September 16, 2019- New Mexico Foundation for Open Government v. Corizon Health, No. A-1-CA-35951

1
Corrections to this opinion not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM
Compilation Commission. The Court will ensure that the electronic version of this opinion is updated accordingly in Odyssey.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: _____ _
3 Filing Date: September 16, 2019
No. A-1-CA-35951
4 NEW MEXICO FOUNDATION
5 FOR OPEN GOVERMENT; THE
6 ALBUQUERQUE JOURNAL; and
7 THE SANTA FE NEW MEXICAN,
8 	Petitioners-Appellees,
9 v.
10 CORIZON HEALTH, a foreign
11 	corporation,
12 	Respondent-Appellant.
13 	APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
14 Raymond Z. Ortiz, District Judge
15 	Daniel Yohalem
16 	Santa Fe, NM
17 Katherine Murray
18 	Santa Fe, NM
19 	for Appellees
20 Holland & Hart LLP
21 	Larry J. Montano
22 Charlie S. Baser
23 	Santa Fei NM
24 for Appellant
Court of Appeals of New Mexico
Filed 9/16/2019 9:22 AM

1 	OPINION
2 HANISEE, Judge.
· 3 	{1} 	Corizon Health (Respondent) appeals. the district court's orders granting
4 Petitioners' the Santa Fe New Mexican, Albuquerque Journal, and New Mexico
5 Foundation for Open Government (collectively, Petitioners) verified petition for
6 alternative writ of mandamus (Petition); and ensuing motion for attorney fees.
7 Concluding the district court properly determined that Respondent's settlement
8 agreement documents were public records subject to the Inspection of Public
9 Records Act (IPRA) and acted within its discretion in awarding attorney fees to
10 Petitioners, we affirm.
11 	BACKGROUND
12 	{2} 	Respondent is a private pnson 	medi~al 	services provider that provides
13 	contracted healthcare services throughout the United States. In a series of contracts
14 with the New Mexico Corrections Department (NMCD)_, Respondent committed to
15 	provide healthcare services in certain New Mexico correctional and detention
16 	centers from 2007 to 2016, most recently under a Professional Services Agreement
17 (the Contract) from June 2012 through May 2016. Respondent stopped providing
18 	medical care services for NMCD after the Contract ended. As a result of the medical
19 	care Respondent provided during the course of the Contract, certain inmates filed

1 civil claims against Respondent alleging instances of improper care and/or sexual
2 assault. Respondent negotiated and settled at least fifty-nine such civil claims.
3 IPRA Requests
4 	{3} 	In May and June 2016 Petitioners separately submitted written IPRA requests
5 to NMCD requesting to inspect and copy all settlement documents involving
6 Respondent in its role as medical services contractor for NMCD. NMCD responded
7 to each and stated it had no responsive documents in its possession. NMCD
8 explained that under the Contract, Respondent defends and indemnifies NMCD
9 regarding "all lawsuits alleging improper or unconstitutional medical care" 	of
10 inmates, and that even if NMCD or a state employee had been named as a defendant
11 	in error in a lawsuit involving medical care provided to inmates, the state entity or
12 actor would be dismissed from the lawsuit before it settled, thereby removing
13 	NMCD from the settlement process. NMCD stated that "[Respondent] alone pays
14 all settlement amounts, pays its own attorneys to settle or try the case, and pays the
15 	inmate's attorney fees and any judgments or verdicts entered in these cases." As
16 such, 	NMCD 	explained 	that 	Respondent 	is 	the 	custodian 	of the 	settlement
17 agreements 	involving 	medical 	care 	of inmates 	during 	the 	time 	period when
18 	Respondent and NMCD were under contract. NMCD's responses also provided each
19 Petitioner with Respondent's contact information, instructed Petitioners to contact
20 Respondent, and forwarded a copy of each Petitioner's request to Respondent Each
2

1 Petitioner then sent written IPRA requests to Respondent requesting the same
2 information previously requested of NMCD.
3 {4} 	In response, Respondent sent all three_ Petitioners a table listing settlement
4 amounts from each settlement and the correctional facility involved. Respondent
5 also initially agreed to produce the settlement agreements if given an additional two
6 weeks to redact the names of the plaintiffs from the documents. Petitioners agreed
7 to the extension, however on that same day, Respondent sent each Petitioner a letter
8 refusing to produce any of the settlement agreements, stating "it is [Respondent's]
9 position that IPRA does not compel production of this information. Further, the
10 confidentiality agreements executed by the parties prohibit[] 	disclosure 	of the
11 	requested information."
12 Issuance of Writ of Mandamus
13 	{5} 	On July 	18, 	2016, 	Petitioners 	filed 	their Petition in the 	district 	court.
14 Contained 	within 	were 	supportive 	facts 	and 	argument 	regarding 	Petitioner's
15 	assertions that Respondent was a private entity acting on behalf of a public body,
16 thereby subjecting it to IPRA, and that the settlements resulted from Respondent's
17 provision of medical treatment to or attendant abuse of state prison inmates. Eight
18 	days later, the district court preliminarily issued an alternative writ of mandamus,
19 ordering Respondent to "[c]omply with your mandatory, non-discretionary duty to
20 produce the settlement agreements requested by Petitioners" and "[p]ay Petitioners'
21 	reasonable attorney[] fees and costs for litigating this action" or "[s]how cause as to
3

1 why this [preliminary] writ should not be made permanent." 1 Respondent filed its
2 answer to the Petition ten days after the court-mandated deadline to either produce
3 the settlement agreements or show cause. Primarily, Respondent stated it lacked
4 sufficient information to properly respond to a· significant number of Petitioners'
5 factual assertions. While Respondent admitted that it was under contract with
6 NMCD to provide inmate medical services in New Mexico correctional facilities
7 and that it was paid $3 7 million a year fo do so, it nevertheless argued that the
8 Petition should not be granted and that the settle~ent agreements are not subject to
9 IPRA because they ( 1) are private contracts between Respondent and private persons
10 which require confidentiality pursuant to clauses in the agreements; and (2) are not
11 	a component of the public function Respondent contracted to perform for the State.
12 Notably, Respondent's answer made no mention of mandamus as an inappropriate
13 	vehicle to enforce disclosure of the settlement agreements under IPRA.
1
Counsel for inmate plaintiffs named in the settlements at issue in the writ
filed a motion of interested persons to be heard on this matter and corresponding
position statement. Counsel then appeared at the hearing on the writ and argued that
the settlement agreements should not be produced because "[p]ublic disclosure in
this case would create an opportunity for 	[the· plaintiffs] to be harassed [and]
exploited." After the peremptory writ was granted following the hearing, counsel
collaborated with Petitioners and Respondent to establish an exemplar agreement for
purposes 	of redacting the 	settlement agreements 	if Respondent's 	appeal was
unsuccessful. Upon entry of the enduring district court order establishing the
redacted exemplar settlement agreement, the interested persons did not further object
to production of the settlement agreements. For that reason, we assume that the
interested persons were satisfied with the protection provided by the agreed upon
redactions and will not address their involvement in this case to any extent further
in this opinion.
4

1 {6} 	At 	a 	merits 	hearing 	on 	August 	16, 	2016, 	Petitioners 	argued 	IPRA's
2 applicability based upon.Respondent's provision of services that constitute a public
3 function under State ex rel. Toomeyv. CityofTruth or Consequences, 2012-NMCA-
. 4 104, ,-r,-r 13-14, 287 P.3d 364 (enumerating factors by which the public nature of a
5 private entity's provision of services is assessed in determining if the private entity
6 is subject to IPRA). Petitioners entered portions of the Contract into evidence to
7 show that Respondent provided medical services in an "intertwined fashion" with
8 NMCD, "side by side," and in a manner that required "constant feedback" and
9 repeated approval by NMCD. Petitioners argued that NMCD supplied medical
10 equipment, 	maintained 	extensive 	control 	over 	Respondent, 	and 	approved
11 	Respondent's staffing decisions. Petitioners explain that Respondent performed a
12 governmental function that NMCD would otherwise have performed itself, and
13 	argued that even if Respondent had settlement autonomy in the context of civil
14 	lawsuits, such alone did not recharacterize Respondent's central function from that
15 	of a public entity subject to IPRA.
16 	{7} 	Respondent agreed that it stood "in[] the shoes of the [S]tate [by] providing
17 	[medical] services to inmates, [and that] documents related to providing those
18 	services are subject to IPRA[,]" but argued that the settlement agreements are not
19 	subject to production under IPRA "simply because [Respondent] operates a medical
20 	facility within our [S]tate's prisons" and that to conclude otherwise would subject
21 	"all of [Respondent's] business records" to IPRA disclosure. Respondent also
.5

1 argued. that 	additional 	information-.beyond 	identification 	of the 	correctional
2 facilities and settlement amounts already set forth in its previously produced
3 spreadsheet-was outside the responsive scope of IPRA.
4 {8} 	At the end of the hearing, the district court granted the Petition, and on
5 September 6, 2016, issued its final order granting writ of mandamus (Writ). It found
6 that Respondent "was performing a public function and acting on behalf of the
7 [NMCD] in providing medical services to New Mexico inmates and is therefore
8 subject to IPRA[.]" Specifically, the court found "six of the nine Toomey factors
9 weigh in favor of applying IPRA to Respondent," including: (1) the 37 million-a-
10 year of public funds paid to Respondent by NMCD; (2) for services provided on
11 	publically owned property; (3) the availability of which were an integral part of
12 NMCD's medical decision making process; (4) regarding a governmental function;
13 	(5) over which NMCD had contractual control; (6) under a contract benefitting
14 NMCD and New Mexico inmates. Applying these findings, the district court
15 	concluded that the "settlement agreements related to [Respondent's] performance of
16 this public 	function 	are public records 	subject to 	disclosure 	under IPRA[,]"
17 reasoning that "[Respondent] cannot contract away the public's right to IPRA
18 	disclosure through various contractual provisions in the settlement agreements
19 themselves and such provisions are void as against public policy .... [Respondent]
20 	operating in settlement agreements th[r]ough. an insurance company does not
21 	otherwise eviscerate the requirements of IPRA."
6

1 {9} 	The Writ thus ordered Respondent to produce the settlement agreements,
2 redacted 	in 	accordance 	with 	the 	exemplar 	settlement 	agreement 	containing
3 redactio~s initially agreed upon by the parties. The district court further instructed
4 Petitioners to submit their motion for fees, · including supporting affidavits and
5 invoices. At Respondent's request, the district court stayed the Writ "pending
6 exhaustion of [Respondent's] avenues of appellate review [under] Rule 1-062(C)
7 NMRA.''
8 Attorney Fees
9 	{IO} 	On September 19, 2016, Petitioners filed their motion for attorney fees and
10 costs (Motion), but neglected to seek Respondent's position before filing. The
11 	Motion included the lodestar calculation of attorney fees for the two attorneys for
· 12 Petitioners, Daniel Yohalem and Katherine Murray, amounts of past attorney fees
13 	awarded to both, a supporting affidavit from an expert on the market value of
14 attorney fees in New Mexico, and additional supportive documentation including
15 	resumes and timesheets. Yohalem and Murray sought fees at $400 and $225 an hour,
16 respectively. Yohalem additionally stated that his requested hourly rate was based
17 "in part on the contingent nature of [his] representation of Petitioners."
18 	{11} 	Opposing the Motion, Respondent made three arguments. First, that Yohalem
19 	should not be awarded fees at a higher rate as a consequence of an underlying fee
20 arrangement. 	Respondent 	stated 	that 	New 	Mexico 	case 	law 	discussing 	the
21 	reasonableness of attorney fees in IPRA cases expressly omits three factors from
7

1 Rule 16-105 NMRA, incl~ding "whether the fee is fixed or contingent." Second, that
2 Petitioners' attorney fee request is not reasonable given "the time and labor required"
3 and "the novelty and difficulty of the questions involved and skill required" in
4 litigating the case. Respondent reasoned that the hours Petitioners' counsel expended
5 	on the case were unreasonable given their vast experience in IPRA litigation. Third,
6 that Petitioners failed to seek Respondent's position on the motion for attorney fees,
7 thereby depriving Respondent of the opportunity to discuss and agree upon a
8 "reasonable amount of attorney[] fees." Accordingly, Respondent requested. that
9 Petitioners not be awarded their fees for the preparation of the attorney fee briefing.
10 	{12} 	At a February 13, 2017 hearing on the Motion, the district court found that the
11 	hourly rates sought by Petitioners' counsel were reasonable in light of the difficulty
12 	of the case, the risks involved, and the rates of lawyers with comparable experience.
13 	In its ensuing written findings of fact and conclusions of law granting the Motion,
14 the 	court 	also 	found 	that 	Respondent "presented no 	evidence 	whatsoever to
15 	challenge the [requested] hourly rates." It concluded that Petitioners did not seek
16 fees increased to reflect the contingent nature of their work and stated "this [c]ourt
17 has not awarded any enhancement[,]" but that such would be permissible based upon
18 	"the contingent nature of their fee arrangement in this case ... under prevailing New
19 Mexico precedent." The district court lastly concluded that Petitioners should not be
20 penalized for failing to confer with Respondent prior to filing their motion on fees
8

1 because the motion for fees was a motion that by its nature could be deemed opposed
2 "in the context of the instant case."
3 	{13} 	Respondent separately and timely appealed both the district court's issuance
4 of the Writ and its ensuing award of attorney fees. Both appeals are now consolidated
5 and resolved by this opinion.
6 DISCUSSION
7 	{14} 	On appeal, Respondent contends that the district court's issuance of the Writ
8 in this circumstance was an improper use of mandamus proceedings because the
9 facts before the district court were insufficient to establish that the settlement
10 agreements were public records under IPRA and because the Petition presents an
11 	unsettled question of law. Respondent also argues the district court abused its
12 	discretion in its award of attorney fees to Petitioner's counsel.
13 	Standard of Review
14 {15} 	"We generally review the granting or denial of a writ of mandamus under an
15 	abuse of discretion standard." Alarcon v. Albuquerque Pub. Sch. Bd. ofEduc., 2018-
16 NMCA-021, 1 26, 413 P.3d 507, cert. denied, _NMCERT_ (No. S-l-SC-
17 36811, Jan. 23, 2018). Given that mandamus is proper only in circumstances where
18 there exists a legal duty to act, we must also interpret statutory provisions of IPRA
19 to ascertain whether the settlement agreements at issue are public records. Thus, our
20 review is de novo. See id.; Cox v. NM Dep't of Pub. Safety, 2010-NMCA-096, 14,
21 	148 N.M. 934, 242 P.3d 501 ("The meaning of language used in a statute is a
9

1 question of law that we review de novo." (internal quotation marks and citation
2 omitted)). "In discerning the Legislature's intent, we are aided by classic canons of
3 statutory construction, and we look first to the plain language of the statute, giving
4 the words their ordinary meaning, unless the Legislature indicates a different one
5 was intended." City of Albuquerque v. Montoya, 2012-NMSC-007, il 12, 274 P.3d
6 	108 (alteration, internal quotation marks, and citation omitted). In so doing, we "take
7 care to avoid adopting a construction that would render the statute's application
8 absurd or unreasonable or lead to injustice or contradiction." Alarcon, 2018-NMCA-
9 021, il 5 (internal quotation marks and citation omitted). IPRA must be construed in
10 light of its purpose and statutory provisions under IPRA "should be interpreted to
11 	mean what the Legislature intended it to mean, and to accomplish the ends sought
12 to be accomplished." San Juan Agric. 	Water 	Users Ass 'n v. KNME-TV, 2011-
13 	NMSC-011, il 14, 150 N.M. 64,257 P.3d 884 (internal quotation marks and citation
14 omitted). Lastly, an "[a]ward of attorney fees rests in the discretion of the trial court
15 	and this [C]ourt will not alter the fee award absent an abuse of discretion." Lenz v.
16 	Chalamidas, 1991-NMSC-099, ,I 2, 113 N.M. 17, 821 P.2d 355.
17 Third-Party Settlement Agreements Resulting From Medical Care Provided
18 	Under a Contract With the State Are Public Documents Subject to Disclosure
19 Under IPRA
20 	{16} 	IPRA declares it "to be the public policy of this state[] that all persons are
21 	entitled to the greatest possible information regarding the affairs of government and
22 the official acts of public officers and employees[,]" NMSA 1978, Section 14-2-5
10

1 (1993); Pacheco v. Hudson, 2018-NMSC-022,, 23, 415 P.3d 505, and that "such
2 information is an essential function of a representative government and an integral
3 part of the routine duties of public officers and employees[,]" Section 14-2-5. "Every
4 person has a right to inspect public records of this state except" when a public record
5 falls into an enumerated exception. NMSA 1978, Section 14-2-l(A) (2019). IPRA
6 defines public records as:
7
8
9
10
11
all 	documents, 	papers, 	letters, 	books, 	maps, 	tapes, 	photographs,
recordings 	and 	other 	materials, 	regardless 	of 	physical 	form 	or
characteristics, that are used, created, received, maintained or held by
or on behalf of any public body and relate to public business, whether
or not the records are required by law to be created or maintained[.]
12 NMSA 1978, Section 14-2-6(G) (2013).
13 	{17} 	"[U]nder IPRA, public records are 'broadly defined.' " Edenburn v. N.M
14 Dep 't of Health, 2013-NMCA-045,, 17;299 P.3d 424. Here, we construe IPRA in
15 	light of its language and purpose to ascertain whether the Legislature intended for
16 settlement agreements, entered into bythird-party entities and arising from the third-
17 party's performance of the public function, to be public documents available under
18 	IPRA. 	We must determine if such settlement agreements were "used, created,
19 received, maintained or held by or on behalf of [the NMCD,] and relate to public
20 business[.]" Section 14-2-6(0). We recognized some absence of clarity on this issue
21 	in Toomey in which we observed:
22
23
24
The 'on behalf of language, however, is not defined, and the statute
does not indicate whether every purp01:tedly public document created
or held by a private entity comes withirt the ambit of IPRA or whether
1.1

1
2
3
4
there 	are 	any 	limitations to production 	of requested records. 	See
Merriam-Webster's 	Collegiate 	Dictionary 	103 	(10th 	ed. 	1996)
(defining "on behalf of' as "in the interest of' or "as a representative
of'). The Legislature has offered no guidance on the issue.
5 	Toomey, 2012-NMCA-104,, 10.
6 	{18} 	Nonetheless, in this inquiry we are guided by IPRA itself, as well as cases
7 interpreting it. First, we rely on the language of Section 14-2-6(G) insofar as the
8 settlement agreements were plainly created and maintained in relation to a public
9 business, here, the medical care and personal safety of the inmates held by the
10 NMCD. See High Ridge Hinkle Joint Venture v. City ofAlbuquerque, 1998-NMSC-
11 	050,, 5, 126 N.M. 413, 970 P.2d 599 (stating the "plain language of a statute is the
12 primary indicator 	of legislative 	intent" 	(internal quotation marks 	and 	citation
13 	omitted)). Despite the fact, as Toomey states, that the applicable provision does not
14 expressly list items suited to 	IPRA disclosure, we cannot envision, nor does
15 	Respondent cogently point us toward an alternative conclusion regarding records of
16 this nature-involving civil compensation based upon flawed medical care or sexual
17 abuse in New Mexico prisons. See 2012-NMCA-10,, 10. To reiterate, Respondent
18 	was acting on behalf of the NMCD by providing medical services to inmates at New
19 Mexico detention facilities. The settlement agreements were created as a result of
20 Respondent's public function acting on behalf of NMCD as they involve alleged
21 	mistreatment of inmates while in the custody of the State of New Mexico. We view
12

1 Section 14-2-6(G) to plainly guide our determination that the settlement agreements
2 are public records subject to production under IPRA.
3 {19} 	Second, we are guided by IPRA's stated purpose that "all persons are entitled
4 to the greatest possible information regarding the affairs of government." Section
5 14-2-5. And while we "utilize a flexible approach that favors access to records even
6 when held by a private entity[,]" Toomey, 2012-NMCA-104, 126, the foundational
7 objectives 	of IPRA are to "provide access to public information and thereby
8 encourage accountability in public officials and employees." Bd. of Comm 'rs of
9 Dona Ana Cty. v. Las Cruces Sun-News, 2003-NMCA-102, 1117, 29, 134 N.M. 283,
10 	76 P.3d 36, overruled on other grounds. by Republican Party of N.M 	v. 	N.M
11 	Taxation & Revenue Dep 't, 2012-NMSC-026, 116, 283 P.3d 853 (eliminating any
12 reliance on the "rule of reason" exception to IPRA). "People have a right to know
13 	that the people they entrust with the affairs of government are honestly, faithfully
14 and competently performing their functio11 as public servants." Id. 1 29 (internal
15 	quotation marks and citation omitted). Allowing private entities who contract with a
16 public entity "to circumvent a citizen's right of access to records by contracting"
17 with a public entity to provide a public function "would thwart the very purpose of
18 	IPRA and mark a significant departure from New Mexico's presumption of openness
19 at the heart of our access law." Toomey, 2012-NMCA-104, 126 (holding recordings
20 	of city meetings to be disclosed under IPRA).
13.

1 {20} 	Third, this Court previously determined. that settlement agreements resulting
2 from civil inmate claims against a county detention center involving allegations of
3 sexual abuse by county detention officers were public records subject to disclosure
4 under IPRA. In Board of Commissioners ofDona Ana County, we held that the Dofia
5 Ana County's denial of Las Cruces Sun-News'_IPRA request for documents related
6 to settlements Dofia Ana County reached on.behalf ofDofia Ana County Detention
7 Center was unreasonable and in violation of IPRA. 2003-NMCA-102, 113, 41.
8 Dofia Ana County acknowledged that it was required to release the requested
9 documents under IPRA, however, it argued that the documents fell under certain
10 	IPRA exceptions and that the documents should not be disclosed due to public policy
11 	reasons. Id. 11 3, 27. Even though Board of Commissioners of Dona Ana County
12 	involved IPRA requests for documents directly from a public entity instead of from
13 	a private entity under contract with a public agency, this Court nonetheless held that
14 	settlement agreements resulting from civil lawsuits by inmates alleging mistreatment
15 	while in custody were public records subject to IPRA. Id. 1 41.
16 	{21} 	Given the foregoing, and having concluded above there is no distinction
17 between Respondent and a public entity concerning the issues here, the settlement
18 	agreements entered into by Respondent are public records under Section 14-2-6.
19 Information about the mistreatment and abuse of New Mexico inmates as raised in
20 the civil claims is exactly the type of public information that IPRA contemplates
21 	must be disclosed to the public in order to hold its government accountable.
14

1 Regardless of whether Respondent was a third-party private entity, the settlement
2 agreements at issue arose from allegations resulting from Respondent's performance
3 	of a 	public 	function-providing 	medical 	care 	to 	inmates-and 	as 	such, 	the
4 settlement agreements resulted from the. medical care provided to New Mexico
5 inmates while under contract with the State.
6 Sufficient Evidence Existed in the Record to Support Issuance of the Writ
7 	{22} 	In light of our holding that the settlement agreements are subject to disclosure
8 under IPRA, we next address Respondent's argument that there was insufficient
9 evidence in the record in this instance for the district court to grant the Writ.
10 Respondent alleges (1) the facts alleged in the Petition were not sufficient; (2)
11 	Respondent's denial of facts asserted in the Petition showed deficient facts; and (3)
12 the district court improperly failed to conduct an in camera review of the settlement
13 	agreements to determine if they involved public business. We are unpersuaded.
14 Respondent itself denoted by list those settlements between Respondent and inmates
15 	at New Mexico correctional facilities that are responsive to Petitioners' IPRA
16 requests when it produced a chart listing the settlement amounts and the facilities
17 where the plaintiff inmates were held. Respondent admitted it was under contract
18 with NMCD to provide onsite medical services for inmates in various New Mexico
19 correctional facilities and the settlement documents at issue "are the result of
20 settlement of allegations concerning sexual assault[,]" and "the settlement agreement
21 	[r]eleasors are prior and in most cases, 	current correctional facility inmates."
15

1 Additionally, Respondent conceded that "many asp~cts of [its] provision of services
2 to [NMCD] are subject to [IPRA] because [it] does perform a public function when
3 it provides medical services. Thus, despite Respondents arguments, we conclude
4 there was sufficient evidence in the record for the district court to find that the
5 settlement agreements were public records.
6 	{23} 	Respondent also argues that the district court's failure to review the settlement
7 agreements in camera before granting the Writ was an abuse of discretion. While
8 courts may utilize in camera review of documents in determining a question of
9 responsiveness to an IPRA request, it is not required in every circumstance. See
10 ACLU ofNM v. Duran, 2016-NMCA.;063,, 45,392 P.3d 181 (stating that "[w]here
11 	appropriate, courts should conduct an in camera review of the documents at issue"
12 when determining if documents are responsive or if privilege applies under IPRA).
13 	In this circumstance, in camera review was not required given the facts already in
14 the record and given this Court's holding in Board of Commissioners of Dona Ana
15 	County that settlement agreements resulting from civil claims based on criminal
16 	sexual acts by county detention officers against inmates were subject to production
17 under 	IPRA. 	Accordingly, 	the 	district 	court 	did. not 	abuse 	its 	discretion 	by
18 	determining the settlement agreements in this case were subject to production under
19 IPRA without an in camera review.
16

1 Use of Mandamus Was Proper to Require Respondent to Produce Public
2 Records Pursuant to IPRA Requests
3 {24} 	Citing Brantley Farms v. Carlsbad Irrigation District, 1998-NMCA-023, 124
4 N.M. 698, 954 P.2d 763, Respondent belatedly argues on appeal that the district
5 court's grant of mandamus relief was impermissible because no record "clear[ly]
6 and undisputed[ly established] that the facts and conditions provided in the statute
7 exist"2 as it is not a matter of settled law that the settlement agreements are public
8 records subject to IPRA and instead poses a fact intensive inquiry ill-suited for
9 resolution by writ of mandamus. Respondent's argument is made despite the fact
10 that trial counsel in district court was perfectly content to contest the case in a
11 	mandamus proceeding without once questioning the propriety of that remedy.
12 Although we could discard Respondent's newfound argument on preservation
2
Respondent's argument regarding the propriety of mandamus proceedings in
this case is presented for the first time on appeal.S~e_ Woolwine v. Furr 's,lnc., 1987-
NMCA-133, 120, 106 N.M. 492, 745 P.2d 717 ("To preserve an issue for review on
appeal, it must appear that appellant fairly invoked a ruling of the [district] court on
the same grounds argued in the appellate court."); see also Sandoval v. Baker Hughes
Oilfield Operations, Inc., 2009-NMCA-095, ·1 56, 146 N.M. 853, 215 P.3d 791
(stating the primary purposes for the preservation rule as "( 1) to specifically alert the
district court to a claim of error so that any mistake can be corrected at that time, (2)
to allow the opposing party a fair opportunity to respond to the claim of error and to
show why the court should rule against that claim, and (3) to create a record
sufficient to allow this Court to make an informed decision regarding the contested
issue."). Nonetheless, Rule 12-321 NMRA permits an appellate court to consider
unpreserved issues if such pertain to a matter of general public interest. Given the
importance ofIPRA's role in providing the public with access to information about
its government, and because the question of law presented has been fully briefed by
both parties and is a matter of general public interest, we resolve the issue on the
merits.
17

1 grounds, given the importance of procedural as well as substantive clarity in the
2 context of IPRA, we reach its merits nonetheless.
3 {25} 	Respondent is correct that "[m]andamus lies only to force a clear legal right
4 against one having a clear legal duty to perform an act and where there is no other
5 plain, speedy and adequate remedy in the ordinary course of law." Brantley Farms,
6 1998-NMCA-023, 1 16. In the event that common law is here not enough, within
7 IPRA itself Section 14-2-12(B) states 	''[.al district court may issue a writ 	of
8 mandamus or order an injunction or other appropriate remedy to enforce the
9 provisions 	of [IPRA]." Only in its reply brief does Respondent concede that
10 mandamus relief is available under IPRA, but contends that it is inappropriate in the
11 	instant 	case 	because 	this 	situation 	does 	not 	require 	"extraordinary 	remedy"
12 	contemplated by mandamus. Arguing that mandamus is but one remedy available to
13 	petitioners seeking to enforce IPRA requests, and citing NMSA 1978, Section 44-2-
14 	5 (1884) (providing that a writ of mandamus will not issue in a case where a different
15 	adequate remedy is available), Respondent seeks reversal of the Writ. Respondent
16 also cites the district court's description of the settlement agreements issue as "novel
17 and complex," despite that language referring only to the difficulty of the case in
18 	relation to the amount of attorney fees sought by Petitioners, as proof that mandamus
19 was improperly granted on unsettled law. We are not persuaded.
20 	{26} 	We conclude that under IPRA, as Respondents concede, Petitioners have a
21 	clear legal right of enforcement against Respondent, and Respondent has· a clear
18

1 legal duty to provide public records to Petitioners under Section 14-2-12. See§ 14-
2 	2-5. (providing that allowing public to inspect public records pursuant to IPRA is a
· 3 routine duty of public officers and employee.s) ..This is plain because Respondent
4 acted on behalf of a public entity by providing medical care to inmates at various
5 New Mexico correctional and detention facilities. Thus, the overarching legal duty
6 of Respondent and the underpinning legal right of Petitioners here is established.
7 Combined· with the facts that the Legislature's express inclusion of mandamus
8 proceedings as one tool by which IPRA may be enforced, and that the question of
9 law centers around specific and similar known documents, we conclude there to be
10 no 	error 	in 	Petitioners' 	and 	the 	district 	court's 	employment 	of mandamus
11 	proceedings in this case. Indeed, the Writ itself demonstrates that the district court
12 considered both the nature of Respondent.' s pubiic responsibilities along with the
13 	nature of the disputed documents and arrived at its conclusion both cautiously and
14 under the appropriate criteria associated with mandamus proceedings. Coupled with
15 	our conclusions that third-party settlement agreements resulting from the provision
16 	of medical care to New Mexico inmates provided under a contract with the State are
17 subject to disclosure under IPRA, and that the record in this case was sufficient to
18 	qualify the agreements at issue as public documents, we affirm the Writ in its
19 entirety.
19

1 Attorney Fees Were Properly Awarded By the District Court
2 	{27} 	"A factual determination by the· district court that an IPRA fee request is
3 reasonable when weighed against the results· obtained in the litigation will be
4 disturbed only when the award is contraryto logic and reason." ACLU ofN.M, 2016-
5 NMCA-063, 141 (internal quotation marks and citation omitted). The district court
6 here concluded "that Petitioners' attorneys did not seek an enhancement of their
7 hourly rates for the work performed in this case[,]" and also concluded that the award
8 was "reasonable in light of the difficulty of the case, certainly the risk involved, and
9 the rates oflawyers with comparable experience." Respondent argues that the district
10 court abused its discretion in awarding Yohalem' s fees at $400 an hour because the
11 	award rested "on contradictory conclusions that were not supported by substantial
12 evidence[.]" Specifically, Respondent argued that the district court "concluded that
13 	[c]ounsel did not seek a contingency premium~ and that no such premium was
14 awarded ... [y]et elsewhere in its oral ruling, the district court held that [c]ounsel's
15 	requested rate was justified by the contingent nature 	of his representation of
16 Petitioners." Respondent reasoned that awarding an enhancement for attorney fees
17 under IPRA was improper because the factors 	to be assessed in determining
18 reasonableness suggest that the court may not consider contingency fees.
19 	{28} 	The only evidence presented by Respondent to prove that the attorney fee
20 award was bolstered with an enhancement is· Petitioners' assertion in their Motion
21 	that counsel's "hourly rate is based in part on the contingent nature of [his]
20

1 representation of Petitioners." But the district _court stated that no enhancement was
2 included in its award, and we have no evidentiary basis to conclude otherwise. TBus,
II
3 the district court did not abuse its discretion by awarding the $400 an hour attorney
4 fee because there was substantial evidence to support such an award and because the
5 district court properly concluded that contingency fees were not a part of the attorney
6 fee award. The district court's findings, including its thorough analysis and weighing
7 	of factors, explain its conclusion that Petitioners' requested attorney fees were
8 proper. The court considered Yohalem's and Murray's years of experience and
9 record of fee awards, as well as expert Mr. Davis's unrebutted declaration explaining
10 market rates in the relevant jurisdiction in its determination. The district court found,
11
12
13
14
15
16
17
18
19
[w ]hile the rates for Mr. Y ohalem and Ms. Murray are toward the high
end of the market range for comparable. attorneys doing comparable
work in this geographic market, these rates are reasonable, appropriate
and within the range for the work performed in this case; further, these
rates were not rebutted with any contrary evidence by Respondent. The
rates 	are 	especially justified 	in 	light 	of the 	attorneys' 	skill 	and
experience and the successful outcome of this novel and complex case.
The hourly rates and hours worked approved herein do not include any
enhancement.
20 The district court's attorney fee award was supported by substantial evidence and
·21 	Respondent has failed to show how the fee award is contrary to logic and reason.
22 	{29} 	Respondent also argues that the district court abused its discretion by not
23 	finding the fee award was improper because Petitioners failed to seek Respondent's
24 	concurrence before filing the Motion. Rule 1.;.007 .1 NMRA requires a movant to
25 	consult with opposing counsel to determine if a motion is opposed. The district court
21 ..

1 excused Petitioners' failure in this regard because, as was demonstrated at the
2 hearing on attorney fees, the Motion was observably contested by Respondent.3 We
3 do 	not 	consider 	the 	district 	court's 	excusal 	of ,Petitioners' 	failure 	to 	seek
4 Respondent's position on the Motion to have been an abuse of discretion.
5 CONCLUSION
6 	{30} 	For the foregoing reasons, we affirm the district court's orders granting writ
7 of mandamus and awarding attorney fees to Petitioners.
8
9
WE CONCUR:
J. MILES HANISEE, Judge
12 	e~G.~~13 	RICHARD C. BOSSON, Ju ~Pro Tempore
3 We remind Respondent that it was provided a similar courtesy when the
district court excused it from filing its answer to the Petition ten days late earlier in
the district court proceedings 	and the 	district court 	considered the 	merits 	of
Respondent's answer even though it was untimely filed.
22