1. A. Unless a written request has been determined to be excessively burdensome or broad, a written request for inspection of public records that has not been permitted within fifteen days of receipt by the office of the custodian may be deemed denied. The person requesting the public records may pursue the remedies provided in the Inspection of Public Records Act.

2. B. If a written request has been denied, the custodian shall provide the requester with a written explanation of the denial. The written denial shall:

   1. (1) describe the records sought;
   2. (2) set forth the names and titles or positions of each person responsible for the denial; and
   3. (3) be delivered or mailed to the person requesting the records within fifteen days after the request for inspection was received.

3. C. A custodian who does not deliver or mail a written explanation of denial within fifteen days after receipt of a written request for inspection is subject to an action to enforce the provisions of the Inspection of Public Records Act and the requester may be awarded damages. Damages shall:

   1. (1) be awarded if the failure to provide a timely explanation of denial is determined to be unreasonable;
   2. (2) not exceed one hundred dollars ($100) per day;
   3. (3) accrue from the day the public body is in noncompliance until a written denial is issued; and
   4. (4) be payable from the funds of the public body.

History: Laws 1993, ch. 258, § 8.

ANNOTATIONS

In camera review. — When a public entity seeks to withhold public records, in camera review is most efficient, if not imperative. The public entity must designate the sealed records for review by the court. Board of Comm'rs v. Las Cruces Sun-News, 2003-NMCA-102, 134 N.M. 283, 76 P.3d 36.

County not permitted to circumvent established procedure of in camera review. — Where a county sought to circumvent the procedure outlined in State ex rel. Newsome v. Alarid, 1977-NMSC-076, 90 N.M. 790, 568 P.2d 1236, for in camera review of disputed documents by filing a motion for a protective order and asserting to the district court that it could only consider the settlement records if the motion for protective order was granted, the county’s decision to bypass established procedure effectively obstructed full review by the district court and the court of appeals and the district court did not abuse its discretion in denying the motion for protective order. Board of Comm’rs v. Las Cruces Sun-News, 2003-NMCA-102, 134 N.M. 283, 76 P.3d 36.

The threshold requirements for an in camera inspection are that the custodian of the records must first determine whether the person requesting disclosure is a citizen and whether the request is for a lawful purpose; second, the custodian must justify why the records should not be furnished. State ex rel. Blanchard v. City Comm'rs, 1988-NMCA-008, 106 N.M. 769, 750 P.2d 469.

Justification for refusing to release records. — Fact that information was obtained under a promise of confidentiality, standing alone, would not suffice to preclude disclosure. The promise would have to coincide with reasonable justification, based on public policy, for refusing to release the records. Furthermore, the justification would have to be articulated by the custodian for the record. State ex rel. Newsome v. Alarid, 1977-NMSC-076, 90 N.M. 790, 568 P.2d 1236.

Duty of custodian to determine whether information can be justifiably withheld. — There may be circumstances under which the information contained in the record can be justifiably withheld. The custodian has the initial duty to make this determination as to each record requested. He must first determine that the person requesting access is a citizen and that he is requesting the information for a lawful purpose. The burden is upon the custodian to justify why the records sought to be examined should not be furnished. It shall then be the court's duty to determine whether the explanation of the custodian is reasonable and to weigh the benefits to be derived from nondisclosure against the harm which may result if the records are not made available. State ex rel. Newsome v. Alarid, 1977-NMSC-076, 90 N.M. 790, 568 P.2d 1236.

The attorney general failed to establish a prima facie case for summary judgment on the inspection of public records exception for attorney-client privilege, as extended by the common interest doctrine. — Where plaintiff requested inspection of common interest agreements entered into by the New Mexico office of the attorney general (OAG) with other states' offices of the attorney general, as well as correspondence and emails relating to the formation of these agreements, and where the OAG responded to the requests by withholding some responsive documents altogether, without disclosing that any documents were being withheld, producing some documents with all but a "privileged or confidential" stamp redacted, and producing other documents with multiple lengthy redactions, claiming that the redactions were supported by the Inspection of Public Records Act (IPRA) exception for law enforcement records or because the redactions constituted confidential attorney-client communications and protected attorney work-product, and where plaintiff challenged both the withholding of some documents and the heavy redaction of the documents provided, claiming that none of the cited IPRA exceptions supported the denial of responsive information, and where the OAG filed a motion for summary judgment arguing that its blanket assertion of attorney-client privilege and/or work-product, together with its assertion of good faith, established a prima facie case justifying the denial of inspection of unidentified, withheld documents, as well as the redactions it made on the documents that were produced, the district court erred in granting the OAG's motion for summary judgment, because the OAG failed to establish a prima facie case for summary judgment on either the IPRA exception for attorney-client privilege, as extended by the common interest doctrine, or the catchall exception for attorney work-product. A generalized assertion of privilege or immunity, even if the public agency asserts the privilege or immunity in good faith, is not sufficient to establish a prima facie case of compliance with IPRA supporting summary judgment. Energy Pol'y Advoc. v. Balderas, 2024-NMCA-081.

Denial of request to review applications for position of city manager. — A municipality’s denial of a request to inspect applications received by the municipality for the position of city manager on the grounds that disclosure of the applications would deter potential applicants and reduce the quality and scope of the applicant pool was insufficient, under the rule of reason, to outweigh the public’s interest in disclosure. City of Farmington v. The Daily Times, 2009-NMCA-057, 146 N.M. 349, 210 P.3d 246.

The Inspection of Public Records Act provides for two separate remedies. — This section and 14-2-12 NMSA 1978 create separate remedies depending on the stage of the Inspection of Public Records Act (IPRA) request. This section requires a public entity to respond to a records request within fifteen days unless the request has been determined to be excessively burdensome or broad. If the request is denied, the custodian shall provide the requester with a written explanation of the denial. It is when the custodian fails to respond to a request or deliver a written explanation of the denial that the public entity is subject to damages pursuant to this section. The enforcement and damages provisions of 14-2-12 NMSA 1978 apply in an action for the post-denial enforcement of the IPRA request. Faber v. King, 2015-NMSC-015, rev’g 2013-NMCA-080, 306 P.3d 519.

Where the attorney general’s office received a request for public records pursuant to the Inspection of Public Records Act (IPRA) and denied the request the next day, damages pursuant to this section were not applicable because the attorney general’s office timely answered the request with a denial by following the denial procedures set out in this section. When the district court held that the attorney general’s office wrongfully withheld the public records, the enforcement and damages provisions of 14-2-12(D) NMSA 1978 applied. Faber v. King, 2015-NMSC-015, rev’g 2013-NMCA-080, 306 P.3d 519.

Separate remedies distinguished. — Section 14-2-11 NMSA 1978 is focused on deterring nonresponsiveness and noncompliance by public bodies in the first instance, while 14-2-12 NMSA 1978 is focused on making whole a person who, believing his or her right of inspection has been impermissibly denied, brings a successful enforcement action. Britton v. Office of the Att’y Gen., 2019-NMCA-002.

Incomplete or inadequate responses to IPRA requests. — Where plaintiff made a request for documents from the Attorney General’s Office (AGO) pursuant to the Inspection of Public Records Act, §§ 14-2-1 to -12 NMSA 1978, and where the AGO incompletely and inadequately responded to the request, the district court erred in concluding that plaintiff’s action is exclusively one that proceeds under 14-2-12 NMSA 1978 and limiting the damages plaintiff can recover to actual damages under Subsection D of that provision, because a public body that permits only partial inspection, that is inspection of some but not all nonexempt responsive records, has not complied with its obligation to provide the greatest possible information regarding the affairs of government. Britton v. Office of the Att’y Gen., 2019-NMCA-002.

Remedy for inadequate response to IPRA request. — Where plaintiff made a request for documents from the Attorney General’s Office (AGO) pursuant to the Inspection of Public Records Act, §§ 14-2-1 to -12 NMSA 1978, and where the AGO failed to permit inspection of approximately 350 records that were responsive to plaintiff’s request and for which no claim of exemption was ever asserted or written explanation of denial issued, the district court erred in concluding that plaintiff’s action is exclusively one that proceeds under 14-2-12 NMSA 1978 and limiting the damages plaintiff can recover to actual damages under Subsection D of that provision, because the AGO’s failure to either produce for inspection or deliver or mail a written explanation of denial regarding the 350 documents is the type of wrong that 14-2-11 NMSA 1978’s statutory penalty seeks to remedy. Britton v. Office of the Att’y Gen., 2019-NMCA-002.

Statutory damages were appropriate where denial of public records request was unreasonable. — Where defendants received various IPRA requests from plaintiffs regarding the abrupt and premature resignation of the superintendent of Albuquerque public schools in late August and early September 2014, and where defendants' responses to these requests were beyond IPRA's fifteen-day response deadline and where, during litigation in the matter, an interlocutory appeal took over 1200 days during which statutory damages accrued under 14-2-11(C) NMSA 1978, the district court did not err in awarding over $400,000 in statutory damages, because a court may still award statutory damages after a written denial is issued if the denial is deemed unreasonable, and defendants in this case were deemed out of compliance with IPRA regarding several of the requests they received up to the date of trial because their written denials were unreasonable. Albuquerque Journal v. Bd. of Educ. of APS, 2025-NMCA-020, cert. granted.

Pleading an action for enforcement of IPRA against a private entity. — To plead an action for enforcement of the Inspection of Public Records Act (IPRA), 14-2-1 to 14-2-12 NMSA 1978, against a private entity, a plaintiff must simply allege that the records sought are public records arising out of the private entity's performance of a public function and that the private entity has failed to comply with IPRA via the manner outlined in either 14-2-11(C) NMSA 1978 or 14-2-12(D) NMSA 1978. Franklin v. Keefe Commissary Network, 2024-NMCA-070.

Records arising out of a private entity's performance of a public function and on behalf of a public entity are subject to IPRA. — Where plaintiff, a state inmate, requested records regarding commissary prices for state prisoners, pursuant to the New Mexico Inspection of Public Records Act (IPRA), 14-2-1 to 14-2-12 NMSA 1978, from defendant, a private corporation contracting with the New Mexico corrections department (NMCD) to operate an inmate commissary program at New Mexico state facilities, based on plaintiff's belief that prices were not set at fair market value, and where, upon receiving no response from defendant, plaintiff filed a complaint to enforce IPRA, and where defendant filed a pretrial motion to dismiss, arguing that defendant was not subject to IPRA because it is a private entity, the district court erred in granting defendant's motion to dismiss, because the records sought were public records arising out of defendant's performance of a public function and on behalf of a public entity. Plaintiff established under the facts of the complaint that defendant may be subject to IPRA. Franklin v. Keefe Commissary Network, 2024-NMCA-070.

The Electronic Communications Privacy Act is not an exception to disclosure of public records. — Where the state ethics commission (commission) sent a public records request to the New Mexico human services department [health care authority department] (department), asking the department to provide copies of certain emails from several named employees, and where the department denied the request claiming that the Electronic Communications Privacy Act (ECPA), NMSA 1978, § 10-16F-1 to -6, operates as an exception to disclosure through the Inspection of Public Records Act (IPRA), NMSA 1978, §§ 14-2-1 to -12, because the commission may obtain the requested records through a subpoena, the department erred in denying the commission’s public records request, because the commission’s ability to obtain pubic records through a subpoena does not mean that it is unable to seek the same records through IPRA, and nothing in the ECPA’s text suggests that the legislature intended the statute to operate as an exception to disclosure through IPRA. Public Records Requests Made by the State Ethics Comm’n (10/27/21), Att’y Gen. Adv. Ltr. 2021-12.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 37A Am. Jur. 2d Freedom of Information Acts § 443 et seq.

What are "records" of agency which must be made available under Freedom of Information Act (5 USCA § 552(a)(3)), 153 A.L.R. Fed. 571.