Previous plaintiff sues city again for alleged violations of state's public records law

Nov. 17—A month after reaching a $62,000 deal to settle two lawsuits alleging it had failed to fulfill public records requests, the city of Santa Fe faces a new complaint by the same plaintiff.

The suit filed Nov. 4 in state District Court by Santa Fe County resident Jared O'Shell alleges the city failed to provide records in response to 17 of his requests. It is one of a growing number of lawsuits accusing the city of violating the New Mexico Inspection of Public Records Act — and one of four filed recently.

In two similar cases, one brought by former Santa Fe police Officer Louis Carlos and another by the Los Alamos Study Group, the city has been ordered by a judge to hand over records.

Several plaintiffs and their attorneys said they believe the city has deliberately withheld public documents — an allegation the city denies.

O'Shell said the records requests cited in his new suit seek information on a variety of topics, including the city's relationship with nonprofit housing developer Homewise Inc. and how much money the city has spent on outside contractors, as well as emails from Public Utilities Director John Dupuis.

As part of the settlements last month — in which the city admitted no wrongdoing — O'Shell agreed not to pursue records in those cases any further.

His attorney, Ken Stalter — who filed his own lawsuit against the city over a request for records related to a contract — said he wasn't sure why the city hadn't responded to O'Shell's other outstanding requests after the settlement, considering he had demonstrated his willingness to sue.

"The longer the city takes [to respond], the more money they're going to owe at the end," he said.

Stalter also represents Daniel Ortiz of Santa Fe, who is suing the city over a request for records pertaining to the Plaza obelisk, known as the Soldiers' Monument.

A fourth plaintiff, Denise Coca, alleges in a recent lawsuit the city has not provided her with police records in the 2021 death of her sister, Joella Coca. According to a wrongful death lawsuit filed against the city last year, Santa Fe police were called to Joella Coca's home about a domestic disturbance involving her grandson but left shortly afterward without citing either of them. She died later that day of alcohol intoxication.

Efforts to increase records staff

City Attorney Erin McSherry, whose office oversees the Office of Records Custodians, provided The New Mexican with documents showing how staff responded to each of the requests. In some cases, a records custodian ultimately found no "responsive records." In other cases, custodians released some records or provided a link to a website where the records are posted publicly.

McSherry has pointed in the past to a high volume of records requests — seeking everything from police reports and dashboard camera videos to troves of emails between city officials — that has overburdened a small staff working on tight deadlines. The state law requires government agencies to provide most requested records within 15 days.

In the last couple of years, the city has "consolidated, cross-trained, and increased" staffing in the records office by over 150%, she wrote in an email last week. While the office previously had fewer than two full-time workers, it now has five and the help of several interns, she wrote, adding two employees started in July.

Even with the additional workers, McSherry wrote, the city's records staff is one-fifth the size of Albuquerque's, which receives a similar number of requests. She estimated Santa Fe will see a total of 10,800 records requests this year, compared to 13,000 in Albuquerque.

"The two new records specialists that started a couple of months [ago] are just getting going and assisting with reducing the current backlog," she wrote. "We are monitoring weekly requests and output numbers to evaluate the situation. It is also entirely possible that additional staff are warranted."

When IPRA Manager Katherine Garcia-Gallegos came on board, McSherry wrote, "I told her that right-sizing the Records Custodians team was the goal, and her evaluation of whether we needed generalists/specialists, etc. would be important for the City's future budget requests. It is ultimately up to the elected officials to appropriate funds for staff."

She also noted the city of Albuquerque receives about one to three lawsuits over records requests for every 1,000 requests it receives.

"Staffing does not get rid of lawsuits, necessarily," she told the City Council on Wednesday, as she addressed the recent lawsuits and presented data on records requests. "We certainly want to have fewer lawsuits about IPRA; some people are interested in suing the city, and that's just always going to be true."

McSherry said city records custodians work "extremely hard" to respond to requests. Some residents, she added, treat the employees "in a very rude manner." She shared a screenshot with The New Mexican of messages between a records custodian and O'Shell. It showed the employee had requested more information about " 'Area 1B,' such as an address or addresses."

O'Shell's response: "The 'City' knows damned well what Area 1b is since it just took Santa Fe County to court over it. Familiarize yourself with it and fulfill the request, please."

Area 1B is a reference to neighborhoods just outside Santa Fe's western boundary that have been set for annexation into the city for years. Residents petitioned to be added to the community of Agua Fría in Santa Fe County rather than have their properties annexed, and the County Commission voted in approval of the move. However, a judge ruled in favor of the city earlier this year in a legal case over the matter.

Responses to IPRA requests inconsistent?

O'Shell said in an interview some records requests he's submitted to the city have been fulfilled quickly, while others do not get a response, which makes him believe the city deliberately withholds certain records based on their content.

"I just have to wonder about the subject matter and why they choose to not release things," he said.

Ortiz's lawsuit centers on the description of the Soldiers' Monument on the city's website, which he claimed at one point named the obelisk the "American Indian War Memorial." A city records custodian found no record of such a change, according to documents McSherry provided.

It's not his first lawsuit against a government entity. Earlier this year, Ortiz agreed to a $22,500 settlement with the New Mexico Commission of Public Records and Archives and the State Records Center and Archives for a lawsuit he filed accusing State Historian Rob Martinez of violating his free speech rights by deleting critical comments from the historian's Facebook page.

Attorney Bill Russell is representing Virginia resident Denise Coca in her records suit as well as the wrongful death suit on behalf of her sister's estate. He said Denise Coca had requested documentation of any police calls to her sister's residence prior to the one that occurred before her death. The city provided some documents but later closed the request after Denise Coca did not respond to a question from a records custodian asking for more details about what she was seeking.

During the evidence-sharing process in the wrongful death lawsuit, Russell said, the city provided some additional records showing police had arrived at Joella Coca's home previously and had transported her to receive medical care.

Russell said the revelation was "emotionally devastating" to his client. He said he didn't know if the initial failure to release the documents was deliberate, but either way, it entitles his client to damages.

"I'm not sure whether it was gross negligence or intentional. ... The fact is that they were not produced and they should have been produced in accordance with that request," he said.

Information provided by McSherry shows the request was closed due to a lack of response from Denise Coca before Garcia-Gallegos joined the office, and "she is reopening it to provide the records."