Judge Denies Summary Judgment In Brenner Suit, Case Not Over

IMG_1483 (2).jpgFirst Judicial Distric Judge Francis Mathew listens to argument from attorney Tony Ortiz, standing, on behalf of Los Alamos County Tuesday in Santa Fe. Photo by Maire O’Neill/losalamosreporter.com


First Judicial District Judge Francis Mathew denied a motion for summary judgment Tuesday in Santa Fe filed by attorney Blair Dunn on behalf of Patrick Brenner in two-year old lawsuit against Los Alamos County under the Inspection of Public Records Act.

(For background on this case, see https://losalamosreporter.com/2019/05/06/battle-continues-tuesday-in-brenner-ipra-lawsuit-against-county/

After listening at length to Dunn and attorney Tony Ortiz who represents the County through the New Mexico Self Insurers Fund, Judge Mathew said for Tuesday morning he was denying the motion. He told the attorneys that he could still accommodate the case with an August setting which would put it in the same time frame as the original scheduling order issued by former Judge Greg Shaffer in the case. Ortiz and Dunn are to work out a date for dispositive motions prior to trial and notify Judge Mathew.

Dunn earlier told the Court that Judge Shaffer had ordered that the emails in question sent from Councilor’s personal email account were very clearly public documents which were not provided to Brenner when the County made it’s presentation under the IPRA request. He said as a matter of law the County did not comply with the IPRA which is the crux of his motion for summary judgment.

Dunn maintained he and Brenner have established that there was a violation of law under New Mexico jurisprudence and that at least in part their motion for summary judgment should be granted. He conceded that when it comes to the reasonableness of the action of the County, there may still very well be a question of fact but directed the Court to his brief that indicated that while not required to, the County’s Custodian of Records asked Councilors for emails they might have related to County business on their private email accounts.

“IPRA deals with whether the public body did a reasonable search, not just the records custodian.  So there is a duty on those Councilors as members of that public body when the request comes to them to do a reasonable search,” Dunn said.

He said Councilor O’Leary looked through her emails and without providing a denial or a response that could be provided to Brenner, just ignored the request for those records.

“His email said very clearly, ‘I want every email from every Councilor for this day’. That very clearly is with reasonably particularity – asking for all that qualified regardless of where they are,” he said.

Dunn said the question isn’t just whether the County’s records custodian acted reasonably but that it’s going to have to be whether or not Councilor O’Leary’s response to the request was reasonable.

“That’s something that this Court is going to have to get to. We’re probably going to have to have more discovery to get to that fact,” he said. He said no matter what, Brenner is going to entitled to attorneys’ fees and costs, that there’s enough evidence in front of the Court that’s not in dispute to say that he is entitled to those fees and costs. Dunn said the records custodian made the request for all emails to the Councilors.

“She clearly knew what Brenner was asking for. The fact that the County Councilor didn’t respond to that doesn’t mean they didn’t know what she was looking for. They just decided not to give it to him. They knew what he was asking for. There wasn’t a denial. They just failed to give them to him,” Dunn said.

In response Ortiz said he believed Dunn is getting ahead of himself.

“I believe this is a motion for summary judgment and at the end of the day it is (Dunn’s) obligation under this motion to demonstrate that there are no disputed issues of material fact. It’s the only way this motion succeeds or this Court has to reject it,” Ortiz said.

He said two affidavits from O’Leary and the records custodian outlined their reasons for their actions, why they thought what they thought, why they responded the way they responded and what they believed was correct.

“I believe in alignment with what the law permits and outlines if nothing else there are at least disputed issues of material fact as to whether or not the actions they took were in compliance with the law. Mr. Dunn has had an opportunity to depose anybody he wanted to but right now what he’s got is two undisputed affidavits that create issues of material fact,” Ortiz said.

Ortiz said looking at Judge Shaffer’s October ruling, the former judge was asked to do an in camera review of the documentation in the case trying to see if there was a short way to resolve the matter.

“He went through all the documents and found two things – two documents. What he said – he provided a clue to what the material facts are in this case. He said he was not making a finding that the emails were responsive to the request or should have been responsive to the request or that there was an inadequate search or that there was a duty. He’s simply saying, ‘We found these two, they are public records but I’m not making any findings as to whether or not there was a violation here,” he said.

Ortiz said having established that Judge Shaffer’s ruling doesn’t give Dunn what he thinks it does, he was going to turn to other things that Dunn is glossing over.

“In our brief we argued that the request itself was insufficient to trigger the search of private emails. IPRA says the request has to be made with reasonability particularity. The attorney general’s guide goes on to say the request should be sufficient to enable the custodian to identify and find the requested record. What Mr. Dunn is saying to the Court is give us every email from every Councilor and that ought to cover it all,” Ortiz said. “What we have in New Mexico and what Mr. Dunn didn’t talk to you about nor did he address in his briefing was Santa Fe Reporter vs Gov. Susanna Martinez. In that case one of the things that gave rise to the duty to search private emails was the request itself was deemed to seek private email data with particularity.”

He said the request for records in that case outlined where the emails were to come from.

“The problem is he is saying all you have to say is ‘every email’ and what that means in his mind and what this Court would be advocating if agreeing, is to the opening of a floodgate. Does this mean now that any request for emails to a government entity means that it is now the custodian of records’ obligation to go to every employee and say ‘how many Yahoo addresses do you have? How many Apple email addresses do you have? You’ve got to generate for me a list of all of your emails in every situation like that. It would multiply times 10 the already overburdened work of custodians of records in reviewing these kinds of things.”

Ortiz discussed the reasonableness issue which he said extends into what the custodian of records did in the case. He said the custodian’s affidavit says she would not have considered the two emails from O’Leary to be County business even if they had been flagged at the time because they were sent pursuant to O’Leary’s role as an officer in a PAC, not in her role as a County Councilor.

“It may be that the Court would find that this was close enough to County business, but today we have a disputed issue of material fact in an affidavit that completely defeats a motion for summary judgment on this issue. In the end, the plaintiff’s position would create an assumption that every request for emails requires a search of all employee private accounts and what we’ve been left with here is a list of issues of material fact; O’Leary’s emails – were they or were they not public business pursuant to her role as a County Councilor? What was the reasonableness in the extent of her search? Whether the request reasonably could be read to include all personal emails. Under the standards for summary judgment we’ve got a list of material facts that would reject the motion for today and move us into the next steps associated with the trial in this matter,” Ortiz said.

He asked the Court to move on to setting up a scheduling order saying that Dunn’s motion “is presuming much, ignoring much and failing under the standards for summary judgment”.

Dunn said he was a little confused because it appeared the defendants are now going to quibble with Judge Shaffer that the two emails are public documents. He said the fact that they are public records is indisputable at this point.  He said his understanding of the English language is that “every” includes both private and public.

“It was so reasonably particular that they knew to ask the Councilors for their private emails. To say now that there’s a genuine dispute of material fact would be completely in opposition to what they’ve admitted in their responsive brief and contrary to the law and plain English when you get down to it,” he said.