A-1-CA-38060 | Omnilex

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: Court of Appeals of New Mexico

Filed 6/29/2022 11:01 AM

Filing Date: June 29, 2022 ffir
No. A-1-CA-38060 ' Mark Reynolds

BRYCE FRANKLIN,

Plaintiff-Appellant,
Vv.

NEW MEXICO DEPARTMENT OF
PUBLIC SAFETY and REGINA CHACON,

Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Matthew J. Wilson, District Judge

Bryce Franklin
Las Cruces, NM

Pro Se Appellant

Keitha A. Leonard
Santa Fe, NM

for Appellees

OPINION
WRAY, Judge.
a3} Plaintiff Bryce Franklin appeals from the district court’s order granting
summary judgment in favor of Defendants New Mexico Department of Public
Safety (DPS) and Regina Chacon and from the district court’s order denying
Plaintiff's motion to reconsider. Plaintiff raises a matter of first impression and
contends that Defendants failed to provide a proper and reasonable opportunity to
inspect public records, as required by the Inspection of Public Records Act (IPRA),
NMSA 1978 §§ 14-2-1 to -12 (1947, as amended through 2019"). Because we agree
that Defendants’ response to Plaintiff's IPRA request was not reasonable under the
circumstances, we reverse and remand for further proceedings.
BACKGROUND
23} At the time he filed his complaint, Plaintiff was a prisoner at the Penitentiary
of New Mexico (PNM), serving a life sentence. In his initial request, Plaintiff sought

“to inspect” from Defendants itemized public records connected to the investigation

'The version of IPRA in effect at the time Plaintiff made his IPRA request
was last amended in 2013. Because the provisions of IPRA relevant to this appeal
are the same in both versions, our analysis remains the same under the previous and
the current versions of IPRA. Accordingly, this opinion refers to the current version
of the statute.

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and prosecution that led to Plaintiff’s murder conviction. Plaintiff’s handwritten
IPRA request stated,

Inspection will have to occur at the penitentiary of New Mexico 4311

State highway 14 Santa fe, New Mexico. Upon inspection I require

copies of those records at which time I will specify which pages I wish

to obtain.”
Defendants noted the request as “received” and later, by separate communication,
informed Plaintiff, “Your IPRA requested Incident Report is ready. Please remit the
[t]otal below so that we may mail it to you.” The invoice (First Response) totaled
$89.75. Plaintiffs written response restated that his request had specifically sought
to first inspect the records and then determine which pages he wanted to have copied

and asked Defendants to

please make available to me the forementioned records: at PNM 4311
state highway 14 Santa fe, NM 87504.

Defendants replied (Second Response) that physical inspection of the records was
available at the DPS office during business hours, with advance notice to ensure

proper staffing.

*In the district court, Plaintiff substituted the original IPRA request exhibit
that had been attached to the complaint with an amended exhibit, which includes
additional language, “Inspection will have to occur at the penitentiary of New
Mexico 4311 State highway 14 Santa Fe, New Mexico.” Defendants did not object
to the amended exhibit or make any argument that the amended exhibit differed from
the IPRA request originally received. We therefore refer to the amended exhibit.

33 After receiving Defendants’ Second Response, Plaintiff initiated this litigation
and alleged that Defendants unreasonably failed to make responsive documents
available to Plaintiff and thus violated IPRA. The district court held a hearing, made
findings, and granted summary judgment to Defendants from the bench. The
subsequent order reflected the district court’s oral rulings. The district court first
concluded that Defendants’ First Response, requesting payment for copies, did not
violate IPRA. The district court next determined that Defendants had a duty “to
provide reasonable access” to inspect records and that due to security and staffing
concems, Defendants “provided reasonable access for physical inspection of public
records by allowing physical inspection of the records at the DPS offices.” After the
hearing (but before the district court entered the order), Plaintiff filed a motion to
reconsider and sought to amend the complaint to include claims for statutory and
constitutional violations. The district court denied Plaintiff’s motion to reconsider,
and he appealed.

DISCUSSION

4 IPRA requires public records custodians to “provide proper and reasonable
opportunities to inspect public records.” Section 14-2-7(C). Plaintiff asserts that the

district court improperly granted summary judgment because Defendants failed to

provide a proper and reasonable opportunity to inspect.* The facts are undisputed.
This appeal therefore requires us to evaluate de novo the district court’s grant of
summary judgment, the statutory requirements for the production of public records
under IPRA, and the application of those requirements to the undisputed facts in the
present case. See Dunn v. N.M. Dep't of Game & Fish, 2020-NMCA-026, ¥ 3, 464
P.3d 129 (noting that this Court reviews de novo disputes that require us to “construe
the statute and apply the relevant case law to undisputed facts”); Cox v. N.M. Dep’t
of Pub. Safety, 2010-NMCA-096, 4 4, 148 N.M. 934, 242 P.3d 501 (observing that
“Tajn appeal from the grant of a motion for summary judgment presents a question
of law and is reviewed de novo” and “[t]he meaning of language used 1n a statute is
a question of law that we review de novo” (internal quotation marks and citations
omitted)). We must “construe IPRA in light of its purpose and interpret it to mean
what the Legislature intended it to mean, and to accomplish the ends sought to be
accomplished by it.” Britton v. Off. of Att’y Gen., 2019-NMCA-002, § 27, 433 P.3d
320 (internal quotation marks and citation omitted). To discern legislative intent,

“we look first to the plain language of the statute, giving the words their ordinary

3Because we agree that Defendants violated IPRA, we need not address
Plaintiff's arguments that Defendants’ IPRA responses violated equal protection
principles, were discriminatory against indigent and immobile citizens, and violated
federal law.

meaning, unless the Legislature indicates a different one was intended.” Dunn, 2020-
NMCA-026, 4 3 (internal quotation marks and citation omitted). Thus, before we
evaluate Defendants First and Second Responses, we begin by considering IPRA’s
statutory framework.

5} The purpose of IPRA “is to ensure . . . that all persons are entitled to the
greatest possible information regarding the affairs of government and the official
acts of public officers and employees.” Section 14-2-5. IPRA affirmatively sets forth
that “[e]very person has a right to inspect public records of this state,” unless an
explicitly identified exception applies. Section 14-2-1. A records custodian has a
number of duties, including to “provide proper and reasonable opportunities to
inspect public records.” Section 14-2-7(C). In the present case, the parties do not
dispute that the requested records are “public records of this state’ as set forth in
Section 14-2-1, and Defendants do not argue that an exception relieves them of the
obligation to provide a proper and reasonable opportunity to inspect. The only issue
is whether the opportunity to inspect that Defendants provided was “proper” and
“reasonable,” as required by IPRA’s terms.

{6} | IPRA defines neither “proper” nor “reasonable,” nor have New Mexico courts
previously considered the meaning of these terms in the context of Section 14-2-
7(C). “Our basic task when interpreting any statute, of course, is to give effect to the

[L]egislature’s intent.” State v. Fellhauer, 1997-NMCA-064, J 4, 123 N.M. 476, 943

P.2d 123. When the statute itself provides little “from which we can draw any
definitive conclusion” to assist our interpretation, we turn to the “commonly
accepted plain meaning” of statutory terms to fulfill our obligation to effectuate the
Legislature’s intent. /d. We therefore consider the commonly accepted plain
meaning of “proper” and “reasonable,” beginning with “reasonable.”

{3 | Theterm “reasonable” is defined by Black ’s Law Dictionary as “[flair, proper,
or moderate under the circumstances.” Reasonable, Black’s Law Dictionary (11th
ed. 2019). In many contexts, New Mexico courts and the Legislature have applied
an objective, under-the-circumstances approach to the term “reasonable.” See, e.g.,
Rodriguez v. Del Sol Shopping Ctr. Assocs., L.P., 2014-NMSC-014, 9 1, 15, 326
P.3d 465 (observing that in the tort context, “whether the plaintiffs expect too much
of the defendants—something more than what is reasonable—which is relevant to
the issue of breach of duty” is a question for a jury); A/buquerque Bernalillo Cnty.
Water Utility Auth. v. N.M. Pub. Reg. Comm’n, 2010-NMSC-013, § 28, 148 N.M.
21,229 P.3d 494 (explaining that due process contemplates notice “and a reasonable
opportunity” to meet the opposing party’s claims and “[t]hus, due process is flexible
in nature and may adhere to such requisite procedural protections as the particular
situation demands” (internal quotation marks and citations omitted)); State v. Sewell,
2009-NMSC-033, 4 13, 146 N.M. 428, 211 P.3d 885 (evaluating the constitutionality

of an investigatory stop, “considering the totality of the circumstances” to determine

whether “the officers have a reasonable and objective basis” to suspect criminal
activity (internal quotation marks and citation omitted)); State v. Munoz, 1998-
NMSC-048, 4 40, 126 N.M. 535, 972 P.2d 847 (outlining an objective test to
evaluate whether an interrogation was custodial, disregarding “the actual subjective
beliefs of the defendant” and focusing on whether “a reasonable person would
believe” they were free to leave, as well as the “relatively important” factual
circumstances (internal quotation marks and citation omitted)); Leyba v. Whitley,
1995-NMSC-066, 4 28, 120 N.M. 768, 907 P.2d 172 (“As always, what is reasonable
is a question of fact to be determined in light of all the surrounding circumstances.’’);
Martinez v. Showa Denko, K.K., 1998-NMCA-111, 9 25, 125 N.M. 615, 964 P.2d
176 (considering the information available to determine as a matter of law that the
plaintiff had sufficient information to “put a reasonable person on notice”); see also
NMSA 1978, § 55-1-205(a) (2005) (defining “reasonable time” under the Uniform
Commercial Code to depend “on the nature, purpose and circumstances of the
action”); UJI 13-1603 NMRA (describing “ordinary care” as that “which a
reasonably prudent person would use in the conduct of the person’s own affairs” and
noting that “[w]hat constitutes ‘ordinary care’ varies with the nature of what is being
done’). We see no reason—and have been offered none—to depart from the
generally accepted view of “reasonable” as an objective test that considers all of the

facts and circumstances.

833 Theterm “proper,” however, has escaped definition or consistent usage in our
case law. Plaintiff suggests a definition of “proper” as “marked by suitability,
rightness or appropriateness.” See Proper, Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/proper (last visited June 15, 2022),
This definition, however, bears such a similarity to the accepted definition of
reasonableness that the term “proper” would be rendered superfluous. We do not
construe statutes to render their terms superfluous. See State v. Vest, 2021-NMSC-
020, 4 18, 488 P.3d 626. An alternative definition of “proper,” however, is “[s]trictly
pertinent or applicable; exact; correct.” Proper, Black’s Law Dictionary (11th ed.
2019). Applying this definition to IPRA, in order to be “applicable” or “correct,” an
action must be contemplated by the terms of IPRA and its purposes. In other words,
a commonly accepted plain meaning of “proper” entails conformity with those
provisions of IPRA that guide a records custodian’s actions. See, e.g., § 14-2-7(D)
(requiring records custodians to “provide reasonable facilities”); § 14-2-9(C)
(permitting records custodians to charge reasonable fees).

9} Plaintiff argues that each of Defendants’ two responses to his IPRA request
was neither proper nor reasonable. We consider each of Defendants’ responses in

turn.

The First Response

(103 ~=Plaintiff first argues that Defendants’ First Response was improper and
unreasonable because he requested to inspect the documents before selecting those
that he wished to copy and Defendants simply sent him an invoice for copies. We
disagree. Beginning our analysis with “proper,” Section 14-2-9(C)(1) states that “[a]
custodian . . . may charge reasonable fees for copying public records.” (Emphasis
added.) The permissive nature of Section 14-2-9(C)(1) permits a records custodian
to either charge fees for copies or not to charge fees. Both are permitted by the
statute. The First Response, charging a fee for copies, was therefore proper and in
conformance with IPRA, because IPRA permits Defendants to charge reasonable
fees for copying. See § 14-2-9(C)(1). Turning to “reasonable,” Plaintiffs initial
request did not communicate that he could not pay for copies, but did request
inspection at PNM, “without a fee.” Under those circumstances, Defendants
reasonably attempted to balance Plaintiff's request to review the documents first
with getting the requested public records to him expeditiously for his review. We
come to this conclusion in part because the First Response demonstrates that the
requested records were actually prepared for Plaintiff's inspection and the First
Response was not Defendants’ only response. After Plaintiff reiterated that he
wanted to physically inspect the records, Defendants continued the correspondence

with the Second Response.

Oo Ox~ANN

The Second Response
413 After the First Response, Plaintiff communicated to Defendants that he did
not yet want copies, but that the documents would have to be delivered for him to
inspect first. The Second Response simply stated,
Inspection of public records are conducted at [DPS] located at 4491
Cerrillos Rd, Santa Fe, NM 87504 Monday — Friday between the hours
of 8:00am — 5:00pm. Inspection request must be made in advance to
ensure proper location and availability of staff is available. Inspections
are limited to | hour.
Plaintiff contends that the Second Response was unreasonable and with this, we
agree. Defendants knew Plaintiff was incarcerated because, in the first request,
Plaintiff informed Defendants that the inspection would need to occur at PNM.
Defendants’ response that provided only DPS’s address and business hours was
unreasonable under the circumstances.
2} Defendants argue that “[n]othing in IPRA requires a public body to physically
transport records to an IPRA requester’s location” and point to the Attorney
General’s New Mexico Inspection of Public Records Act Compliance Guide at 29

(8th ed. 2015) to argue that reasonable opportunities to inspect need not “require an

office to disrupt its normal operations or remain open beyond its normal hours of

‘Because we conclude the Second Response was unreasonable under the
circumstances, we do not consider whether the Second Response was proper under
IPRA.

operations.” By these arguments, Defendants focus entirely on rebutting Plaintiff's
suggestion that Defendants transport original evidence to PNM. Defendants fail to
demonstrate that their response to Plaintiff was reasonable considering all of the
circumstances. Defendants’ options for providing an opportunity to inspect were not
limited to Plaintiff's suggested method of delivery. We need not decide what
response would have been reasonable in these circumstances. Nor need we evaluate
the alternative methods of delivery that Plaintiff offers in his briefs.> Defendants’
duty was to be reasonable, considering all of the circumstances. An offer to an
incarcerated person of an opportunity to visit a location outside the place of
incarceration during business hours is not reasonable under the circumstances and
does not align with the Legislature’s clearly asserted public policy that “to provide
persons with such information is an essential function of a representative
government and an integral part of the routine duties of public officers and
employees.” Section 14-2-5. IPRA establishes that providing for inspection of public
records is an essential function of government, which Defendants failed to

reasonably perform in the present case.

°Plaintiff now posits that the “remedy is for this [C]ourt to order appellees to
establish a practi[c]e that allows indigent and immobile citizens to access public
records.” Plaintiff did not raise this request in the district court, see Rule 12-321
NMRA (discussing preservation), nor does he provide any authority authorizing this
Court to take such action.

liga: Having concluded that Defendants have failed to provide an opportunity that

was reasonable under the circumstances for Plaintiff to inspect nonexermpt records,

3) the remaiming question is remedy. See Britton, 2019-NMCA-002, 9 35 Gnterpreting
Aithe remedies set forth under Sections 14-2-11 and -12). We therefore remand the
Si matter to the district court to determine the appropriate remedy under IPRA.

6) CONCLUSION

7i 4: For the reasons stated herein, we reverse the district court and remand for
Si further proceedings.

Das: TPES SO ORDERED.

a . a .
10 Ka Ph aAsnnt, bb. ABBE oe
il KATHERINE A. WRAY, Jugige

12) WE CONCUR:

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14) ZACHARY A, IVES, Judge

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16] JANE B. XQHALEM, Judge
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June 29, 2022- Bryce Franklin v. New Mexico Department of Public Safety, No. A-1-CA-38060

Gesamter Gesetzestext

OCR transcription for search; preserved printed pages are authoritative

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