FOREWORD

New Mexico, the "Sunshine State," has historically provided a hospitable climate for open government.

In 1993, because of the efforts of the New Mexico Press Association and the New Mexico Foundation for Open Government, the Legislature enacted some significant improvements to the Inspection of Public Records Act. The 1993 legislation provides a broad definition of public records to include virtually all documents or information "regardless of physical form or characteristics that are used, created, received, maintained, or held by or on behalf of any public body and relate to public business, whether or not the records are required by law to be created or maintained." §14-2-6(E), NMSA 1978.

The 1993 amendments (§14-2-5) created both a significant presumption that all records are public, and that access to public records is an essential part of the duties of public officers and employees:

Recognizing that a representative government is dependent upon an informed electorate, the intent of the legislature in enacting the Inspection of Public Records Act is to ensure, and it is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of public officers and employees. It is the further intent of the legislature, and it is declared to be the public policy of this state, that to provide persons with such information is an essential function of a representative government and an integral part of the routine duties of public officers and employees.

The same legislation created procedures similar to the federal Freedom of Information Act. For example, generally a public official (custodian of the records) must respond to a written request within three (3) business days. §14-2-8(D), NMSA 1978.

The improvements in both the open records and open meetings provisions in New Mexico law can be traced in large part to a private organization called the New Mexico Foundation for Open Government, known as FOG. This organization, although receiving most of its funding from media organizations, has broad public membership. FOG has been aggressive in supporting requests for public records through educational seminars, letters to public officials, and litigation. FOG's Executive Director is Sarah Welsh. FOG can be contacted as follows: New Mexico Foundation for Open Government Inc., 115 Gold Avenue SW, Suite 201, Albuquerque, NM 87102, telephone 888-843-9121, local telephone 505-764-3750, telefax 505-764-3711.

The New Mexico Attorney General publishes compliance guides for New Mexico, and copies are available from the Attorney General's office: Civil Division, Office of the Attorney General, State of New Mexico, Bataan Memorial Building, P.O. Drawer 1508, Santa Fe, New Mexico 87504-1508, telephone 505-827-6070. The guides provide analyses of the statutes with examples and some form letters. The New Mexico Press Association and FOG drafted portions of the commentary and the appendices to the guides which contain analyses of the Acts, deadlines applicable to the Acts and form letters to request public records.

History of New Mexico Open Records Law: Even in the absence of statutory provisions, the common law right of access, to inspect at least some public records, has been recognized in New Mexico since at least 1925. See 1925-26 N.M. Op. Att'y Gen. 10 ("House journal and bills are public records and should be open to public inspection at reasonable hours.").

No appellate court decision defined the right of common law access until passage of the state's first Open Records Law, in 1947. The law limited access to "citizens," contained a few exceptions, no definition of what constituted a public record; the 1947 Act did provide a penalty, including a possible jail term for violations.

In 1973, additional exceptions to the right of inspection were added. In 1993, the Legislature created a private right of action allowing prevailing citizens to collect court costs, damages, and attorneys' fees, but deleted the fines and imprisonment penalties. The 1993 overhaul was significant, establishing procedures similar to those of the Federal Freedom of Information Act, and a presumption that all records are public.  The 2011 amendments include a requirement that records custodians respond to a public records request in the same medium in which they receive the request (electronic or paper). §14-2-7(B).  Additionally, if the public record is available in electronic format and is requested in an electronic format the public body must provide it to the requester in an electronic format §14-2-9(B).  Public bodies may charge a requester actual costs of downloading copies of public records to a storage device and the actual cost of the storage device. §14-2-9(C).  Public bodies are required to post a notice informing the public of the right to inspect records and the procedures for copying and inspecting records on the publically accessible website with contact information for the public records custodian. §14-2-7(E).  Finally, in 2011 the legislature included a new section on “protected personal identifier information” §14-2-1(B).  Public bodies may redact “protected personal identifier information” before providing a public record.  “Protected personal identifier information” is defined as: (1) a social security number; (2) all but the year of a person’s birth date; (3) all but the last four digits of a taxpayer identification number, financial account number or driver license number. §14-2-6(E).

Open Meetings: The New Mexico Open Meetings Act is contained at §10-15-1 through §10-15-4, NMSA 1978. The first Open Meetings Act was enacted in 1959 and significant amendments were added in 1993. The provisions added in 1993 include a section just like the Inspection of Public Records Act, creating a presumption that meetings should be open:

In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them. The formation of public policy or the conduct of business by vote shall not be conducted in closed meeting. All meetings of any public body except the legislature and the courts shall be public meetings and all persons so desiring shall be permitted to attend and listen to the deliberations of proceedings. Reasonable efforts shall be made to accommodate the use of audio and video recording devices.

The 1993 changes also require: 1) agendas; 2) minutes, including a statement that any closed session was limited to the subject announced in the motion or notice of closure; and 3) strict procedures for telephone conference meetings.

In 1997 NMPA and FOG successfully pushed an important amendment to provide some teeth for the formerly toothless enforcement provision. The 1997 amendment provided for a mandatory award of costs and reasonable fees to a successful plaintiff in a suit to enforce the Open Meetings Act.

NMPA and FOG efforts to open up the secret legislative conferences were partially successful. An amendment to the Open Meeting Act in 2009 provides that “all meetings of any committee or policy-making body of the legislature held for the purpose of taking any action within the authority…of the body are declared to be public meetings open to the public at all times…” §10-15-2, NMSA 2009.

The New Mexico Attorney General's office has published the Seventh Edition of the Open Meeting Act Compliance Guide. This guide includes all amendments to the Act passed during the 2009 legislative session. Copies are available from the Civil Division of the Office of the Attorney General, State of New Mexico, Post Office Drawer 1508, Santa Fe, New Mexico 87504-1508.

The New Mexico Foundation for Open Government (FOG) has been particularly active in pursuing compliance with the Open Meetings Act. Seminars, expert testimony and analysis, and the occasional lawsuit have resulted in a much better environment for open government in New Mexico. For additional information, contact FOG's Executive Director, Sarah Welsh, New Mexico Foundation for Open Government Inc., 115 Gold Avenue SW, Suite 201, Albuquerque, NM 87102, telephone 888-843-9121, local telephone 505-764-3750, telefax 505-764-3711.