BY MAIRE O’NEILL
It has been almost two years since former Los Alamos resident Patrick Brenner and his mother, Lisa Brenner filed a request under the state Inspection of Public Records Act for all emails sent and received by Los Alamos County Councilors May 15, 2017.
The emails in question pertained to an email sent by Patrick Brenner to the County Councilors concerning the May 2017 $23 million general bond election with the subject line, “You People Continue to Disgust Me”. Brenner filed suit against the County in June 2017 claiming that Council members provided some of the emails requested but that email sent from private email addresses and responses to those emails while performing public business were not provided to him.
In April 2018, then First Judicial District judge Greg Shaffer agreed to review emails sent from former ‘Councilor Susan O’Leary’s personal email account in camera to see if they were public record. In October 2018, Judge Shaffer ruled that all but two emails dated May 15, 2017 from O’Leary’s personal email account are not public records.
In October 2018, Brenner’s attorney Blair Dunn filed a motion for summary judgment stating that Judge Shaffer ruled two of O’Leary’s emails are public record meaning that they are not exempt from disclosure. The two emails involved were between O’Leary and the County Clerk’s office pertaining to the recreation bond election. Dunn maintained that public records not produced according to the law are considered improperly withheld and that IPRA had been violated as a matter of law.
The case was assigned to Judge Matthew Wilson after Judge Shafer was not elected in November. Los Alamos County challenged Judge Wilson and the case was then assigned to Judge Jason Lidyard before eventually reassigned to Judge Francis Mathew. In February both sides filed a motion for continuance of the Court-ordered settlement conference deadline.
A hearing on Dunn’s motion for summary judgment is on Judge Mathew’s calendar for Tuesday at 9:30 a.m. in Santa Fe. Although only the two O’Leary emails remain in question, the two parties seem to be far from closing the case. A request from Tony Ortiz, the attorney handling the case for Los Alamos County through the State Self-Insurers Fund, for a one-week extension of Tuesday’s hearing for dispositive motions under the current scheduling order drew the ire of Dunn who vehemently opposed the request.
Dunn then released emails between the two attorneys to the Los Alamos Reporter. In one email, Ortiz called Dunn’s withholding of the request for a short extension “unreasonable” and to let him know if he changed his mind.
Dunn responded with an email to Ortiz stating, ”I think your waste of the taxpayers money is unreasonable. This this case should be over; you are drawing it out, you’re wasting money that’s unreasonable and no, I’m not going to reconsider my position. You lack a good faith basis for requesting an extension so it’s not me being unreasonable to say no when you can’t provide any basis for why you need an extension other than the judge changed which happened months ago just like the scheduling order was put into place months ago and you failed to provide any sort of reason why you should have an extension. Have a great weekend.”
Dunn then released a request for discovery issued by Ortiz to Brenner calling it “discovery that Mr. Ortiz felt was appropriate to serve on a member of the public that requested records about what their government was up to”. Dunn also released records from the New Mexico Self-Insurer’s Fund indicating that as of Jan. 11, Ortiz’s firm had billed the fund for some $25,000 in fees while representing Los Alamos County.
Ortiz responded saying he will continue to focus his efforts on winning this case on the merits and that he will look forward to raising the matter of a simple extension with Judge Mathew Tuesday.
“We’ll see then who is wasting time,” Ortiz said.
Dunn then indicated that Los Alamos County Councilors, not their attorney should address spending $25,000 to continuing to try and win an IPRA case on the merits when the judge already said there were public records – O’Leary emails – involved that were not provided to Mr. Brenner, which constituted a violation of IPRA.
“Then let’s have your explanation for why you need an extension to waste more tax money when I tried to stop the bleeding last fall by trying to settle this case,” Dunn said. ”Let’s be honest here, you already settled one of the IPRA cases here with taxpayer money. Is it just that you have not billed enough time in this one? Or is the LACC directing you to keep wasting taxpayer money out of spite for Mr. Brenner, like the discovery you propounded. I think the public needs to hear the answer direct from the LACC.”
Dunn concluded by saying he is entitled to a motion for a continuance that he has a good faith basis for believing lacks any good faith reason on Ortiz’s part.
“You may not feel that you owe any duty to the public in the stewardship of their resources but I do, which probably at least part of why I have a Dixon award from (Foundation of Open Government) for my work in good government and you don’t,” Dunn said.
Ortiz told the Los Alamos Reporter Monday morning that public entities have the right to defend themselves when they believe claims against them lack merit. He said it is common practice for attorneys to extend the courtesy of agreeing to a continuance in a case when requested to.
Dunn told the Los Alamos Reporter Monday afternoon that he had offered to Ortiz in November to settle the case for his attorney’s fees only. Dunn said the County could owe some $51,000 to date in statutory fines under IPRA for the two O’Leary emails that were not released.
With respect to the information requested in an interrogatory sent by Ortiz to Brenner, Dunn’s response states that any information responsive to the request that could possibly be considered relevant was provided to in the original IPRA request. He objects that the interrogatory is “is overbroad, burdensome, abusive, intended to harass and not intended to lead to the discovery of admissible and/or relevant information.” The interrogatory includes requests for information on every job Brenner has held in the past 20 years along with rates of pay and reasons for termination. It also seeks extensive information on Brenner’s education.