City settles two lawsuits over public records requests for $62,500

Oct. 23—The city of Santa Fe has settled a pair of lawsuits over record requests for $62,500 and has been ordered by the state District Court to hand over documents in several similar cases alleging violations of New Mexico's public records law.

The payout to Santa Fe resident Jared O'Shell is the second in as many years in a public records case. Former City Councilor Steven Farber received a $50,000 payout in April 2023 in a settlement agreement for an open records lawsuit in which he alleged the city had stonewalled his requests for documents about a rezoning proposal.

"It is mystifying to me they seem to prefer to spend this money on the lawsuits rather than using it to hire additional records clerks," O'Shell's attorney, Ken Stalter, said Wednesday.

The city reached an agreement with O'Shell on Oct. 9 in a lawsuit he filed last year alleging the city was taking too long to fulfill requests for records showing ties between city officials and nonprofit homebuilder Homewise Inc., and in an additional lawsuit filed this summer alleging the city was withholding documents pertaining to an investigation into the identify of pseudonymous Facebook poster "Jay Baker."

Under the settlement agreement, the city did not admit wrongdoing and O'Shell will not pursue the requests any further.

"That doesn't mean that anybody else can't," O'Shell noted in an interview Wednesday.

He doesn't know why the city spent so much time and money fighting his lawsuits, he said, adding he remains unsatisfied with the records produced in response to his requests.

"They still have secrets," he said.

O'Shell is one of several people who have filed lawsuits against the city in the past several years accusing officials of withholding public information. Stalter, who has represented several clients who have sued the city alleging open records violations, said the city has "recurring problems" complying with the state's open records law.

"It's just unfortunate the city of Santa Fe seems to be unable to get this right," he said.

The city Office of Records Custodians falls under the City Attorney's Office. City Attorney Erin McSherry did not respond to a request for comment Wednesday regarding the settlement with O'Shell.

McSherry previously has denied allegations the city slow-walks its response to requests for public records, and has pointed to limited staff capacity to process a high volume of requests within the state-required timelines.

City spokesperson Regina Ruiz declined to comment on the settlement.

She wrote in an email the city has enhanced its records processes and systems by improving customer communication; increasing the records staff to five, with additional help from interns; ongoing training; and "exploring options for more efficient IPRA processing and video reviewing software."

The city's responses to one of O'Shell's lawsuits state the office receives about 150 requests a week and can process about 100 emails an hour.

"On average, it takes ORC staff an hour to review 100 emails for organization to responsive and non-responsive emails, then review for confidential information to be redacted such as attorney-client privileged information, confidential personnel information, protected personal identifying information, etc.," stated the response, which Stalter provided to The New Mexican.

Several other records-related lawsuits are making their way through the legal system. District Judge Kathleen McGarry Ellenwood on Oct. 18 granted Louis Carlos' motion seeking an order for the city to comply with his records request.

Carlos, a former Santa Fe police officer and unsuccessful District 3 City Council candidate who works as a private investigator, filed a lawsuit in April 2023 alleging the city withheld records connected to five requests he had filed dating back to September 2022.

The court order requires the city to provide records to Carlos' attorneys within 30 days of receiving a list from him — or face fines of $100 per day.

Carlos referred questions about the case to his attorney, Thomas Grover.

"I don't think it should take two years of litigation to get lapel camera videos," Grover said of Carlos' case, noting he and Carlos are both former police officers with much more knowledge of existing records than the general public and still had a hard time getting the city to comply with state law.

Grover said he believes the state judges are "trying to give a message to the city of Santa Fe their excuses aren't flying in court."

"The city, for whatever reason, seems to think they can create an excuse to delay response because they don't want to staff the IPRA unit with an appropriate number of personnel," he said.

Grover said he's been suing the city of Santa Fe over records requests for a decade, but the city's issues with compliance have worsened in the past several years.

Until there are internal consequences, "I don't think there will be much change," he said.

In a prior interview, Grover said understaffing in the city's records office is not a sufficient reason for a lack of compliance with state law, which allows a government agency up to 15 days to fulfill a request for public records.

"If you're understaffing the department and it takes months to produce records — if you take that to its logical conclusion, then they never have to produce the records," he said in April 2023.

O'Shell's payout is higher than the regular annual pay of some staff members in the city's records office. Workers' pay ranges from just over $54,000 annually to more than $84,000, according to hourly wage information provided by Human Resources Director Bernadette Salazar.

A similar court order was handed down recently in a lawsuit filed in May by the Los Alamos Study Group seeking records related to communication between the city and Los Alamos National Laboratory.

The anti-nuclear group, also represented by Grover, has accused the city of delaying fulfillment of its request for emails. The city has refuted that claim. District Judge Bryan Biedscheid on Oct. 15 ordered the city to produce all responsive records to the request by Nov. 1.

Los Alamos Study Group Executive Director Greg Mello said the city has released some emails since then, and the group is waiting to see whether it is withholding documents of particular interest until the last minute.

Mello said the group is happy about the judge's decision but frustrated the situation had to rise to that level.

"It's just a pity it's taken so long and wasted city money when it doesn't seem like there was any strong reason to do so," he said.