April 25, 2013 – Daniel Faber v. Gary K. King, Attorney General of the State of New Mexico, No. 31,446

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: April 25, 2013

NO. 31,446

DANIEL M. FABER,
Plaintiff-A ppellee,
V.

GARY K. KING, Attorney General
of the State of New Mexico,

Defendant- Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Beatrice J. Brickhouse, District J udge

Tucker Law Firm, P.C.
Steven L. Tucker
Santa Fe, NM

for Appellee

Gary K. King, Attomey General

Scott Fuqua, Assistant Attomey General
Santa Fe, NM

for Appellant

OPINION
KENNEDY, Judge.
{1} 	This case requires us to determine if damages of $100 per day was a correct and
reasonable award in response to the New Mexico Attorney General’s wrongful
withholding of documents in violation of the Inspection of Public Records Act
(IPRA). We conclude that the district court erred in awarding damages under NMSA
1978, Section 14-2-12(D) (1993) without stating the nature and purpose of the damage
award and failing to further support by findings, and we reverse.
I. 	BACKGROUND
{2} 	Plaintiff Daniel Faber is an attorney who represented three employees of the
Attorney General’s Office in an employment dispute filed in federal court. 	The
federal court ordered a stay of discovery on May 28, 2010, in order to evaluate an
Eleventh Amendment immunity defense raised by the Attorney General. On August
23, 2010, while the stay was still in effect, Faber, in his own name, filed an IPRA
request for employment records from the Attorney General’s Office. NMSA 1978,
§§ 14-2-1 to -12 (1947, as amended through 2011). The Attorney General denied the
request three days later, stating that it appeared to “circumvent the discovery process”
in the pending lawsuit.

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{3} 	Faber filed a lawsuit against the Attorney General in the state district court to
enforce his IPRA request on September 7, 2010. 	The district court eventually held
that the discovery stay did not preempt statutory rights granted to New Mexico
citizens by IPRA. 	It further ruled that the Attorney General had violated IPRA by
denying Faber’s request and issued a writ of mandamus ordering the Attorney General
to comply. 	The determination of the IPRA violation is not at issue on appeal. Our
sole concern is the amount of damages awarded to Faber.
{4} 	Faber subsequently moved for damages as allowed under IPRA. Section 14-2-
12(D). 	The district court awarded damages of “$10[] per day from the date of the
wrongful denial to the date the federal court stay was lifted; thereafter, damages of
$100[] per day until the records are provided.” The district court also awarded costs.
Because Faber was proceeding pro se in this matter, he waived an award of attorney
fees. The Attorney General appealed the district court’s award of damages.
II. 	DISCUSSION
{5} 	We review questions concerning the application of IPRA de novo. 	State v.
Rivera, 	2004-NMSC-001, 	¶ 	9, 	134 	N.M. 	768, 	82 	P.3d 	939 	(stating 	that
“[i]nterpretation of a statute is a matter of law, which we review de novo” (internal
quotation marks and citation omitted)). To the extent that the Attorney General argues
the district court awarded an erroneous amount of damages, we review an award for

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substantial evidence. Moody v. Stribling, 1999-NMCA-094, ¶ 40, 127 N.M. 630, 985
P.2d 1210 (“As long as there is a reasonable method used to achieve an amount of
damages, we will accept that amount.”). The Attorney General argues that per-day
damages were wrongfully awarded under the section of IPRA governing failures to
respond, rather than the sections applicable to wrongful denials of requests for
information. The Attorney General also argues that, once Faber’s request was denied,
it ceased to exist and, therefore, daily damages were incorrectly calculated to continue
to accrue after the denial. 	For the reasons that follow, we conclude the Attorney
General to be incorrect on both issues.
A. 	Per-Day Damages Are Permitted Under Section 14-2-12
{6} 	The Attorney General first argues that the district court erroneously applied
Section 14-2-11(C)(1) of IPRA to calculate damages. That section states that, if a
custodian of records fails to respond to a record request and does not provide a written
explanation within fifteen days, the person requesting the information is entitled to
damages if the failure to respond was unreasonable. 	Id. 	Section 14-2-11(C)(2)
provides that the damages for failure to respond shall “not exceed . . . []$100[] per
day[,]” and they accrue from the day that the custodian is in violation of Section 14-2-
11(C)(3) until he complies.

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{7} 	Section 14-2-12, under which Faber moved for damages, covers actions to
enforce a request that was denied. 	It provides that a person whose request was
rejected may bring an action seeking to mandate an official’s compliance with the
statute and empowers the district court to order any “appropriate remedy” to enforce
IPRA. Section 14-2-12(B). Most importantly to the case at hand, Subsection (D) is
clear that the court “shall award damages, costs[,] and reasonable attorney fees to any
person whose written request has been denied and is successful in a court action to
enforce [IPRA].” 	Section 14-2-12(D) (emphasis added). 	Thus, under the plain
language of Section 14-2-12, it is clear that the court must award damages and that
those damages are not subject to further restrictions. 	What type of damages are
permitted, and for what reasons, is not stated.
{8} 	IPRA includes these provisions for damages and other remedies to “encourage
compliance and facilitate enforcement.” 	San Juan Agric. Water Users Ass’n v.
KNME-TV, 2011-NMSC-011, ¶ 12, 150 N.M. 64, 257 P.3d 884; see § 14-2-12. First
in time among such remedies is the $100 per-day penalty under Section 14-2-11(C)
for any agency that does not timely respond to a request. 	Once an agency denies
production of requested documents, however, the party requesting the records is
authorized under Section 14-2-12(A)(2) to bring an enforcement action. Then, “[t]he
court shall award damages, costs[,] and reasonable attorney[] fees to any person whose

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written request has been denied and is successful in a court action to enforce the
provisions of [IPRA].” 	Section 14-2-12(D); San Juan Agric. Water Users, 2011-
NMSC-011, ¶ 13; State ex rel. Toomey v. City of Truth or Consequences, 2012-
NMCA-104, ¶ 27, 287 P.3d 364; Derringer v. State, 2003-NMCA-073, ¶ 10, 133
N.M. 721, 68 P.3d 961. As additional remedies, Section 14-2-12(B) provides for a
district court to issue a writ of mandamus directing a defendant to produce the
documents as was awarded by the court in this case and also provides for a district
court to order an “other appropriate remedy to enforce the provisions of [IPRA].”
{9} 	Here, the court granted Faber’s motion for daily damages from the date of non-
compliance until the date of compliance. In the briefs to the district court on damages
as well as the hearing, it is clear that all counsel and the court understood the
distinction between Section 14-2-11 and Section 14-2-12. Faber never claimed that
the $100 maximum in Section 14-2-11(C)(2) applied to his enforcement action. He
instead argued below that it was a reasonable amount of damages to apply under
Section 14-2-12 because the Attorney General has a constitutional duty to enforce the
public’s right to access documents. Faber argued that the Attorney General’s refusal
to honor the request, even after the federal court’s stay was lifted, was an egregious
act worth $100 per day in damages after the lifting of the stay. The only question we
must answer is whether the nature and amount of the award was supported.

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{10} 	The Attorney General argues that the statutory damages are solely intended to
be 	compensatory. 	We note first that Section14-2-12 does not limit the nature of
damages that may be awarded. Further, the case relied upon by the Attorney General
does not support the position that damages under IPRA are compensatory only. See
Southard v. Fox, 113 N.M. 774, 779, 833 P.2d 251, 256 (Ct. App. 1992) (stating that
prejudgment interest is not part of jury-determined damages). The Attorney General
also argues that calculating damages by day would leave an agency that denies a
request “at the mercy of the court’s docket . . . [and] dilatory tactics of the
requester[.]” These are factors to be considered by the district court in its discretion.
We are confident a district court is capable of managing its docket to avoid these
problems as much as it is able to minimize unwarranted, unintended, or excessive
damage awards. Here, the court clearly differentiated between the time during which
the federal stay was in effect, and the time after it was lifted. Our decision today does
not suggest a method of calculating damages under Section 14-2-12(D). We merely
examine whether, in this case, the district court’s award was supported.
{11} 	The term “damages” under IPRA has not been construed or limited by our
courts. New Mexico has yet to determine if any sort of punitive monetary assessment
would be appropriate under Subsections (B) or (D). Existing cases do not help. In
Toomey, we remanded to the district court to determine an “appropriate award.”

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2012-NMCA-104, ¶ 28. 	In Rio Grande Sun v. Jemez Mountains Public School
District, the plaintiffs were awarded “nominal damages” that were not appealed.
2012-NMCA-091, ¶ 4, 287 P.3d 318, cert. denied, 2012-NMCERT-008, 296 P.3d
490. 	We note that, in Rio Grande Sun, we discussed that the provision awarding
attorney fees further implements IPRA’s policy to encourage private citizens to
enforce the Act and lawyers to litigate violations of the Act on their behalf. Id. ¶ 19.
Here, Faber waived his claim to attorney fees and argued for damages, thus removing
from our consideration one possible remedy for successful litigants. 	C. Clifford
Allen, III, Right of Party Who Is Attorney and Appears for Himself to Award of
Attorney’s Fees Against Opposing Party as Element of Costs, 78 A.L.R.3d 1119
(1977) (discussing states that allow pro se attorney litigants to receive attorney fees
and those that do not). Faber sought actual damages of $150 to reimburse him for a
contempt citation from federal court for making the IPRA request, but the district
court did not award that amount, nor did it specify the type of damages as “actual” or
otherwise. Attempting to ascertain the district court’s intentions with regard to the
amount of damages if awarded under Section 14-2-12(D) is impossible, given this lack
of precedent and confusing language in the pleadings and the parties’ arguments.
{12} 	The district court’s opinion and order of March 2011 was specific in reserving
the issue of “an award pursuant to Section 14-2-12(D) upon appropriate motion,”

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which Faber subsequently made. 	Faber argued that the $100 per-day damages in
Section 14-2-11(C) should be seen not as a mandated amount for that section only, but
as the upper end of a range of IPRA damages. In fact, Faber specifically asserted in
his response to the Attorney General’s opposition to any award of damages that, under
Section 14-2-12(D), there was no good reason for the court to order less than $100 per
day. In light of Faber’s specific request for “actual damages” of $150, we could easily
view Faber’s argument for “statutory damages” as a request for punitive damages
based on his assertions that the Attorney General’s denial of a fundamental right to
inspect public records is “disgraceful,” “inexcusable,” “egregious” and deserving of
being “penalized.” See State ex rel. Newsome v. Alarid, 90 N.M. 790, 797, 568 P.2d
1236, 1243 (1977) (holding that there is a “fundamental right” to inspect public
records), superceded on other grounds by statute as stated in Republican Party of
N.M. v. N.M. Taxation & Revenue Dep’t, 2012-NMSC-026, 283 P.3d 853. 	“A
specific pleading of the theory that supports an award of punitive damages . . . is not
required by the rules.” Chavarria v. Fleetwood Retail Corp., 2006-NMSC-046, ¶ 22,
140 N.M. 478, 143 P.3d 717. By the same token, “statutory damages” may mean no
more than whatever may be permitted by Section 14-2-12(B) or Section 14-2-12(D).

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{13} 	We are foreclosed from adding things that are not provided for in the statute.
Amerada Hess Corp. v. Adee, 106 N.M. 422, 424, 744 P.2d 550, 552 (Ct. App. 1987).
We cannot read into it language that is not there. State ex rel. Klineline v. Blackhurst
106 N.M. 732, 735, 749 P.2d 1111, 1114 (1988), superceded in statute as stated in
Cordova v. State Taxation & Revenue, 2005-NMCA-009, 136 N.M. 713, 104 P.3d
1104. 	We give effect to each part of legislation to determine the intent of the
Legislature. 	Harris v. Vasquez, 2012-NMCA-110, ¶ 10, 288 P.3d 924. In Faber’s
motion for an award of damages, he requests “damages of $100 per day.” He urges
that this amount, already found in IPRA under Subsection (C) (mandating damages
for failure to respond) can be used as a benchmark amount for damages in cases of an
egregious refusal to provide documents. To Faber, such an amount “should also apply
in the case of an agency that refuses to produce public records, such as in this case.”
We disagree with directly incorporating Section 14-2-11(C) damage amounts into
Section 14-2-12(D), as “[w]e will not read into a statute language that it does not
contain” and are, therefore, unwilling to conflate the penalties for non-response to a
request provided by Section 14-2-11 with the separate remedies in Section 14-2-12.
Cal. First Bank v. State, 111 N.M. 64, 73, 801 P.2d 646, 655 (1990). We will uphold
a trial court’s award of compensatory damages if it is supported by substantial
evidence. 	Chavarria, 2006-NMSC-046, ¶ 17. 	“As long as there is a reasonable

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method used to achieve an amount of damages, we will accept that amount.” Moody,
1999-NMCA-094, ¶ 40.
{14} 	Driven by the public interest in government transparency, Section 14-2-11(C)
provides a robust available remedy for ignoring requests for documents and is driven
by the overwhelming public interest in government transparency. 	The Attorney
General and Faber both agree that the damages in Section 14-2-11(C) extend only
from the time of non-compliance to the time the request is denied or fulfilled. So do
we. This Court has held that, once the custodian of records answers the request with
a denial or otherwise, Section 14-2-11 ceases to apply and, when someone brings an
action to enforce production after a denial, the damages are governed by Section 14-2-
12(D). Derringer, 2003-NMCA-073, ¶¶ 10-11. For this reason, Section 14-2-11 and
Section 	14-2-12 	are 	separately 	titled 	“Procedure 	for 	denied 	requests” 	and
“Enforcement.”
{15} 	We hold that damages for enforcement of a denied request are governed by
Section 14-2-12(D), not Section 14-2-11(C). The statutory maximum per-day penalty
of Section 14-2-11(C) does not create any “standard” for an amount of damages under
Section 14-2-12(D) as asserted by Faber. Faber’s prayer for relief asks for “statutory
damages of $100 per day” in addition to the “actual damages of $150 to compensate
him for the penalty” imposed by the federal court. 	As far as the Attorney General

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mistakenly argues that Faber’s phrase “statutory damages” refers only to application
of Section 14-2-11(C), Faber cannot receive those “statutory damages” under Section
14-2-12(D). 	Section 14-2-12(D) provides for damages, which we hold must be
somehow specified as to their nature and measured by the district court.
{16} 	The statute is silent as to whether awards of punitive damages are permitted.
Section 14-2-12. It is the Attorney General, not Faber or the district court, who is
conflating a request for damages by insisting that Faber is proceeding under a specific,
but technically inapplicable, statute. Faber instead argues that there is no reason to
award less than $100 per day. 	Section 14-2-11(C) serves as no more than a
benchmark for both the degree of behavior worthy of punishment and the measure of
what punishment is warranted. Instead, we evaluate the reasonableness of a punitive
damage award based on “the reprehensibility of the defendant’s conduct . . . and the
difference between the punitive damages award and the civil and criminal penalties
authorized or imposed in comparable cases.” 	Aken v. Plains Elec. Generation &
Transmission Coop., Inc., 2002-NMSC-021, ¶ 20, 132 N.M. 401, 49 P.3d 662;
Chavarria, 2006-NMSC-046, ¶ 36. 	The district court seemed to have understood
Faber’s request as one for a maximum penalty. The court tailored its award to reflect
relative culpability between times when the federal stay was still in place and the time

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after the stay was lifted, but the Attorney General continued to withhold the
documents.
{17} 	However, the court did not award compensatory damages, nor specify that the
damages awarded were punitive. 	We have previously held that punitive damages
cannot be recovered in the absence of compensatory or nominal damages. Madrid v.
Marquez, 2001-NMCA-087, ¶ 3, 131 N.M. 132, 33 P.3d 683. 	We apply the same
standard to the damages named in Section 14-2-12(D). Given that there is no mention
of compensatory or nominal damages, and every indication in the record points to the
award as punitive, we hold that the award is unsupported and reverse for further
proceedings in accordance with our ruling. 	The district court must enter findings
supporting any award of compensatory damages so that we may, on review, know the
basis for such damages and may then measure them against any award of punitive
damages.
B. 	Denial of Request Does Not Terminate It for Purposes of Calculating
Damages
{18} 	The Attorney General also argues that Faber is not entitled to per-day damages
because the request terminated when it was denied and, therefore, the court should not
have counted any of the days after the request was rejected. He argues that the court’s
award, which counted damages from the wrongful denial to the day the records were
produced, implies that the request was still pending that entire time. He argues this

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would lead to harmful public policy in requiring agencies to keep monitoring a request
in case they later acquired documents that they lacked at the time of the original
request. We disagree.
{19} 	As discussed above, no one disputes that the Attorney General withheld the
documents from the time of the request through the judgment of the district court.
The district court did not assume that the request stayed open after it was denied, or
that it would remain open indefinitely as the Attorney General fears. Instead, although
unspecified, the district court awarded damages for the wrongdoing under the relevant
statute.
III. 	CONCLUSION
{20} 	We reverse the district court’s award of damages as unsupported by findings
supporting compensatory damages, which are a prerequisite to punitive damages such
as were awarded in this case.
{21} 	IT IS SO ORDERED.
____________________________________
RODERICK T. KENNEDY, Chief Judge

WE CONCUR:

LINDA M. VANZI, Judge

J. MILES HANISEE, Judge

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