Kudos and thank you to the Santa Fe Reporter. The Santa Fe weekly dropped the hammer on the Santa Fe Police Department March 12 when it filed suit over police disciplinary records and complaints filed against four officers.
We sympathize and empathize with the Reporter. Reporters chug along in their daily grind, trying to obtain information in whatever way possible to tell a complete story to readers. Often details are held in various reports. Sometimes those reports have sensitive information. Such is the case with disciplinary records.
These documents can contain what the Inspection of Public Records Act describes as “matters of opinion.” Whenever a records custodian comes upon such documents, it is his or her duty to redact opinion and forward the document to the requester.
This rarely happens. It is for that reason we are grateful to the Reporter. This battle needs to be waged simply because so many records custodians get it wrong.
In the Santa Fe Police Department’s case, their records custodian Greg Gurule made a few mistakes. First he flat out refused to provide the documents. Instead he should apply the Act, redact and forward the document redacted.
He relied on District Judge Raymond Ortiz’s ruling in Lopez versus City of Santa Fe. The City won that case because Ortiz ruled the complaint moot. Lopez received the documents through separate employment proceedings. There was never a determination made in the case. That’s not a win, nor good case law.
He also cited another Santa Fe Reporter case against the police department. That case is a little more tricky, as it was a very similar request to the current one. In the previous case District Court Judge Gregory Shaffer cited two other cases. In one case the public was asking for names of corrections employees who had been discharged for failing a drug test. In that case the District Court found for the corrections department, citing employee privacy. The second case was a Las Cruces newspaper asking a public body for disciplinary actions. In that case the judge found that privacy can only be waived by the employees.
We have to hand it to the City that this is a District Court win. However, it has not been to Court of Appeals, so it is not case law.
And that’s why the Reporter’s current case is so important. We need a clear higher court ruling on what is an opinion and what is a finding of fact. Open records advocates argue someone vouching for someone is an opinion. As the Act states, a letter of reference is an opinion.
However, when an investigation is conducted and a decision is made, such as firing, leave without pay or a demotion, that is a fact.
Law enforcement is the worst when it comes to secrecy. It could be their fear of retaliatory lawsuits by victims or perpetrators, or erring on the side of safe. These are the people whose job it is to deal with the public, all day, every day. The public should know how city police, deputies and State Police officers conduct themselves when interacting with the public. Witness the explosion of lapel cameras.
The public does not trust law enforcement. When the City of Santa Fe digs in, as it has numerous times, in reaction to requests for documents, which would tell the public about the taxpayer-paid city police officers, it raises suspicions. The City could lower those raised eyebrows by being more open and following the Act.