The Rio Grande SUN settled a lawsuit with the New Mexico Department of Public Safety for its failure to follow the state’s Inspection of Public Records Act and for violating a 2007 settlement agreement, which outlined the way the Department was to correctly respond to record requests and how to keep a log showing compliance with the agreement.
SUN Editor and Publisher Robert B. Trapp filed the lawsuit April 25, 2017 in the First Judicial District Court and filed an amended lawsuit Oct. 29, 2018. The complaints detail 10 different parts of the 2007 settlement agreement the Department violated, 21 instances from 2015 to 2018 where the Department’s record custodian failed to respond to former SUN staff writer Wheeler Cowperthwaite’s requests for records, how the Department took about two years to respond to Cowperthwaite’s request for High Intensity Drug Trafficking Area Region 3 Task Force records, the Department’s failure to follow the Act in response to a request for a video of kidnapping suspects and settlement compliance records, as well as other ways the Department broke the Act and actively tried to conceal records from the public.
“It’s a whole bunch of little stuff and it piles up on the back of my mind and then that video came along and that two years for the Region 3 Task Force,” Trapp said. “You get to a point where you just can’t look the other way.”
Trapp said he settled the lawsuit for $250,000.
The new settlement agreement includes a seven-page policy the Department must follow to respond to all Act requests. It details how Department record custodian is to release original records of entry, apply the Act’s law enforcement and other exemptions, how the Department is to keep and retain a log showing compliance with the settlement agreement and requires the Department to conduct annual Act trainings with all employees.
Cowperthwaite said he was surprised at the thoroughness of the new settlement agreement, specifically the parts dealing with original records of entry.
“As an IPRA nerd, that is really, really important because State Police, as I’ve said, is actively, or was actively, hiding anything that they considered to be sensitive in supplemental reports,” he said during an Oct. 6 telephone interview.
He said sources at the time told him Department bosses directed them to put only sparse information in their incident reports, especially in cases of rape, and include what should have been the actual incident narrative in a supplemental report.
The new settlement agreement states all 911 recordings and transcripts, initial incident reports, initial offense reports, accident and traffic offense reports, radio and dispatch tapes, radio logs, mug shots and CAD printouts to be original records of entry, as defined by the state’s Arrest Record Information Act.
“(The Department) shall not, either in whole or part, change its practice of creating original records of entry to avoid creating a public record,” the settlement agreement states.
Trapp said the Department almost immediately failed to follow the Act after they signed the new settlement agreement.
“The very first IPRA I filed after we signed the agreement on Sept. 9, (2019), instead of sending me a three day letter, she sent me a seven day letter,” Trapp said. “Very first IPRA. What do you think they learned? Nothing.”
Department officials also failed to follow the settlement agreement when it was signed in 2007, he said, because they claimed the document was unenforceable.
“I expect to be in court with them again within the next five years,” Trapp said. “I do.”
Getting to the new settlement agreement was a long process.
Trapp said he signed the new settlement agreement July 27, but it took Department Cabinet Secretary Mark Shea another six weeks to sign.
“That’s who I’m dealing with,” Trapp said.
Although the SUN and Department attorneys finished the settlement agreement in the springtime, the process was further delayed by Department General Counsel Elizabeth Trickey, who was bit by a shark while on vacation, according to lawyers on both sides of the settlement negotiations.
When she returned from medical leave, Trapp said, she would not sign off on the agreement because she did not like the 2007 settlement agreement because it states all incident reports from all officers on scene are original records of entry, not just the report from the first officer on the scene.
Trapp said this point is included in both the 2007 and new settlement agreements.
Although everyone in the public and other media organizations will benefit from the new agreement, the parties in the original 2007 settlement agreement did not sign on to be part of the latest lawsuit.
The lawsuit that resulted in the 2007 settlement agreement included not only the SUN, but also the Santa Fe New Mexican, Albuquerque Journal, the New Mexico Foundation for Open Government and the now-defunct Albuquerque Tribune.
Trapp said he reached out to all the organizations before he filed the amended in 2018 complaint, but the first question each had was whether or not being part of the lawsuit would cost them any money.
Trapp said the lawsuit and settlement agreement is only a next step in that it could serve as a reminder to other government entities that they must follow the state’s public records laws.
“I’m always saying this, it’s a take no prisoners attitude,” he said. “I don’t think it really means anything obviously by DPS’s continued behavior, but I think it sends a message to everyone. I hope record custodians everywhere take note.”
A Department spokesperson responded to a request for comment through email.
“The Department of Public Safety endeavors to conduct all its business with the utmost integrity—and that includes being responsive to IPRA requests and aligning our review of public record requests with the law,” the spokesperson wrote late Tuesday. “This state administration has made transparency a point of emphasis and we intend to work diligently to meet that standard and the public’s expectation.”
Read the entire settlement agreement, including the Department's new Inspection of Public Records Act policy below: