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.

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) describe the records sought;

(2) set forth the names and titles or positions of each person responsible for the denial; and

(3) be delivered or mailed to the person requesting the records within fifteen days after the request for inspection was received.

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) be awarded if the failure to provide a timely explanation of denial is determined to be unreasonable;

(2) not exceed one hundred dollars ($100) per day;

(3) accrue from the day the public body is in noncompliance until a written denial is issued; and

(4) be payable from the funds of the public body.

History: Laws 1993, ch. 258, § 8.

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.

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.

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.