorney Robert G. Cates wrote in the city’s motion seeking dismissal of the lawsuit or a summary judgement ruling against it.
The Mercer Group has also sought dismissal of NMPolitics.net’s lawsuit, arguing that its contract with the city doesn’t require it to provide the records. And it says IPRA doesn’t apply to the company.
The Mercer Group provided the 11 applications to the city that “most closely matched the selection criteria for the City Manager position,” the filing states. “Mercer was not required to provide or disclose to the City any information about applicants who were not included. … The City does not have access to this information under the Agreement or any other arrangement.”
In its response to such arguments, NMPolitics.net states that the N.M. Court of Appeals has ruled that city manager applications are public record. And the Court has created a test for when documents held by a private contractor are subject to IPRA and when they are not.
NMPolitics.net argues that the city manager applications meet enough of the factors in the so-called Toomey test — named for the 2012 court case Toomey v. City of Truth or Consequences — to require disclosure.
For example, NMPolitics.net points out in its response, The Mercer Group’s contract with the city is funded by public money. It appears that some of The Mercer Group’s work has been done on city property. The work of the search firm is integral to the city’s decision-making process. The firm is doing work the city would otherwise perform. The city has direct involvement in and consultation with the firm on its work. And the firm is doing its work on behalf of the city.
In the response it filed in court last week, NMPolitics.net also made a request to conduct discovery to gather evidence related to the Toomey test.
But the court need not apply the Toomey test to reject the city’s request for summary judgement against NMPolitics.net, McElhinney wrote. The Mercer Group “completely assumed a government function otherwise reserved exclusively for the Las Cruces City Council,” he wrote. He referred to a 1997 case in Florida where a court ruled that because a private entity completely assumed a government function, all documents held by that private entity related to the government function were public.
The same “delegation of function” test that applied in the Florida case applies in the case against the City of Las Cruces, McElhinney argued.