A-1-CA-34919 | Omnilex

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Court of Appeals of New Mexico
sae Filed 2/12/2019 1:32 PM
Filing Date: February 12, 2019 f

NO. A-1-CA-34919 “tak Romo
TEXASFILE LLC,
Plaintiff-Appellant,
v.
BOARD OF COUNTY COMMISSIONERS

OF THE COUNTY OF LEA AND KEITH
MANES, IN HIS CAPACITY

AS LEA COUNTY CLERK AND
CUSTODIAN OF PUBLIC PROPERTY
RECORDS,

Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
Lisa B. Riley, District Judge

Peifer, Hanson & Mullins, P.A.
Gregory P. Williams

Charles R. Peifer
Albuquerque, NM

for Appellant

YLAW, P.C.
Robert W. Becker
April D. White
Sean E. Garrett
Albuquerque, NM

Ww NO =

TAN N

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Miller Stratvert, P.A.
Virginia Anderman
Albuquerque, NM

for Appellees

InAccord, P.C.
Daniel A. Ivey-Soto, NMAC Special Counsel
Albuquerque, NM

New Mexico Association of Counties
Grace Philips, General Counsel
Brandon Huss, Associate Counsel

Santa Fe, NM

for Amicus Curiae New Mexico Association of Counties

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OPINION —

ATTREP, Judge.

4) After numerous exchanges, Plaintiff TexasFile, LLC (TexasFile) and
Defendant Lea County (the County), through its county clerk, failed to agree on a
method or fee for fulfilling TexasFile’s public records request for electronic copies
of all the County’s real property records and associated indexes. TexasFile filed a
lawsuit, alleging that the fee set by the County was unreasonable and amounted to a
denial of its records request. TexasFile asserted claims under the Inspection of Public
Records Act (IPRA), NMSA 1978, §§ 14-2-1 to -12 (1947, as amended through
2018), the Public Records Act, NMSA 1978, §§ 14-3-1 to -23 (1959, as amended
through 2015), and the Recording Act, NMSA 1978, §§ 14-8-1 to -17 (1855-56, as
amended through 2017). The County moved to dismiss the complaint. The district
court granted the motion on the grounds that (1) TexasFile failed to state a claim
upon which relief could be granted under IPRA because its records request had not
been denied, and (2) neither the Public Records Act nor the Recording Act provided
TexasFile a private right of action. We conclude that the Recording Act’s production
provisions governed the County’s obligation with respect to the records request at
issue in this case and that the complaint failed to allege any violation of that act.
Therefore, we affirm the district court’s dismissal of TexasFile’s complaint, albeit

on different grounds.

BACKGROUND

2} The relevant facts for purposes of this appeal are undisputed and drawn from
the complaint. TexasFile is a Texas-based commercial entity that provides customers
online access, for a fee, to real property records from Texas and other states. In
October 2013, TexasFile submitted an IPRA request to the County for “an electronic
copy of all Lea County real property image and index records that are maintained in
digital form by or on behalf of Lea County.” The County responded a few days later,
explaining that it could “not provide digital copies of [its] records,” but that it had
“computers and printers available for public use” at a price of 50 cents per page.
Further, hard copies of the “indexing records” could be purchased “at a price per
record of $.03 and a set[-Jup fee of $15.00,” with the charges per year averaging
between “$1,100.00 and $1,600.00.”

3} Unsatisfied with obtaining the requested information in the form proposed by
the County, TexasFile replied to the County’s response several months later
renewing its request for electronic production. TexasFile noted that a provision in
IPRA requires records custodians to provide public records in electronic form when
the records are specifically requested in electronic form and “available” in that form.
TexasFile asserted that the County’s records “were plainly available” electronically,
given that the records were accessible on computer terminals at the County’s offices.

The County responded that Section 14-8-9.1 (2011) of the Recording Act requires

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that counties redact certain “protected personal identifier information” before third
parties may “digitiz[e] or purchas[e]” records that would otherwise reveal that
information. Based on that requirement, and because its records had apparently not
yet been redacted, the County advised, “we do not provide digital copies of our
records.” The County reiterated that it made computers and printers available to the
public during normal business hours, and it charged a copy fee of 50 cents per page.

The County added that before leaving its offices, any copy “must be inspected for

protected personal identifier information,” so that redactions could be made as
necessary.
(4) TexasFile replied, contending that Section 14-8-9.1(C) (2011) of the

Recording Act required the County to make redactions before digitizing records, and
asserting that electronic images should be available to TexasFile. The County
responded again, explaining that because it did not have a practice of providing
electronic images, it was looking at “options and investigating pricing.” After a
meeting of the board of county commissioners, the County offered to compile and
produce its records in electronic form under the following terms. The County would
charge “25 cents per image (page), $100 set[-]up fee plus the cost of the [media]
used to convey the records.” Any employee time expended in excess of four hours
would be charged at $25 per hour. The County reported that a rough estimate of the

cost of the records spanning the period from July 1, 2011, to May 2014, “would be

around $40,000,” plus approximately “$7,000” for the associated index. TexasFile,
questioning these estimates, asked the County how it “had arrived at a price of 25
cents per image.” After reiterating this request several times and receiving no
substantive response, TexasFile concluded that the County had “refused to
reconsider the 25-cents-per-image fee.”

{5} TexasFile then filed its lawsuit in district court, alleging the County’s fee
demand “for electronic copies of . . . real property records [was] unreasonable,”
based on “reasonable fee” provisions appearing in IPRA, the Public Records Act,
and the Recording Act. TexasFile’s prayer for relief included a request for a
declaratory judgment, “declaring [the County’s] quoted fees for electronic copies of
Lea County’s real property records unreasonable as a matter of law.” The County
moved to dismiss. The County contended that TexasFile had no cause of action
under IPRA because IPRA provides a private cause of action only to those parties
whose requests for inspection have been “denied,” see § 14-2-12(A)(2), and
TexasFile’s request was never denied, as the County at all times made clear the
records were available for inspection at its offices. The County further maintained
that neither the Public Records Act nor the Recording Act provided TexasFile a
private right of action. The district court embraced the County’s positions, granted

the County’s motion, and dismissed TexasFile’s complaint with prejudice. The court

also denied TexasFile’s motion for leave to amend its complaint to seek a writ of
mandamus under IPRA, Section 14-2-12(B).

{6 TexasFile’s principal argument on appeal is that the district court erred in
concluding the complaint failed to allege a “denial,” as required for private party
enforcement under IPRA, Section 14-2-12(A). In short, TexasFile interprets IPRA’s
enforcement provision to allow requesters to bring actions in scenarios where
custodians impose unreasonably high fees, and because TexasFile alleged facts
supporting a claim of an unreasonably high fee here, the district court erred in
dismissing its IPRA cause of action. TexasFile adds that, even if we decline to adopt
its proposed interpretation of IPRA, we should recognize implied private rights of
action under the Public Records Act and the Recording Act.

{7 | The County responds that TexasFile does not have standing to sue under PRA
because its request has not been denied and only the Attorney General or a local
district attorney has standing to bring an IPRA enforcement action not involving a
denial. See § 14-2-12(A). The County, along with amicus curiae (New Mexico
Association of Counties), next argues that the County’s obligation to respond to
TexasFile’s records request is defined by the Recording Act, as the more specific
act, rather than IPRA or the Public Records Act. Because the Recording Act does
not require electronic production and permits the County to charge up to $1.00 per

page, the County argues that TexasFile’s complaint fails to state a claim. The County

adds that the Public Records Act and the Recording Act contain no expressions of
legislative intent to create implied private rights of action.

DISCUSSION

{3}. IPRA and the Recording Act impose competing obligations on the County to
respond to TexasFile’s request, and thus we are called on to resolve this conflict. We
conclude that the Recording Act, as the more specific statute, governed the County’s
production obligation with respect to TexasFile’s records request. Because the
Recording Act imposes no requirement on the County to produce its documents
electronically, we need not determine whether the County’s quoted fee for the
electronic production was unreasonable or whether the quoted fee amounts to a
denial under IPRA. We further conclude that TexasFile’s complaint fails to allege a
violation of the production obligations set forth in the Recording Act, and thus we
need not decide whether the Recording Act creates a private right of action.
Accordingly, we affirm the district court’s dismissal of TexasFile’s complaint for
failure to state a claim upon which relief can be granted.

L Standard of Review

{9} | We review dismissals under Rule 1-012(B)(6) NMRA de novo. See Wolinsky
v. N.M. Corr. Dep’t, 2018-NMCA-071, | 3, 429 P.3d 991, cert. denied, 2018-
NMCERT-____ (No. S-1-SC-37287, Oct. 26, 2018). A dismissal for failure to state a

claim is warranted only when it appears a claimant cannot recover on any version of

facts provable under the claim. See Valdez v. State, 2002-NMSC-028, { 4, 132 N.M.
667, 54 P.3d 71. In reviewing these dismissals, we accept as true all well-pleaded
factual allegations in the complaint and we resolve any doubts in favor of the
complaint’s sufficiency. Jd. We review de novo the underlying questions of statutory
interpretation and application of the relevant statutory provisions to the facts alleged.
See Crutchfield v. N.M. Dep’t of Taxation & Revenue, 2005-NMCA-022, ¥ 16, 137
N.M. 26, 106 P.3d 1273.

{10} Where, as here, we consider a ground for affirming not relied upon by or
presented to the district court, we may affirm as long as application of the new
ground does not require us to look beyond the factual allegations raised and
considered in the district court and it would not be unfair to the appellant. See
Freeman v. Fairchild, 2018-NMSC-023, q 30, 416 P.3d 264; Wild Horse Observers
Ass’n, Inc. v. N.M. Livestock Bd., 2016-NMCA-001, q 29, 363 P.3d 1222. Our
Supreme Court has explained that an appellee generally need not preserve any
specific issues for review and may offer even unpreserved grounds for affirmance
on appeal. See Cordova v. World Fin. Corp. of N.M., 2009-NMSC-021, 4 18, 146
N.M. 256, 208 P.3d 901. Thus, we “routinely affirm district court rulings on purely
legal issues where the record allows, even when the district court relied on different

reasoning, and when the court did not consider the issue at all.” Morris v.

Brandenburg, 2015-NMCA-100, { 141, 356 P.3d 564, aff'd, 2016-NMSC-027, 376

P.3d 836. Additionally, we are less likely to find unfairness where an argument is
raised in the appellate briefs, as it was here, and the appellant has an opportunity to
respond, even where the appellant declines the opportunity. See Cordova, 2009-
NMSC-021, 4 19.

Hl. Relevant Statutory Provisions

A. The Public Records Act Is Not at Issue

{4} Inits complaint, TexasFile asserted a separate claim under the Public Records
Act, relying specifically on Section 14-3-18(E). This section directs, in relevant part,
that “[a] county or municipality that has inserted data in a computer database shall
authorize an electronic copy to be made of the computer database ... if the person
agrees to pay a reasonable fee.” Section 14-3-18(E) (emphasis added). Now on
appeal, TexasFile abandons this position—unequivocally maintaining that “Section
14-3-18 of the Public Records Act is not applicable at all because it applies only to
a ‘computer database.’ TexasFile did not request a ‘computer database’; instead, its

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request was for ‘Lea County real property image and index records.’ ” (Emphasis
added.) Further, the County does not assert that the Public Records Act’s county
database provision in Section 14-3-18 should apply in this case. In sum, neither party
has relied on Section 14-3-18 of the Public Records Act as governing the County’s

obligation in this case, and thus we give no further consideration to that possibility

here. See Roselli v. Rio Cmtys. Serv. Station, Inc., 1990-NMSC-018, J 10, 109 N.M.

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509, 787 P.2d 428 (concluding that claims not raised on appeal are abandoned); Titus
v. City of Albuquerque, 2011-NMCA-038, 4 30, 149 N.M. 556, 252 P.3d 780 (“This
Court has no duty to review an argument that is not adequately developed.”).

B. IPRA and the Recording Act

123 IPRA and the Recording Act establish statutory schemes with distinct scopes
and objectives. IPRA creates a records inspection scheme of general application,
granting, with various exceptions, to “every person . . . a right to inspect public
records of this state.” Section 14-2-1(A). Our Legislature has explained that IPRA’s
purpose is to ensure that “all persons are entitled to the greatest possible information
regarding the affairs of government and the official acts of public officers and
employees.” Section 14-2-5. Of particular relevance here, IPRA requires that “{a]
custodian shall provide a copy of a public record in electronic format if the public
record is available in electronic format and an electronic copy is specifically
requested.” Section 14-2-9(B). IPRA’s fee provisions provide that a custodian:

(1) may charge reasonable fees for copying the public records,
unless a different fee is otherwise prescribed by law;

(2) shall not charge fees in excess of one dollar ($1.00) per
printed page for documents eleven inches by seventeen inches in size
or smaller;

(3) may charge the actual costs associated with downloading
copies of public records to a computer disk or storage device, including
the actual cost of the computer disk or storage device;

—

LSS)

(4) may charge the actual costs associated with transmitting
copies of public records by mail, electronic mail or facsimile;

(5) may require advance payment of the fees before making
copies of public records;

(6) shall not charge a fee for the cost of determining whether
any public record is subject to disclosure; and

(7) _ shall provide a receipt, upon request.

Section 14-2-9(C).

{133 The Recording Act, and associated statutes, see NMSA 1978, §§ 14-9-1 to -9
(1851-52, as amended through 1991) (pertaining to the recording of instruments
affecting real estate); NMSA 1978, §§ 14-10-1 to -5 (1903, as amended through
2013) (pertaining to the creation and maintenance of a recording index of all
recorded instruments affecting real property), have been around for much longer
than JPRA, dating back to the mid-nineteenth century. See, e.g., Section 14-8-1
(1855, as amended through 2011). Our Supreme Court has explained that these
recording statutes, taken together, “are intended to protect those having subsequent
dealings with the [real property documented and described by real property
records].” Romero v. Sanchez, 1971-NMSC-129, 4 24, 83 N.M. 358, 492 P.2d 140.
They accomplish this goal by “providing a place and a method by which an intending
purchaser or encumbrancer can safely determine just what kind of title he is in fact
obtaining.” Jd. J 23 (internal quotation marks and citation omitted). The recording
statutes have thus long required that recorded documents be made publicly available

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in a book of record in the office of the county clerk, see § 14-8-14(A), and they have
directed that the book of record is to provide “notice to the public of the contents
thereof,” Section 14-8-6.
414}. Unlike IPRA, the Recording Act contains no requirement that records be
provided in electronic format. Compare § 14-2-9 (IPRA’s inspection and production
section, requiring electronic production), with § 14-8-14 (the Recording Act’s
inspection and production section, omitting any electronic production requirement).
Likewise, the Recording Act’s fee provisions omit the fee requirements pértaining
to electronic production and instead provide that a county clerk:
(1) may charge reasonable fees for conducting searches and
for reproducing or permitting reproduction of their records as well as
for certifying documents;
(2) shall not charge fees in excess of one dollar ($1.00) per
page for doctments eleven inches by seventeen inches in size or

smaller;

(3) may require advance payment of fees before making
copies of public records;

(4) _ shall not charge a fee for the cost of determining whether
any public record is subject to disclosure; and

(5) shall provide a receipt, upon request.

Section 14-8-14(B).

—"

10}

11.

Ill. The Recording Act, Not IPRA, Governs the County’s Obligation in This
Case

15} Neither party takes the position that the records TexasFile sought have been
or could have been withheld in response to its request.’ They agree that various
statutory provisions require these records to be publicly available and that the
County makes them publicly available at its offices. They dispute instead what
obligations the County had in responding to TexasFile’s records request, given the
various statutory provisions at play. And as noted above, IPRA’s electronic
production directives are at odds with the Recording Act, which contains no
requirement that records be produced in electronic form under any circumstances.
Compare § 14-2-9, with § 14-8-14.

{16 In interpreting and construing these statutory provisions, we aim to “give
effect to the Legislature’s intent.” Key v. Chrysler Motors Corp., 1996-NMSC-038,
q 13, 121 N.M. 764, 918 P.2d 350. We read statutes in their entirety and construe
each provision in relation with all the others, so as “to produce a harmonious whole.”
Id. J 14. The provisions of one statute, moreover, must be read together in pari

materia with other statutes covering the same subject matter, with a presumption that

In passing, and without explanation, the County asserts that the property
records requested by TexasFile are not “public records” as defined in IPRA. We are
under no obligation to consider such an undeveloped argument, and given our

resolution of this case on other grounds, we do not address this issue. See Titus,
2011-NMCA-038, { 30.

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our Legislature enacted each with knowledge of the relevant statutory and common
law background. Pub. Serv. Co. v. Pub. Util. Comm’n, 1999-NMSC-040, J 23, 128
N.M. 309, 992 P.2d 860. We construe statutes together when possible to promote
the operation and purpose of each. Jd. We often achieve this goal by reading a more
specific statute as an exception to the provisions of a more general statute and by
giving the more specific statute the prevailing effect. See Prod. Credit Ass’n of S.
N.M. v. Williamson, 1988-NMSC-041, § 5, 107 N.M. 212, 755 P.2d 56 (“A well
established principle of statutory construction recognizes that when one statute deals
with a subject in general terms and another deals with a part of the same subject
more specifically, the more specific statute will be considered an exception to the
general statute, and will apply.”); see also Lopez v. Barreras, 1966-NMSC-209,
{ 12, 77 N.M. 52, 419 P.2d 251 (“Conflicts between general and specific statutes are
resolved by giving effect to the specific statute.”).

a7} This is not the first time this Court has been called upon to resolve a dispute
involving a custodian’s obligation to respond to a public records request in the face
of two statutes containing divergent duties. See Crutchfield, 2005-NMCA-022, ¥ 1.
In Crutchfield, a Texas-based commercial entity made an IPRA request for a copy
of the Department of Taxation and Revenue’s (the Department) electronic severance
tax database. Id. J 4. The Department rejected the request based on Section

14-3-15.1(C) of the Public Records Act, which permits state agencies to impose use

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restrictions and royalty fees before producing agency databases. Jd. 7 5. This Court
evaluated the Department’s obligation to respond to the request given the competing
obligations in IPRA and the Public Records Act. We observed that “IPRA
unquestionably sets a policy of citizen entitlement to access to public records.” Jd.
q 18. But we explained that Section 14-3-15.1(C) of the Public Records Act sets
forth provisions of “very specific application relating specifically to copies of
computer databases, and specifying conditions for access to and commercial use of
the databases.” Jd. ¢ 23. IPRA, by contrast, contained no provision specifically
addressing requests for copies of a database, and there was no dispute the requester
had in fact sought a copy of the Department’s database. Id. {] 4, 23-24. Citing the
interpretive canon that the more specific statute controls when two statutes deal with
the same subject, this Court concluded that the Legislature must have intended
Section 14-3-15.1(C) of the Public Records Act to govern the obligation when
requests for databases were made. Jd. {J 23-24. Consequently, Section 14-3-15.1(C)
created “an exception to the general public policy [favoring the greatest possible
public access] underlying the IPRA.” Jd. § 24. And because the more specific
provision allowed the Department to deny requests for copies of its database where
a requester refuses to meet its terms, this Court concluded the Department was

entitled to deny the request notwithstanding IPRA. Jd. ¥ 27.

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{18} We are presented with similarly incongruent statutory obligations, as was the
case in Crutchfield, and accordingly we find the analysis in Crutchfield instructive
here. JPRA instructs custodians that they must produce records in electronic format
when available and requested in that form, see § 14-2-9(B), while the Recording Act
imposes no such requirement on county clerks, see § 14-8-14. As Crutchfield
explains, when this kind of conflict arises as a result of a public records request, we
look to the statute most specifically addressing the “type of record” sought to
determine the custodian’s obligation in responding. See 2005-NMCA-022, {[ 24; see
also Albuquerque Commons P’ship v. City Council of City of Albuquerque, 2011-
NMSC-002, § 23, 149 N.M. 308, 248 P.3d 856 (“When faced with two provisions
addressing the same topic, we resort to a familiar principle of statutory construction:
a statute dealing with a specific subject will be considered an exception to, and given
effect over, a more general statute.” (internal quotation marks and citation omitted)).
In this case, there is no dispute that TexasFile sought all of the County’s real property
image and index records, and as TexasFile concedes, the Recording Act establishes
a scheme for the filing, recording, and inspection of these records. As explained
above, the Recording Act has a long history, aiming to provide a mechanism by
which prospective purchasers can examine real property records and placing on

county clerks associated duties to make these records available and searchable for

the public. See Romero, 1971-NMSC-129, { 24; see also § 14-8-6 (history). IPRA

creates no similarly specific scheme for real property records and, indeed, makes no
reference to real property records at all. See §§ 14-2-1 to -12. In light of the breadth
and depth of treatment given real property records in the Recording Act and the
absence of the same in IPRA, principles of statutory construction, as employed in
Crutchfield, counsel that the Recording Act’s production provisions govern the
County’s obligation in responding to TexasFile’s request. See Crutchfield, 2005-
NMCA-022, 23 (“When two statutes deal with the same subject, one general and
one specific, the specific statute controls.”).

{19} Furthermore, in examining recent legislative history, we see no intent on the
part of the Legislature to apply IPRA’s electronic production requirement to the
records request in this case. Both IPRA and the Recording Act were amended in
2011. At that time, the provision requiring the electronic production of documents
was added to Section 14-2-9 of IPRA. See § 14-2-9(B) (2011). During the same
session, the Legislature revamped the section in the Recording Act pertaining to
searching and charging for records maintained in county clerks’ offices. Compare §
14-8-14 (1886-87), with § 14-8-14 (2011). That amendment conformed the
Recording Act’s fee provisions in large part to IPRA’s fee provisions. Compare §
14-8-14(B)(2) to (B)(5), with § 14-2-9(C)(1), (2), (5), (6), (7). But significantly,
when the Legislature revamped the Recording Act to conform its fee provisions to

those set forth in IPRA, it omitted IPRA’s electronic production requirement and

related fee provisions. See § 14-8-14(B) (listing identical fee provisions as those
found in Section 14-2-9(C)(2), (5), (6), (7), but omitting provisions pertaining to
electronic production found in Section 14-2-9(C)(3), (4)). This omission signals the
Legislature’s intent that IPRA’s electronic production requirement and related fee
provisions do not apply to records requests like those at issue in this case. See, e.g.,
United Rentals Nw., Inc. v. Yearout Mech., Inc., 2010-NMSC-030, J 25, 148 N.M.
426, 237 P.3d 728 (“[I]f a statute on a particular subject omits a particular provision,
inclusion of that provision in another related statute indicates an intent that the
provision is not applicable to the statute from which it was omitted.” (alteration,
internal quotation marks, and citation omitted)).

{20} There are many reasons the Legislature could have determined that the
electronic production requirement in IPRA was unsuitable for real property records
filed and recorded in county clerks’ offices—one being the safeguarding of protected
personal identifier information. Section 14-2-1(B) of IPRA authorizes, but does not
require, public bodies to redact protected personal identifier information before
permitting inspection or copying. The Recording Act pushes the protection a step |
further—requiring, as opposed to merely authorizing, that redaction of protected
personal identifier information be made before third parties may purchase copies.
See § 14-8-9.1(C). And the Recording Act subjects county clerks to damages

suffered by injured parties for their failure to comply with the requirements and

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duties of the Recording Act. Section 14-8-10. So for real property records in
particular, the Legislature established heightened protection, perhaps recognizing
the additional risks of disclosure of records linking personal identifier information
to real property information. See City of Las Cruces v. Pub. Emp. Labor Relations
Bd., 1996-NMSC-024, § 9, 121 N.M. 688, 917 P.2d 451 (“To permit disclosure of
certain types of information could threaten the well-being of individual citizens by
unnecessarily revealing information of a personal nature.” (alteration, internal
quotation marks, and citation omitted)). And it takes little imagination to appreciate
the onerous burden county clerks’ offices may bear to redact in electronic format
protected personal identifier information from their voluminous records in order to
ensure the privacy interests of real property owners. This supports our conclusion
that the Legislature acted with intention to exempt county clerks from the electronic
production requirement in IPRA.

13. Notwithstanding Crutchfield and basic principles of statutory construction,
TexasFile offers various arguments why the County’s obligation should be governed
not by the Recording Act but instead by IPRA. First, TexasFile points out that New
Mexico cases instruct that IPRA provisions are to be construed broadly to carry out
its legislative purpose. See, e.g., San Juan Agr. Water Users Ass’n v. KNME-TYV,
2011-NMSC-011, 7 15, 150 N.M. 64, 257 P.3d 884 (“Where there is no contrary

statute or countervailing public policy, the right to inspect public records must be

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ee)

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freely allowed.” (internal quotation marks and citation omitted)). That principle,
TexasFile maintains, suggests we should look to IPRA for the County’s obligation.
Our above analysis, however, puts this argument to rest—in cases featuring
conflicting guidance, we look to the more specific statute for the obligation, even if
this “creat[es] an exception to the general public policy underlying the IPRA.”
Crutchfield, 2005-NMCA-022, {| 24.

2) As an aside, TexasFile contends that a clause in Section 14-8-9.1 (2011) of
the Recording Act makes records filed and recorded in county clerks’ offices subject |
to IPRA in its entirety. Section 14-8-9.1(A) (2011), which has since been amended
to eliminate the clause TexasFile relies upon, specified that “[e]xcept as provided in
this section, all documents filed and recorded in the office of the county clerk are
public records, subject to disclosure pursuant to [IPRA].” (Emphasis added.)
TexasFile’s contention runs counter to the plain meaning of “disclosure.” As used
in IPRA, “disclosure” simply means to make a record available for inspection. See
§ 14-2-9(A) (“Requested public records containing information that is exempt and
nonexempt from disclosure shall be separated by the custodian prior to inspection,
and the nonexempt information shall be made available for inspection.” (emphases
added)); - see also Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/disclose (last visited on Jan. 19,

2019) (defining “disclose” as “to open up,” “to expose to view,” “to make known or

public”). Had the Legislature intended to import IPRA’s electronic production
requirement into Section 14-8-9.1(A), it certainly could have chosen words to that
effect. See State v. Greenwood, 2012-NMCA-017, § 38, 271 P.3d 753 (“The
Legislature knows how to include language in a statute if it so desires.” (alteration,
internal quotation marks, and citation omitted)), Furthermore, TexasFile’s broad
interpretation of the former version of Section 14-8-9.1(A) (2011) would render the
Recording Act’s production and fee requirements in Section 14-8-14(B)
superfluous. See Regents of Univ. of N.M. v. N.M. Fed’n of Teachers, 1998-NMSC-
020, { 28, 125 N.M. 401, 962 P.2d 1236 (“Statutes must be construed so that no part}.
of the statute is rendered surplusage or superfluous.” (internal quotation marks and
citation omitted)).

23} In sum, given the conflicting guidance regarding electronic production in
IPRA and the Recording Act, the comprehensive and specific treatment of real
property records in the Recording Act and the absence of specific treatment in IPRA,
the clear omission of an electronic production requirement in the Recording Act, as
well as the heightened protection of confidential information in the Recording Act,
we conclude that the Recording Act’s production requirements governed the|-

County’s obligation to respond to TexasFile’s records request.

—

“~. 16

IV. The District Court Correctly Determined That TexasFile Failed to State
a Claim

24} Having concluded that the Recording Act governed the County’s obligation
here, we next turn to whether the complaint alleged any violations of that act. Under
the Recording Act, the County was required to redact any protected personal
identifier information before releasing documents to TexasFile. See § 14-8-9.1(C).
As TexasFile’s complaint makes clear, the County insisted on complying with this
obligation. The County also was required to make its records available for
TexasFile’s inspection during regular business hours. See § 14-8-14(A). The
complaint again reflects that the County proposed to meet this requirement. The
County also was authorized to charge “reasonable fees” for conducting searches and
reproducing its records, along with fees “not in excess of one dollar ($1.00) per
page” for documents eleven-by-seventeen inches in size or smaller. See §
14-8-14(B)(1), (2). Whether those authorizations might sometimes conflict is
unclear, but they do appear in the conjunctive. Further, TexasFile’s complaint
alleges that the County quoted a fee of 50 cents per printed page and makes no
contention that this fee was unreasonable; the complaint again fails to allege that the
County’s initial proposal did not comply with Section 14-8-14(B) of the Recording
Act. At the same time, the County had no obligation to provide electronic copies
because the Recording Act imposes no such obligation, and thus the County’s later

efforts to accommodate TexasFile gave rise to no violation under any of the

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provisions TexasFile relies upon. Thus, even if the Recording Act provides a private
right of action, the complaint here has failed to allege a violation of that act.

5} In short, we conclude that TexasFile failed to state a claim upon which relief
can be granted and dismissal of the complaint was appropriate. Given TexasFile’s
failure to state a claim, we further conclude that the district court correctly denied
TexasFile’s request for declaratory relief. See, e.g., Am. Linen Supply of N.M., Inc.
v. City of Las Cruces, 1963-NMSC-176, J 7, 73 N.M. 30, 385 P.2d 359 (“[U]nless a
valid cause of action is stated under the rules of substantive law, there can be no
recourse to declaratory judgment procedure to reach the desired end.”). Finally,
given the lack of any violation of a “clear, mandatory duty” on the facts alleged, the
district court correctly denied TexasFile’s motion to add a request for mandamus to
its complaint. See State ex rel. Whitehead v. Vescovi-Dial, 1997-NMCA-126, {ff 4,
16, 124 N.M. 375, 950 P.2d 818 (concluding mandamus is inappropriate unless
“clear-cut mandatory duty” to perform some action is identified).

CONCLUSION

6} We affirm the district court’s dismissal of TexasFile’s complaint.

—-—, ATTREP, Judge

27} ITIS SO ORDERED.

—

WE CONCUR:

ALIN fA]
LINRA M. VANZI, Judge

J. MILES HANISEE, Judge

February 12, 2019- Texasfile LLC v. Board of County Commissioners of Lea County, No. A-1-CA-34919

Testo completo

OCR transcription for search; preserved printed pages are authoritative

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