School district resists sharing documents with public, press
In January 2020, Las Vegas City Schools Superintendent Larryssa Archuleta addressed the Board of Education with concerns about the number of requests for public records citizens and journalists had filed with the district. During that school year, according to Archuleta, the district had received 10 such requests.
Archuleta’s concern, she told the board, was the amount of time requests for public records took for district staff to prepare and fulfill. She then told the board that she believed those 10 requests were “a gross abuse of policy.”
New Mexico law allows any person to request a wide variety of documents from any government agency, like a public school district. Known as the Inspection of Public Records Act, or IPRA, anyone can file a request for things like emails sent and received by public officials; contracts and agreements made between government entities and individuals or groups, including private companies; police reports; court documents; and many others.
Melanie Majors, the executive director of the New Mexico Foundation for Open Government said inspection of public records allows citizens to verify their tax dollars are being properly spent, and that government officials are performing their duties in the manner they’re supposed to be performing them.
“IPRA is there to protect all New Mexicans, to provide them with the information that they need to understand what their government is doing. It is government by the people; we the people,” Majors said. “And we the people should have access to our information.”
The main way citizens access this information is by filing a request to view documents with the agency that holds the records sought. The documents belong to every citizen, Majors said, and government agencies like LVCS store them for the public until the public wishes to see them.
“These documents belong to us; they’re just holding them for us in their filing cabinet so we don’t have to hold them in our filing cabinet at home,” Majors said.
And since these documents belong to the public, according to Majors, viewing them should come at no cost. She equates the storage and retrieval of these documents to keeping money in a bank: People tend to keep their money in a bank account for safekeeping, with the understanding that, when they want their money, the bank will retrieve it in a timely manner, and without charging them fees for access to it.
A ‘plain violation’
Many of the 10 IPRA requests Archuleta mentioned at the January 2020 board meeting were for documents relating to the district’s actions surrounding the dismissal of Stacy Fulgenzi, a former teacher, and former head volleyball coach at Robertson High School.
The district placed Fulgenzi on administrative leave in October 2019, midway through the volleyball season. Fulgenzi was also teaching physical education at Robertson at the time.
After Fulgenzi was placed on leave, Superintendent Archuleta told the Optic that Fulgenzi’s dismissal was a “personnel matter,” but declined to comment further. Fulgenzi told the Optic she was not given a reason for her dismissal, either.
Searching for answers, on Oct. 28, 2019, Fulgenzi filed a request for public records relating to her employment with the district. At least two media outlets also filed requests under IPRA for documents relating to the dismissal of Fulgenzi.
Under IPRA, a governmental body has three days to acknowledge it has received a request to inspect records, and it must fulfill the request within 15 days. However, an agency can request more time to fulfill requests.
Following Fulgenzi’s Oct. 28, 2019, request, LVCS stated it would respond by Nov. 12, 2019. On Nov. 12, the district wrote Fulgenzi to say her request was “unduly burdensome,” and said it would respond by Nov. 27, 2019. The district then extended the deadline to Dec. 4, 2019, and later pushed the deadline up further to Dec. 11, 2019.
Delays aside, once the documents were prepared for Fulgenzi — 889 pages of them — the district informed her it was charging a total of $143.54 in fees: 10 cents per page for copies, plus $56.64 to cover “the amount of time required to make and organize the copies.” The letter further stated the fee would cover two hours of pay for an executive assistant to prepare the copies.
Fulgenzi filed a complaint with the New Mexico Office of the Attorney General, and the OAG determined that LVCS had violated New Mexico law by charging these fees. In the determination letter, Assistant Attorney General John Kreienkamp wrote that charging a per-page fee and an additional fee for personnel was “a plain violation” of the law.
Raising rates, raising barriers
In an apparent response to the AG’s ruling, at the January meeting of the Board of Education, Superintendent Archuleta proposed that the district raise its per-page fee from 10 cents to the maximum allowed by law, $1 per printed page.
“Right now, our price is 10 cents per page for material — 35 cents (for some others). It can go up to $1 per page, it can’t go any higher than that. The other districts that we did look at had anywhere between 50 cents and $1,” Archuleta told the board. “So we have an idea of what this is, this is very time consuming. Within the year, we have had 10 IPRA requests. Within one month, we got five different IPRA requests who (sic) were very similar but somewhat not.”
Archuleta said one of the requests was nearly 1,300 pages of documents, and complained that preparing IPRA requests required her time, the time of the district’s IT director or other staff. She claimed that preparing those IPRA requests had cost the district $19,000, though she did not elaborate on the matter, or provide proof of the cost to the district.
“My other concern is, many times, within those five IPRA requests, two of them never got picked up, so we went through all of the process — and they can do that, according to this law … On the East Coast there have been two school districts who’ve actually gone bankrupt because of this process,” Archuleta said. “So while we appreciate the process for people so we can share the knowledge and what is occurring within public school, we also do not want it to become something that’s abused.”
Archuleta did not provide proof that any school district had gone bankrupt because of public records requests. Majors with NMFOG said she doesn’t know of any school district, or any public body, that has gone bankrupt as a result of fulfilling public records requests. Majors also disputed the $19,000 figure cited by Archuleta.
“How many people do they have working on that?” Majors said. “A small army?”
During the March 2020 board meeting, the board voted unanimously to charge the maximum allowed by law, $1 per printed page.
While IPRA allows for government bodies to charge up to $1 for printed pages, that fee does not apply to other mediums, like email. According to Majors, if a document does exist in an electronic format, it must be provided upon request in an electronic format. And while IPRA states a body can charge for the actual cost of that record, the $1 per-page fee only applies to printed or photocopied pages, not electronic versions of the document.
“The only thing they may charge for is the cost of a record if it is removed from the premises,” Majors said. “If a record exists in an electronic form at the time of the request, they may not charge for it, even if they have to redact items.”
Another ‘blockade’
Following the district’s fee hike, the Optic filed a records request for internal district emails pertaining to discussions regarding IPRA and public records.
The request was filed Sept. 17, 2020, and the district acknowledged receipt of the request later that day. Citing the “burdensome nature” of the request, along with COVID-19 restrictions, on Oct. 2, 2020, LVCS said it needed more time, and that it would respond by Oct. 16. But on Oct. 16, the district said it needed even more time and would have the documents ready by Oct. 30. On Oct. 30, the district said the request would be fulfilled “in several installments” beginning Nov. 13, 2020.
The district responded on Nov. 13, demanding payment of $157.84 to have some of the electronic records emailed to the Optic. Specifically, the district sought payment for two hours of IT staff member’s time, billed at $51.33 per hour, along with two hours of an administrative assistant’s time billed at $27.59 per hour. These fees are similar to the ones the OAG has already chided the district for charging Fulgenzi for last year.
On Dec. 4, the district sent two more letters demanding a total of $315.68 in order for the district to release the second and third part of the Optic’s request, essentially requiring $473.52 to receive all of the documents requested.
“It’s very specific in the Inspection of Public Records Act, in very plain English, they cannot charge for research time,” Majors said. “Too many public officials forget they are public servants. They are in those positions to serve the taxpayer who is paying their salary.”
The Optic filed a complaint with the attorney general Dec. 15, 2020. The district was notified of the complaint on Dec. 29, and the OAG gave the district until Jan. 22, 2021, to respond to the complaint.
City Schools’ attorney, Carol S. Helms of Cuddy & McCarthy LLP, initially requested an extension, and the OAG gave her until Feb. 5 to respond. Helms then asked for more time, and the OAG gave her until Feb. 12.
That date passed without a response from the district, or its attorneys, according to the OAG, but an extension was again granted until March 4, when the district’s lawyers issued a 30-page response to the complaint.
Though a final determination from the attorney general is still pending, the district’s lawyers assert LVCS has not violated IPRA. In the response, Helms stated the $473.52 sought to cover the time required by district personnel to retrieve the records is considerably less expensive than if the district were to charge $1 per page, in which case Helms says the fees would amount to more than $3,000.
“Unreasonable fees serve as a barrier — a blockade,” Majors said. “When the police come and take a police report, do they give you a bill afterwards? … Think of all the services that taxpayers receive, and yet, we don’t get a bill after we’ve received the services. Why is it any different for public records?”
