April 20, 2016 – American Civil Liberties Union of New Mexico v. Dianna J. Duran and Christina Sanchez, No. 33,781

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: 	April 20, 2016
NO. 33,781
AMERICAN CIVIL LIBERTIES UNION
OF NEW MEXICO,
Plaintiff-Appellee,
v.
DIANNA J. DURAN,
Defendant-Appellant,
and
CHRISTIANA SANCHEZ,
Defendant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Clay Campbell, District Judge
ACLU of NM Foundation
Alexandra Freedman Smith
Albuquerque, NM
Law Office of Philip B. Davis
Philip B. Davis
Albuquerque, NM
for Appellee

Hector H. Balderas, Attorney General
Santa Fe, NM
Fuqua Law & Policy, P.C.
Scott Fuqua, Special Assistant Attorney General
Santa Fe, NM
for Appellant

1In the district court, this case was captioned American Civil Liberties Union
of New Mexico v. Dianna J. Duran and Christiana Sanchez. Sanchez is not a party to
this appeal. When appropriate, we refer to Duran and Sanchez collectively as
Defendants.
OPINION
WECHSLER, Judge.
{1} 	This case presents yet another opportunity to interpret provisions of our
Inspection of Public Records Act—this time with respect to the district court’s award
of attorney fees.
{2} 	Appellant, former Secretary of State Dianna Duran, appeals the district court’s
order granting attorney fees.1 Appellant’s primary argument is premised upon her
assertion that the final responsive records to Appellee American Civil Liberties Union
of New Mexico’s public records request were produced on May 25, 2012. Taking this
assertion as true, Appellant argues that her production of any records after May 25,
2012 could not form the basis of “successful” litigation under the statute either
because (1) the subsequently produced records were non-responsive or (2) Appellee
already possessed the records at the time of production. In a related claim, Appellant
argues that the district court’s award of attorney fees accrued after May 25, 2012 was
not “reasonable” as that word is used in the statute because Appellee’s sole purpose

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in continuing the litigation beyond that date was to investigate the validity of
Defendants’ claim that they possessed no additional responsive records.
{3} 	We conclude that Appellant violated the Inspection of Public Records Act by
withholding responsive records until the last of those records were produced on June
5, 2013. Because additional responsive records that were previously withheld were
produced during the pendency of the litigation, Appellee’s litigation was “successful”
as that word is used in the statute. For the same reason, and for additional reasons
related to Defendants’ conduct as discussed below, the district court’s grant of
attorney fees was also “reasonable.”
{4} 	Appellant’s secondary argument is that the nature of Appellee’s settlement offer
rendered the accrual of any post-settlement-offer attorney fees unreasonable under the
statute. Because this argument is also unsupported by New Mexico law, we affirm.
BACKGROUND
{5} 	On March 15, 2011, the New Mexico Secretary of State’s Office announced
that an internal investigation had revealed one hundred seventeen instances in which
foreign nationals registered to vote in New Mexico and that, in thirty-seven of those
instances, the illegal registrants had actually voted in New Mexico elections. In
response to this statement, Appellee filed a request with the Secretary of State’s
Office, pursuant to the Inspection of Public Records Act (IPRA), NMSA 1978, §§ 14-

3
2-1 to -12 (1947, as amended through 2013), requesting production of all public
records that supported the allegations. The same day, Appellee filed a similar IPRA
request with the Governor’s Office.
{6} 	The Governor’s Office produced various public records relevant to this
litigation in response to Appellee’s IPRA request. Among these records was an email
thread (the Colorado emails) dated March 8, 2011 to March 9, 2011. The Colorado
emails began with an email from the Colorado Department of State that was
forwarded to the Secretary of State’s Office Bureau of Elections Director, Bobbi
Shearer, and continued as a discussion between Shearer and the Director of Policy and
Planning for the Governor’s Office, Matt Kennicott. The emails between Shearer and
Kennicott discussed a proposed database cross-check between the Secretary of State’s
Office and the Motor Vehicle Division of the Department of Taxation and Revenue
(MVD) for the purpose of determining whether non-citizens were registered to vote
in New Mexico.
{7} 	On March 31, 2011, Defendants formally responded to Appellee’s IPRA
request. Defendants did not produce the Colorado emails but did produce twelve
redacted emails and one letter addressed to a New Mexico assistant attorney general.
Additionally, Defendants described certain responsive records that were being
withheld under IPRA disclosure exceptions. Defendants did not disclose the existence,

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or justify the withholding, of the Colorado emails but instead specifically stated “[t]he
Secretary of State’s Office does not possess any [responsive] documents that reflect
communications between the Office of the Secretary of State and the Governor’s
Office[.]”
{8} 	On April 11, 2011, Appellee sent a second IPRA request to the Secretary of
State’s Office. This letter supplemented Appellee’s original IPRA request with
requests for the production of additional records. Defendants produced no additional
records in response to Appellee’s supplemental request.
{9} 	On July 20, 2011, Appellee filed this lawsuit to force the production of public
records allegedly withheld in violation of IPRA. In its complaint, Appellee alleged
that the Colorado emails provided the impetus for the Secretary of State’s Office
investigation into whether non-citizens were illegally registered to vote in New
Mexico. The complaint disputes Defendants’ denial of the existence of responsive
communications between the Secretary of State’s Office and the Governor’s Office
by reference to the Colorado emails.
{10} 	In their answer, Defendants acknowledged the existence of, and confirmed
certain content within, the Colorado emails. During the discovery process, Defendants
produced additional records, including spreadsheets used by the Secretary of State’s
Office in its review of New Mexico’s voter registration file and voter registration

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cards for one hundred fifteen of the one hundred seventeen individuals that the
investigation identified as registered voters despite not being New Mexico residents.
{11} 	On October 20, 2011, Defendants provided a privilege log that outlined certain
documents withheld from production, including: (1) a list of one hundred seventeen
names that appeared in both the Secretary of State’s voter file and the MVD foreign
national database (list of 117), and (2) a list of thirty-seven names of registered voters
who may not be New Mexico citizens but appear to have voted in a New Mexico
election (list of 37).
{12} 	On January 12, 2012, Appellee filed a motion for summary judgment,
requesting that the district court order production of the two lists, as well as all other
records responsive to its IPRA requests. The lists then became the subject of an email
exchange between the parties. On February 6, 2012, Appellee sent a letter to
Defendants outlining its understanding as to the existence of the two lists. On
February 13, 2012, Defendants responded with a letter intended to clarify “confusion
about the state of the documents at issue.” As clarification, the letter stated, “[w]hen
I say that the Secretary of State’s Office did not create such lists, what I mean is that
such lists do not physically exist. . . . In identifying those voters, the Secretary of State
did not generate any document separately listing them.”

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{13} 	The next day, Appellee responded with a letter stating, “[g]iven the confusion
surrounding the public records, [Appellee] feel[s] that it is necessary to depose
[Appellant] in order to obtain her responses under oath.” Appellee then filed notice
to conduct an in-person deposition of Appellant.
{14} 	On March 2, 2012, Defendants filed their response to Appellee’s motion for
summary judgment. The response stated that (1) the list of 37 does not exist, (2) the
list of 117 would be produced upon issuance of a district court order clarifying non-
liability under state law, and (3) “[t]he Secretary either has already produced or will
immediately produce” all other responsive documents. Attached to Defendants’
response was an affidavit of the Secretary of State’s Office Chief of Staff, Kenneth
Ortiz. The affidavit outlined the investigative procedure leading to the March 15, 2011
announcement and described the generation of the list of 117. The affidavit
additionally stated that a physical copy of the list of 37 was never generated.
{15} 	On March 6, 2012, Defendants filed a motion for protective order to prevent
Appellee from conducting an in-person deposition of Appellant. In support of the
motion, Defendants argued that Appellant had no personal knowledge of the
investigative process or documents at issue. Appellee filed a response outlining
Defendants’ confusion as to the existence of the list of 117 and the list of 37, as well
as motions to depose Ortiz and Shearer. Appellee specifically noted,

2The pages of deposition testimony in which Shearer authenticates the Colorado
emails are not included in the record proper. However, the parties agree that the
authentication occurred.
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Given the wildly conflicting accounts of the documents which
may or may not exist . . . [Appellee] must depose [Appellant] to ascertain
whether there is, in fact, a list of thirty seven people who allegedly voted
illegally, and whether there are additional documents that are responsive
to [Appellee’s] IPRA requests that have not been produced. Given the
multiple inconsistent and contradictory claims as to whether these
documents exist at all, it is unreasonable to expect [Appellee] to rely on
representations made by counsel instead of obtaining sworn statements.
Shearer’s deposition was conducted on May 4, 2012. During this deposition, Shearer
was presented with the Colorado emails, which she authenticated.2
{16} 	The district court entered a stipulated order of partial summary judgment as to
the list of 117. In doing so, the court noted that the “remaining issues and requests for
relief . . . are not affected by this [s]tipulation and remain pending.” The list of 117
was produced on May 25, 2012.
{17} 	In June 2012, reports circulated indicating that executive branch employees
were using private or personal email accounts to conduct state business. See Dan
Boyd, Private Email Flap Grows, Albuquerque Journal, June 16, 2012,
http://www.abqjournal.com/113169/news/private-email-flap-grows.html. Following
these reports, Appellee requested production of all emails sent to or from private email
accounts that were responsive to its IPRA requests. No responsive emails were

8
produced in response to Appellee’s request. On June 25, 2012, Appellee filed a
motion to compel production of all responsive public records, including any emails
sent to or from private email accounts. Defendants responded, arguing that Appellee
lacked good faith to allege such emails existed and denying that any responsive emails
exist. The district court granted Appellee’s motion, ordering:
1. 	Defendants are ordered to produce all [e]mails pertaining to the
matters described in the two IPRA requests in this case, including
all [e]mails sent to and/or copied to and/or received by [Appellant]
on private and personal email accounts.
2. 	Within 15 days after the entry of this [o]rder, [Appellant] shall
submit a sworn [a]ffidavit to [Appellee] verifying that all [e]mails
pertaining to the matters described in the two IPRA requests in
this case, including emails sent and received on private and
personal email accounts have been produced. If there are no
[e]mails pertaining to the matters described in the two IPRA
requests in this case that were sent to and/or copied to and/or
received by [Appellant] on private and personal email accounts,
she shall so state.
(Emphasis added.) On the same day, the district court granted Defendants’ motion for
protective order, prohibiting Appellee from conducting an in-person deposition of
Appellant. In lieu of an in-person deposition, Appellee was granted permission to
conduct a deposition on written questions. Appellee submitted one hundred eighty-
eight deposition questions to be answered by Appellant.
{18} 	In response to the district court’s order, on August 24, 2012, Appellant
submitted an affidavit stating, in pertinent part,

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3. 	I did not use any personal or private email account to
communicate to anyone any information related to the
March 2011 investigation conducted by my [o]ffice with
respect to the two IPRA requests in this case.
4. 	There are no emails sent to and/or received or copied to
and/or received by me 	on private or personal email
accounts pertaining to the matters described in the two
IPRA requests in this case.
(Emphasis added.) Defendants then filed a second motion for a protective order
seeking protection from one hundred fifty-seven of the one hundred eighty-eight
deposition questions submitted by Appellee. By way of background in their motion,
Defendants outlined the various public records produced to date and stated “the
Secretary of State’s Office has produced all of the documents in its possession,
custody, or control responsive to [Appellee’s] requests.” Appellee submitted a
response in opposition that detailed Defendants’ “[h]istory of [n]on-[d]isclosure in the
[l]itigation[.]” The Colorado emails featured prominently in this argument.
{19} 	On October 18, 2012, Appellee filed a motion for finding of contempt, claiming
that Appellant’s August 24, 2012 affidavit was non-responsive to the court’s order in
that it failed to “verify” that all responsive emails had been produced. The motion
specifically noted that “[t]he failure of the [Secretary of State] to produce [the
Colorado emails] . . . casts doubt over Defendants’ repeated representation that all
records responsive to [Appellee’s] IPRA requests have been produced.” Appellee filed

10
a second motion to conduct an in-person deposition of Appellant, stating that
Appellant “has shown through her refusal to answer [one hundred fifty-seven out of
one hundred eighty-eight] deposition questions that she holds an unnecessarily narrow
interpretation of what documents are responsive to [Appellee’s] IPRA requests[.]”
{20} 	On November 5, 2012, Defendants filed a response to Appellee’s motion for
contempt. As a basis for their opposition, Defendants argued that (1) IPRA did not
require production of the Colorado emails because Appellee already possessed the
Colorado emails, and, in the alternative, (2) IPRA did not require production of the
Colorado emails because they were non-responsive. Defendants did not produce the
Colorado emails at this time.
{21} 	Following the filing of additional responses and replies, the district court held
a hearing on Appellee’s motion to compel on January 7, 2013. During the hearing,
Appellee highlighted the confusion surrounding the existence and production of the
list of 117 and the list of 37. Appellee then argued that Defendants’ failure to provide
all responsive documents or to comply with the court’s order compelling production
justified the continuing litigation. Defendants argued at length that the Colorado
emails are non-responsive to Appellee’s IPRA requests, and, therefore, were not
subject to the court’s order. The district court denied Appellee’s motion, but made the
following comments:

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[W]hat I definitely remember saying to [counsel for Defendants] was
[that] your client is begging to be deposed. So I assumed that that
statement is why I have a couple of pending motions to depose your
client, in addition to everything else. Because your client is being asked
very direct questions, and your client appears to be answering the
questions that she wants to answer or having people answer questions
that she wants to have them answer[] and not fully answering the
questions. So I mean, I can appreciate where the [Appellee’s] anxiety
comes from.
The court entered a second order requiring that Appellant “shall submit a sworn
affidavit to [Appellee] verifying that all emails pertaining to the matters described in
the two IPRA requests . . . have been produced.” The court also issued orders denying
Appellee’s motion to conduct an in-person deposition of Appellant and granting in
part Defendants’ second motion for a protective order. Appellant was required to
answer one hundred forty-five of the proposed one hundred eighty-eight deposition
questions.
{22} 	Appellant’s deposition on written questions was conducted on April 30, 2013.
Following the deposition, Defendants contacted Appellee by email to determine
whether unresolved issues remained. Appellee responded that materials responsive to
its IPRA requests, specifically the Colorado emails, remained unproduced. Defendants
ultimately produced the Colorado emails on May 23, 2013 and attachments thereto on
June 5, 2013. The district court granted a stipulated dismissal, except as to attorney
fees, costs, and expenses, on September 3, 2013.

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{23} 	The district court heard arguments related to Appellee’s fee motion on March
12, 2014. At this hearing, and in its subsequent order, the district court found that
“counsel’s hours spent in this case for which [Appellee] seeks compensation were all
reasonable and necessary to [Appellee’s] successful prosecution of this IPRA
lawsuit.” Attorney fees were granted for the work of merits counsel in the amount of
$71,239.50. Attorney fees were granted for the work of fee counsel in the amount of
$15,729.00. This appeal resulted.
STANDARD OF REVIEW
{24} 	Appellate courts review an award of attorney fees for abuse of discretion.
Lebeck v. Lebeck, 1994-NMCA-103, ¶ 27, 118 N.M. 367, 881 P.2d 727. A district
court abuses its discretion when “a ruling is clearly contrary to the logical conclusions
demanded by the facts and circumstances of the case.” Sims v. Sims, 1996-NMSC-078,
¶ 65, 122 N.M. 618, 930 P.2d 153. To the extent that Appellant’s arguments require
statutory interpretation, we apply de novo review. State v. DeAngelo M., 2015-NMSC-
033, ¶ 7, 360 P.3d 1151.
RESPONSIVENESS OF PUBLIC RECORDS IN IPRA LITIGATION
{25} 	Section 14-2-1(A) of IPRA provides that “[e]very person has a right to inspect
public records” unless a specified exception precludes disclosure. IPRA’s purpose—to
promote the existence of (1) an informed electorate and (2) transparency in

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governmental affairs—is documented in the legislation itself and in our appellate case
law. See § 14-2-5 (“Recognizing that a representative government is dependent upon
an informed electorate, the intent of the [L]egislature in enacting [IPRA] is to ensure,
and it is declared to be the public policy of this state, that all persons are entitled to the
greatest possible information regarding the affairs of government and the official acts
of public officers and employees.”); San Juan Agric. Water Users Ass’n v. KNME-TV,
2011-NMSC-011, ¶ 16, 150 N.M. 64, 257 P.3d 884 (“IPRA is intended to ensure that
the public servants of New Mexico remain accountable to the people they serve.”);
State ex rel. Newsome v. Alarid, 1977-NMSC-076, ¶ 34, 90 N.M. 790, 568 P.2d 1236
(“The citizen’s right to know is the rule and secrecy is the exception.”), superseded
on other grounds by statute as stated in Republican Party of N.M. v. N.M. Taxation
& Revenue Dep’t, 2012-NMSC-026, ¶¶ 14-16, 283 P.3d 853.
{26} 	To initiate a public records request, any person may contact the records
custodian at the desired governmental entity and “identify the records sought with
reasonable 	particularity.” 	Section 	14-2-8(C). 	Email 	correspondence 	by 	state
employees constitutes a public record as defined in the statute. See § 14-2-6(G).
{27} 	Appellant’s argument in this case hinges, in substantial part, on whether the
Colorado emails are responsive to Appellee’s IPRA request. While the term
“responsive” is appropriately used by litigants to describe the nature of public records,

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it does not appear in the statute. See §§ 14-2-1 to -12. To determine whether a public
record is “responsive,” courts must evaluate whether the IPRA request identified the
record “with reasonable particularity.” Section 14-2-8(C).
{28} 	The Colorado emails began with an email from Judd Choate, Director of the
Colorado Division of Elections. Choate’s email was addressed to the National
Association of State Election Directors (NASED). The email stated, in pertinent part,
At 1pm this afternoon . . . Colorado Secretary of State Scott Gessler will
hold a news conference to discuss legislation under consideration in the
Colorado House that would allow the Colorado Department of State to
spot check and investigate voter registrations for the possibility that non-
citizens are 1) currently registered to vote, 2) are being accidentally
registered to vote, or 3) are willfully seeking to register in violation of
both state and potentially federal law.
Simultaneous with this press conference, the Department of State will
issue a report outlining the research we have undertaken to determine the
number of persons currently registered who may not be U.S. citizens. In
short, that research has found that there are certainly hundreds, and likely
thousands, of non-citizens who are registered to vote in the state of
Colorado.
I wanted to warn you that this report will be issued in case it becomes a
national story requiring that you address the issue relative to your state.
Choate’s email was forwarded by NASED personnel to Shearer. Shearer forwarded
Choate’s email to Kennicott with comments stating, “Colorado is going to announce
this today. We do already have an agreement in place [between the Secretary of
State’s Office], [MVD], and [S]ocial [S]ecurity to cross-check. If MVD would do it,

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we could run a cross-check this week. What do you think? Tell MVD to coordinate
with us?” Shearer and Kennicott then exchanged emails discussing implementation
of a cross-check of the Secretary of State’s Office and MVD databases.
{29} 	Following the March 15, 2011 announcement, Appellee submitted two separate
IPRA requests: one on March 16, 2011 and another on April 11, 2011. In these
requests, Appellee requested nine types of documents related to the Secretary of
State’s Office investigation into potential voter fraud in New Mexico. One of the
requests included “[a]ny documents that reflect communications between the Office
of the Secretary of State and any one at the Governor’s Office related to alleged and/or
proven voter fraud involving foreign nationals and/or any irregularities noted in the
master list of registered voters in New Mexico.”
{30} 	While Appellee’s request is somewhat unwieldy as written, it can be
deconstructed using basic grammar. The use of “and/or” within the request indicates
that the request contemplates both conjunctive and disjunctive readings. Because the
request uses “and/or” twice, numerous possible readings are included within the
request, including, “Any documents that reflect communications between the Office
of the Secretary of State and any one at the Governor’s Office related to alleged or
proven voter fraud involving foreign nationals or any irregularities in the master list
of registered voters in New Mexico.” Since a disjunctive reading anticipates removal

16
of the content following the word “or,” another grammatically correct reading is,
“Any documents that reflect communications between the Office of the Secretary of
State and any one at the Governor’s Office related to alleged voter fraud involving
foreign nationals.”
{31} 	The subject matter of Choate’s email to NASED was alleged voter fraud
involving foreign nationals. Choate’s email was forwarded between personnel in the
Secretary of State’s Office and the Governor’s Office. Appellant argues on appeal that
the Colorado emails are not responsive because they do not contain allegations of
voter fraud in New Mexico. This argument is misplaced given the construction of the
request. Appellee’s IPRA request was crafted “with reasonable particularity” to make
the Colorado emails responsive to the request. Section 14-2-8(C).
SUCCESS IN IPRA LITIGATION
{32} 	IPRA’s enforcement provision provides that “[t]he 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 the provisions of [IPRA].” Section
14-2-12(D) (emphasis added). Appellant argues that Appellee is not entitled to an
award of attorney fees accrued after May 25, 2012 because Appellee’s IPRA litigation
after May 25, 2012 was not “successful” as that word is used in IPRA. As a basis for
this argument, Appellant claims that no responsive documents were produced after

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May 25, 2012. As discussed immediately above, this argument fails because the
Colorado emails, produced by Defendants on May 23, 2013 and June 5, 2013, were
responsive to Appellee’s IPRA request.
{33} 	Alternatively, Appellant argues that production of the Colorado emails cannot
constitute success under IPRA because Appellee already had possession of the
Colorado emails at the time litigation was filed, and, as a result, Defendants did not
withhold or deny Appellee access to the records. To determine whether IPRA
litigation that results in the production of responsive records already in a litigant’s
possession is “successful” as that word is used in IPRA, we apply principles of
statutory construction.
{34} 	Because the word “successful” is not defined, we must determine its meaning
in the context of the statute. An appellate court’s “primary purpose in interpreting a
statute is to ascertain and give effect to legislative intent.” Maes v. Audubon Indem.
Ins. Grp., 2007-NMSC-046, ¶ 11, 142 N.M. 235, 164 P.3d 934 (internal quotation
marks and citation omitted). To ascertain legislative intent, we look first to the plain
meaning of the words of the statute. See State v. Tsosie, 2011-NMCA-115, ¶ 13, 150
N.M. 754, 266 P.3d 34 (“We determine legislative intent by first looking at the words
chosen by the Legislature and the plain meaning of those words.” (alteration, internal
quotation marks, and citation omitted)).

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{35} 	We frequently use dictionary definitions to assist in determining the plain
meaning of statutory language. See, e.g., State v. Boyse, 2013-NMSC-024, ¶ 9, 303
P.3d 830 (“Under the rules of statutory construction, [the appellate courts] first turn
to the plain meaning of the words at issue, often using the dictionary for guidance.”).
Dictionary definitions of the word “successful” include, “resulting or terminating in
success: having the desired effect[,]” Webster’s Third New International Dictionary
of the English Language Unabridged 2282 (3d ed. 1993), and “accomplishing an aim
or purpose[.]” 	New Oxford American Dictionary 	1737 (3d ed. 2010). These
definitions, as well as the context in which the word “successful” is used in the statute,
appear to evince a legislative intent to award attorney fees generated during litigation
that secures production of previously denied responsive documents. See § 14-2-12(D);
Rio Grande Sun v. Jemez Mountains Pub. Sch. Dist., 2012-NMCA-091, ¶ 9, 287 P.3d
318 (holding that “the party who unsuccessfully resists a statutorily-compelled,
socially beneficial action” is subject to an award of attorney fees); see also Faber v.
King, 2015-NMSC-015, ¶ 31, 348 P.3d 173 (stating that a “successful litigant . . .
obtain[s] the documents he or she sought in the first place”).
{36} 	Appellant’s argument that the production of documents already in Appellee’s
possession cannot form the basis of “successful” IPRA litigation harkens back to our
appellate courts’ application of the “rule of reason” in IPRA litigation, an option now

19
foreclosed by our Supreme Court. See Republican Party of N.M., 2012-NMSC-026,
¶ 16 (“[C]ases applying the ‘rule of reason’ to all of the exceptions enumerated by the
Legislature are overruled to the extent they conflict with this [o]pinion.”).
{37} 	Section 14-2-1(A), which provides public policy exceptions to IPRA’s
disclosure requirements, does not include prior possession as a legitimate ground for
withholding public records. See Republican Party of N.M., 2012-NMSC-026, ¶ 16
(“[C]ourts now should restrict their analysis to whether disclosure under IPRA may
be withheld because of a specific exception contained within IPRA[.]”). Appellant
cites no cases supporting the proposition that an IPRA litigant’s possession of a public
record negates an agency’s duty to respond. See In re Adoption of Doe, 1984-NMSC-
024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 (“[Our appellate courts] assume where
arguments in briefs are unsupported by cited authority, counsel after diligent search,
was unable to find any supporting authority.”).
{38} 	Additionally, we disagree with Appellant’s position that IPRA’s sole purpose
is to make government records—that is, the tangible documents—available to the
public. Section 14-2-5 of IPRA provides that “the intent of the [L]egislature in
enacting [IPRA] is to ensure . . . that all persons are entitled to the greatest possible
information 	regarding the affairs of government[.]” (Emphasis added.) While
information can come in the form of tangible documents, it can also be gathered based

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upon an agency’s denials. See § 14-2-11(B) (“If a written request has been denied, the
custodian shall provide the requester with a written explanation of the denial.”).
Denials are valuable information-gathering tools. With respect to any given record
request, the absence of either (1) production of responsive records or (2) a conforming
denial based upon a valid IPRA exception sends a strong message to the requester that
no responsive public record exists.
{39} 	Our independent review reveals that numerous other state courts interpret their
own public records legislation to require production of responsive documents under
these circumstances. See, e.g., Wichita Eagle & Beacon Pub. Co. v. Simmons, 50 P.3d
66, 87 (Kan. 2002) (holding that a governmental agency may not “refuse to produce
records because such records are available from another or a more ‘appropriate’
source”); Smith v. Sch. Dist. No. 45, 666 P.2d 1345, 1349 (Or. Ct. App. 1983)
(holding that a “public body may not refuse to produce records subject to inspection
under [the act] just because the requester already possesses them”); Neighborhood All.
of Spokane Cty. v. Cty. of Spokane, 261 P.3d 119, 131 (Wash. 2011) (holding that
“[t]he fact that the requesting party possesses the documents does not relieve an
agency of its statutory duties”).
{40} 	As late as January 16, 2013, the district court ordered Appellant to verify by
affidavit that all responsive emails to Appellee’s IPRA requests had been produced.

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Appellant continued to withhold the Colorado emails until June 5, 2013. Because
Appellee’s litigation secured the production of previously denied responsive public
records, the litigation was “successful” as that word is used in the statute. See § 14-2-
12(D).
REASONABLENESS OF ATTORNEY FEES IN IPRA LITIGATION
{41} 	IPRA’s enforcement provision also requires courts to grant only “reasonable”
attorney fees to successful litigants. See § 14-2-12(D) (“The court shall award
damages, 	costs 	and 	reasonable 	attorney[] 	fees[.]” 	(emphasis 	added)). 	The
reasonableness of attorney fees is measured against an established set of objective
standards and criteria. Behrens v. Gateway Court, LLC, 2013-NMCA-097, ¶ 34, 311
P.3d 822. These standards and criteria include:
(1) the time and labor required—the novelty and difficulty of the
questions involved and skill required; (2) the fee customarily charged in
the locality for similar services; (3) the amount involved and the results
obtained; (4) the time limitations imposed by the client or by the
circumstances; and (5) the experience, reputation and ability of the
lawyer or lawyers performing the services.
Rio Grande Sun, 2012-NMCA-091, ¶ 13 (internal quotation marks and citation
omitted). These criteria relate generally to mathematic calculations that a district court
must conduct in the face of competing arguments by the parties: (1) what hourly rate
is the lawyer entitled to per hour, (2) how many hours should the project require, and
(3) what do other lawyers bill for similar work? See id. These quantitative questions

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are not at issue in this case. Instead, Appellant’s challenge is to the reasonableness of
the litigation itself after May 25, 2012—an overarching notion that must be addressed
through 	evaluation 	of 	the 	“results 	obtained” 	in 	the 	litigation. 	Id. 	A 	factual
determination by the district court that an IPRA fee request is reasonable when
weighed against the results obtained in the litigation will be disturbed only when the
award “is contrary to logic and reason.” Id. ¶ 10 (alteration, internal quotation marks,
and citation omitted).
{42} 	The purpose of IPRA’s enforcement provision is to “promote compliance and
accountability” from governmental entities. Faber, 2015-NMSC-015, ¶ 28. The
provision effectively amounts to a “fee-shifting statutory scheme[]” that “encourages
individuals to enforce IPRA on behalf of the public” and “ensure[s] that the entire
process is virtually costless to a successful litigant.” Id. ¶¶ 31-32 (internal quotation
marks and citation omitted).
{43} 	Appellant’s brief in chief correctly notes that “fees incurred in obtaining
documents from a state agency are prima facie reasonable.” Appellant then argues that
Appellee’s prosecution of the IPRA litigation after May 25, 2012 was not directed at
obtaining public records, but instead it was “expended in an effort to verify (or
disprove) the sworn assertions of the Secretary of State’s Office that it had fully
responded to Appellee’s IPRA request.” To summarize this argument, Appellant

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stated, “it is flatly unreasonable for a state agency to pay the freight for an IPRA
litigant’s paranoia.”
{44} 	The obvious problem with Appellant’s argument is that Appellee was not being
paranoid; Defendants were withholding responsive documents. See, e.g., Cox v. N. M.
Dep’t of Pub. Safety, 2010-NMCA-096, ¶ 17, 148 N.M. 934, 242 P.3d 501 (“New
Mexico’s policy of open government is intended to protect the public from having to
rely 	solely 	on 	the 	representations 	of 	public 	officials 	that 	they 	have 	acted
appropriately.” (internal question marks and citation omitted)). From the initial
complaint onward, Appellee claimed that Defendants were wrongfully withholding
the Colorado emails. Defendants’ answer essentially acknowledges their possession
of the Colorado emails. Despite repeated references to the Colorado emails by
Appellee throughout the litigation, Defendants failed to fully produce the records until
June 5, 2013. As such, Appellant’s argument that Appellee’s litigation efforts were
motivated by goals other than obtaining public records, or by mere paranoia, is not
legally sound.
{45} 	Appellant claims that the Colorado emails are not responsive to Appellee’s
IPRA request. As discussed above, we disagree. But to be clear, this opinion does not
hold that a governmental entity is required to produce records that it, in good faith,
believes to be unresponsive. However, when such withheld records are subsequently

24
revealed and determined to be responsive, those records may become the basis for an
award of attorney fees in IPRA litigation. Our IPRA jurisprudence contemplates in
camera review in circumstances in which the applicability of a disclosure exception
is in question. See Republican Party of N.M., 2012-NMSC-026, ¶ 49 (“Where
appropriate, courts should conduct an in camera review of the documents at issue as
part of their evaluation of privilege.”). We see no language in the statute or our case
law that would prohibit a similar practice with respect to a question of responsiveness.
{46} 	Appellee’s assessment of the veracity of Defendants’ claim that all responsive
documents had been produced was likely, and understandably, colored by Defendants’
initial and ongoing failure to produce the Colorado emails. Against this backdrop,
Defendants’ subsequent conduct justified Appellee’s continued efforts to determine
the existence of responsive records.
{47} 	Two examples stand out to this Court. First, early in the litigation, great
confusion—among both the parties and within the Secretary of State’s Office—arose
as to the existence of the list of 117 and the list of 37. Defendants created this
confusion by including these lists in its IPRA privilege log despite later revelations
that the lists did not physically exist. While mistakes happen during the course of
litigation, it is difficult to comprehend how documents that do not exist in tangible
form could appear on an IPRA privilege log; a log that exists solely to request that

25
tangible documents be protected from public disclosure. This confusion could
justifiably raise Appellee’s concerns as to the reliability of Defendants’ claims of full
production. Second is Appellant’s submission of a non-responsive affidavit in
response to the district court’s order aimed, presumably, at curtailing this litigation.
On August 17, 2012, the district court issued an order requiring that Appellant (1)
produce all emails responsive to Appellee’s IPRA requests and (2) provide an
affidavit stating that no additional responsive emails exist. In response, Appellant
submitted an affidavit stating, essentially, that she, individually, did not send or
receive any responsive emails. This affidavit failed to comply with the district court’s
order, and thereby, its deficiencies raised legitimate questions as to whether other
documents existed.
{48} 	Given both the responsiveness of the Colorado emails and the confusion created
by Defendants’ conduct throughout the litigation, we cannot say that the district
court’s ruling as to the reasonableness of the fees generated by Appellee during the
litigation constituted an abuse of discretion. Because Appellee’s actions were
reasonable, the district court’s award of attorney fees for the period of time between
May 25, 2012 and the conclusion of the litigation is consistent with the enforcement
provision of IPRA.
THE IMPACT OF A SETTLEMENT OFFER ON THE ACCRUAL OF
ATTORNEY FEES IN IPRA LITIGATION

26
{49} 	On September 29, 2011, Appellee sent a letter to Defendants for the purpose of
“exploring settlement possibilities[.]” This letter was expressly not an offer of
settlement but presented conditions under which Appellee would consider settlement.
Nearly a year later, Appellee sent a new letter in conformance with Rule 11-408
NMRA that offered to settle the litigation if Defendants complied with five conditions.
Two of the five conditions required that Defendants acknowledge “that there are no
records that prove that 117 foreign nationals were illegally registered to vote in New
Mexico elections” and “that there are no records that prove that thirty-seven (37)
foreign nationals had voted in New Mexico elections” as indicated in Appellant’s
March 15, 2011 statement. Appellant argues that no additional attorney fees should
have accrued following Appellee’s settlement offer because the terms of the offer did
not require that Defendants produce additional responsive records.
{50} 	“It is the policy of the law and of the State of New Mexico to favor settlement
agreements.” Navajo Tribe of Indians v. Hanosh Chevrolet-Buick, Inc., 1988-NMSC-
010, ¶ 3, 106 N.M. 705, 749 P.2d 90. Settlements entered by the parties “essentially
represent contractual agreements.” Lewis v. City of Santa Fe, 2005-NMCA-032, ¶ 11,
137 N.M. 152, 108 P.3d 558. A valid contract must be supported by an offer,
acceptance, consideration, and mutual assent. Flemma v. Halliburton Energy Servs.,
Inc., 2013-NMSC-022, ¶ 28, 303 P.3d 814. While consideration is an essential

27
component to any contract, courts generally do not weigh the terms of a contract in
determining its validity. See Figueroa v. THI of N.M. at Casa Arena Blanca, LLC,
2013-NMCA-077, ¶ 18, 306 P.3d 480 (“[E]very person . . . is entitled to dispose of
his property in such manner and upon such terms as he chooses; and whether his
bargain be wise and discreet or otherwise, or profitable or unprofitable, are
considerations not for the courts of justice, but for the party himself to deliberate
upon.” (internal quotation marks and citation omitted)).
{51} 	Appellant appears to argue that the terms of Appellee’s settlement offer indicate
that Appellee was abusing the IPRA process to extricate inherently political
statements. We disagree. The record before this Court indicates that Appellee believed
it was entitled to certain public records in Defendants’ possession and was willing to
negotiate away that right in exchange for alternate concessions.
{52} 	Even if Appellant’s assertion were correct, it does not provide legal support for
terminating the accrual of attorney fees after the settlement offer in this case. Nothing
precludes an IPRA request from being motivated by something other than a desire to
possess the tangible document that is delivered by the responding governmental entity.
This fact does not diminish a party’s right to the tangible document or to leverage that
right in settlement negotiations.

28
{53} 	Defendants declined to accept the terms of the settlement offer. As such,
Appellee was entitled to continue litigating in order to secure all records responsive
to its IPRA requests. Naturally, additional attorney fees accrued during the pendency
of the litigation. Neither our independent research, nor Appellant’s briefing,
establishes legal support for the proposition that the terms of a settlement offer must
be inherently connected to the substantive law from which a claim arises. See In re
Doe, 1984-NMSC-024, ¶ 2 (“[Our appellate courts] assume where arguments in briefs
are unsupported by cited authority, counsel after diligent search, was unable to find
any supporting authority.”). Appellee is entitled to attorney fees accrued after
Defendants rejected Appellee’s settlement offer.
ABUSE OF DISCRETION
{54} 	Because we see no misapplication of law in the district court proceedings, we
review the district court’s award of attorney fees for abuse of discretion. The district
court’s order expressly stated that “counsel’s hours spent in this case for which
[Appellee] seeks compensation were all reasonable and necessary to [Appellee’s]
successful 	prosecution 	of 	this 	IPRA 	lawsuit.” 	Appellee 	expended 	resources
throughout the litigation in an effort to force the production of responsive records.
Appellee’s efforts were successful and culminated in the final production of
responsive records on June 5, 2013. We cannot conclude that the district court’s award

29
of attorney fees was “clearly contrary to the logical conclusions demanded by the facts
and circumstances of the case.” Sims, 1996-NMSC-078, ¶ 65.
CONCLUSION
{55} 	Because the district court’s award of attorney fees did not constitute an abuse
of discretion, we affirm. Additionally, we conclude that Appellee is entitled to
appellate attorney fees and remand to the district court for proceedings consistent with
this conclusion.
{56} 	IT IS SO ORDERED.
________________________________
JAMES J. WECHSLER, Judge
WE CONCUR:
________________________________
JONATHAN B. SUTIN, Judge
________________________________
TIMOTHY L. GARCIA, Judge