COMMENTARY: The state’s Inspection of Public Records Act is like a sledgehammer – a powerful tool designed to ensure you can break loose information about how your government is serving you.
But government is increasingly outsourcing its work to contractors. The uncertainty about how IPRA applies when private companies are doing public work with your money sometimes reduces that tool to a tiny chisel.
The Legislature needs to update state law to give you back your sledgehammer.
Here’s the problem: It took a lawsuit to get a prison health company to release settlement agreements with state inmates who sued the company. It also took a lawsuit to force the town of Truth or Consequences to release video recordings of public meetings made by a government contractor.
Lawsuits consume time and money. Many people don’t have the means to sue. And IPRA’s intent is that you shouldn’t have to sue to learn about how your money is being spent.
Legal settlements and video recordings undoubtedly fall under IPRA’s definition of public records: “…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 (emphasis added) and relate to public business.”
From the 2012 T or C case, the N.M. Court of Appeals created a 12-point test to be used in court to determine whether records held by government contractors are subject to public disclosure.
It was with that test in mind that NMPolitics.net sued the City of Las Cruces in 2016, seeking dozens of city manager job applications that were submitted to the company conducting the search and being kept secret. The Court of Appeals has previously ruled that the public should get to see such job applications. We argued that the city shouldn’t be allowed to hide them from you by outsourcing its search.
But the Court’s test is subjective. Judges are to consider the totality of circumstances – each of the 12 points and context – and then make a ruling. In September, the judge in our case ruled in favor of the city and dismissed our lawsuit.
I thought about appealing. However, while I wanted to win release of the city manager applications, my real goal was to establish that government can’t bypass the public’s right to know by outsourcing its work.
Given that the 12-point test is complex and subjective, I ultimately decided an appeal, even if we won, wouldn’t accomplish that goal. Each case is unique. We’d have to fight this battle again. And again. And again.
Instead of appealing, I’m calling on the Legislature to update state law. Make clear that records that would be public if held by a government agency are still public when held by a contractor doing government work.
To be clear, I don’t want a private company’s payroll records or utility bills to be out in the public. I’m not seeking trade secrets. I own a business and am sensitive to the desire to keep such information private.
But documents a contractor creates or collects as part of its work for the government should be public. You have a right to scrutinize how your money is being spent, regardless of whether government does the work itself or pays someone else to do it.
Lawmakers, give us back our sledgehammer.