Oct. 23 – The city of Santa Fe has settled a pair of lawsuits over $62,500 records requests and has been ordered by the district court to turn 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 Councilman Steven Farber received a $50,000 payout in April 2023 in a settlement agreement for an open lawsuit alleging the city stonewalled his requests for documents on a rezoning proposal.
“I’m surprised they would rather spend this money on lawsuits than hiring 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 it took too long to comply with requests for documents showing ties between city officials and the nonprofit homebuilder Homewise Inc. . to turn out. this summer, the city claimed it was withholding documents related to an investigation into the identity of the pseudonymous Facebook poster “Jay Baker.”
Under the settlement agreement, the city has not admitted wrongdoing and O’Shell will not pursue the requests further.
“That doesn’t mean someone else can’t do that,” 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 that he remains dissatisfied with the documents 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 recent years, accusing officials of withholding public information. Stalter, who has represented several clients who have sued the city for open records violations, said the city has “recurring problems” with compliance with the state’s open records law.
“It’s just unfortunate that the city of Santa Fe doesn’t seem to be able to do this properly,” he said.
The city records keepers office falls under the city attorney’s office. City Attorney Erin McSherry did not respond to a request for comment Wednesday about the settlement with O’Shell.
McSherry has previously denied allegations that the city is slow to respond to public records requests, and has pointed to limited staff capacity to process a large number of requests within state-required timelines.
City spokesperson Regina Ruiz declined to comment on the settlement.
She wrote in an email that the city has improved its records processes and systems by improving communications with clients; expanding the archives staff to five, with additional help from interns; ongoing training; and “explore options for more efficient IPRA processing and video review software.”
The city’s responses to one of O’Shell’s lawsuits show the office receives about 150 requests per week and can process about 100 emails per hour.
“On average, it takes ORC staff an hour to review 100 organizational emails for responsive and non-responsive emails, and then assess whether any confidential information needs to be redacted, such as privileged attorney and client information, confidential personnel information, protected personal identification information, etc.,” according to the response Stalter provided to The New Mexican.
Several other case-related lawsuits are making their way through the legal system. District Judge Kathleen McGarry Ellenwood granted Louis Carlos’ request on Oct. 18 to order the city to grant his records request.
Carlos, a former Santa Fe police officer and failed District 3 City Council candidate who works as a private investigator, filed a lawsuit in April 2023 alleging that the city withheld data related to five requests he made and dating from September 2022.
The court order requires the city to provide information to Carlos’ attorneys within 30 days of receiving a list of him — or face fines of $100 per day.
Carlos referred questions about the case to his attorney, Thomas Grover.
“I don’t think there should be two years of litigation to get lapel camera videos,” Grover said of Carlos’ case, noting that he and Carlos are both former police officers with far more knowledge of existing documents than the general public and at that always had. It’s difficult to get the city to comply with state law.
Grover said he believes the state judges are “trying to send a message to the city of Santa Fe that their apology will not end up in the courtroom.”
“The city, for whatever reason, seems to think that they can come up with an excuse to delay the response because they don’t want to adequately staff the IPRA unit,” he said.
Grover said he has been suing the city of Santa Fe over records requests for a decade, but the city’s compliance problems have worsened in recent years.
As long as there are no internal consequences, I don’t think much will change, he said.
In a previous interview, Grover said understaffing at the city’s records office is not a sufficient reason for failure to comply with state law, which gives a government agency up to 15 days to comply with a public records request.
“If you understaff the department and it takes months to produce documents – if you take that to its logical conclusion, they never have to produce the documents,” he said in April 2023.
O’Shell’s payout is higher than the regular annual salary of some staff members at the city archives. Employee pay ranges from just over $54,000 per year to more than $84,000, according to hourly wage information provided by HR director Bernadette Salazar.
A similar injunction was recently granted in a lawsuit filed in May by the Los Alamos Study Group, seeking records related to communications between the city and the Los Alamos National Laboratory.
The anti-nuclear group, also represented by Grover, has accused the city of delaying the implementation 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 documents to the request by Nov. 1.
Greg Mello, executive director of the Los Alamos Study Group, said the city has since released a number of emails and that the group is waiting to see if it is withholding documents of particular interest until the last minute.
Mello said the group is happy with the judge’s decision but is frustrated that the situation had to rise to that level.
“It’s just a shame that it took so long and wasted city money when it doesn’t seem like there was any good reason for it,” he said.
