Invoices show LVCS spends tens of thousands responding to records requests

Invoices show LVCS spends tens of thousands responding to records requests

From the Las Vegas Optic

In the six-month period between Oct. 1, 2019, and March 31, 2020, Las Vegas City Schools spent more than $38,000 in legal fees either responding to records requests, researching laws, redacting requests, pushing back against requests and complaints, or responding to the attorney general, according to invoices obtained by the Optic.

Fees charged by law firms hired by LVCS ranged from $95 for a review of a records request, to $418 to work on a response to the attorney general about a complaint filed against the district, to $1,216 to “identify and designate legal bases for withholding” or redacting records.

New Mexico law allows anyone to request records from government bodies, like a public school district. The process is designed to be straightforward: A person requests the documents they’d like to see by filing a request citing the Inspection of Public Records Act, or IPRA, and the governmental body has three days to acknowledge that it received the request, and up to 15 days to provide the records.

Each governmental body must designate at least one person as the records custodian, and that custodian is responsible for reviewing requests, responding to them, locating the records sought, and ultimately getting the records to the person who requested them.

Agencies like school districts receive money from the state legislature to cover basic operations, and according to Melanie Majors, the executive director of the New Mexico Foundation for Open Government, one of those basic operations is the fulfillment of IPRA requests.

Majors said she can understand why a district might want to have an attorney review some items requested under IPRA, but she doesn’t feel it’s necessary in every case.

“Many records are pretty mundane. If there is information in there that is, by law, required to be exempt — like a personal identifier — then someone who is a trained clerk is more than capable of redacting that information.”

 

Costly reviews

While IPRA doesn’t require that records be reviewed by an attorney before being released to the public, agencies do have that option, and in some cases — such as requests for things like personnel files — it makes sense to have files reviewed. But when a law firm is consulted for every aspect of every request, the total of those fees can be substantial.

For instance, in late 2019, the Albuquerque Journal filed at least one IPRA request with LVCS. The district paid nearly $3,000 to have lawyers review, respond and fulfill the request.

Invoices obtained by the Optic from two law firms — Cuddy & McCarthy LLP and Kerry Kiernan PC — show LVCS was billed $95 to have the IPRA request reviewed, and to issue a letter acknowledging receipt of the request.

Another $76 was billed for email exchanges to prepare for an extension to the Journal’s request, and the district paid $171 for phone calls to Superintendent Archuleta about three pending IPRA requests, to discuss getting an extension on two of those requests and to “prepare extended deadline” for the Journal’s request.

Days later, the law firm billed the district $437 for a phone call and email between a law firm partner and the reporter who requested the records to discuss a one-day extension, and to send an email to request payment for the electronic records, which according to Majors, is not allowed by law.

Three days later, the district paid $228 for work on a cover letter, as well as a phone call with the superintendent. The district was billed another $332.50 for further discussions with a reporter, to review the records and make redactions. Two days later, LVCS paid $525 for further review of those documents and then $175 for more reviews.

LVCS was then billed  $192.50 to have an associate attorney draft legal reasons for why redactions were made, $57 to have a firm partner consult with someone about it and $70 to for further redaction services and conferences. That was followed by $38 for a phone call to Superintendent Archuleta about the redactions and the reporter’s questions.

The district was also billed $472.50 from a separate law firm to review documents requested by the Journal. It’s unclear in the invoicing if these fees were for one or two IPRA requests made by the Journal, but the total amounted to $2,869.50 paid to the two law firms.

 

The $16,000 response

Around the time the Journal filed its IPRA request, KOB-TV filed a request as well, seeking emails sent and received by district officials. By the time the request was fulfilled, the district had spent nearly $16,000 to have lawyers respond to it.

Early in the process, the district was billed $1,216 for a firm partner to review one part of KOB’s request and to “identify and designate legal bases for withholding or redactions.” LVCS was then billed $1,007 to “prepare an initial draft of a cover letter” outlining those legal reasons for withholding records, and further review to identify legal reasons for withholding or redacting records. Further review of the records cost the district $1,273. LVCS was then billed $627  to “complete review” of part one of the request, $1,007 to “continue review” of part two and $1,178 to again “continued review” of part two.

Thousands more were billed for things like “work on exempt records or portions of records requested,” to draft cover letters for responses and for telephone and email conversations with a reporter — including $70 for a lawyer to “prepare a memorandum” and to read emails from a reporter.

On March 6, 2020, the district was billed $162.50 to finish redactions, draft a final cover letter and convert emails to PDFs, which Majors with NMFOG asserts is a violation of the law.

“A body is required to produce the record in the format in which it exists at the time of the request,” Majors said.

Illegal fees charged

Part of the work performed by Cuddy & McCarthy, the law firm that responded to KOB’s request, was a series of correspondence demanding that KOB pay a fee for the records sought.

On multiple occasions, the district has sought fees from others who’ve filed IPRA requests as well, including former Robertson High School teacher and volleyball coach Stacy Fulgenzi.

Fulgenzi has filed several IPRA requests since the district placed her on leave, without explanation, in October 2019. In order to release documents for one of her requests, the district sought $143.54 in fees: billed at 10 cents per page for copies, plus $56.64 to cover “the amount of time required to make and organize the copies.”

Fulgenzi filed a complaint with the New Mexico Office of the Attorney General, which ultimately ruled that LVCS had violated New Mexico law by charging these fees.

“There is no fee to inspect a record under IPRA,” Majors said. “Record requesters are not required to pay a fee for an agency to research a record.”

In September 2020, the Optic filed an IPRA request seeking emails sent and received by district officials pertaining to discussions of IPRA and public records. After several requests for extensions, the district responded Oct. 30, 2020, stating the request would be fulfilled “in several installments” beginning Nov. 13, 2020. The district also demanded payment of $473.52 from the Optic for the records, saying, “The fee amount indicated on the letter is for the personnel time involved to extract, review for accuracy and format the information in the correct file extensions.” Fees very similar to those the AG’s office has already ruled LVCS cannot legally charge.

“It’s very specific in the Inspection of Public Records Act, in very plain English, they cannot charge for research time,” Majors said.

 

Lack of resources

Though the process of responding to IPRA requests is designed to be uniform and routine, according to Ethan Watson, the city clerk for the City of Albuquerque, the process can be expensive, particularly for smaller governmental bodies that don’t have as many resources as an agency like the City of Albuquerque.

“We have software that helps us with template letters, the three-day and the 15-day, but a lot of smaller entities aren’t necessarily able to afford that software,” Watson said. “For smaller entities, it is often cheaper to hire a lawyer to help them with IPRA.”

Watson handles around 9,000 IPRA requests per year, for a wide variety of city agencies, and for a variety of types of requests — from information on city permits to police internal affairs files. Watson has a law degree, and 11 full-time employees who handle IPRA requests, and because their only job is to respond to IPRA requests, it’s easier for them to be familiar with what the law requires, reducing the amount of items that need attorney review.

Smaller bodies, like LVCS, are working with fewer resources, and Watson points out that school districts also have to be mindful of privacy laws like FERPA, a federal law that pertains specifically to student privacy.

“I don’t find the intersection of FERPA and IPRA to be very clear,” Watson said. “There are some records that a school district has that are maybe clearly exempt (from privacy laws), but they also have a lot of student records, and it’s important that they comply with their legal obligations in relation to those records.”

Peter St. Cyr, the executive director of Open Access New Mexico, told the Optic he’d like to see records custodians be required to earn continuing education credits, and to attend annual training programs to help them become familiar with the law so they feel empowered to process basic requests without the need for attorney review.

“There are only nine exemptions in IPRA,” St. Cyr said. “Once records custodians are trained on those nine exemptions, the less they’ll need to rely on or burden general counsel.”

LVCS Superintendent Larryssa Archuleta addressed the Board of Education during the district’s January 2020 meeting to raise concerns about the number of IPRA requests the district had received that school year — 10 at the time — and to say that five of those requests were very similar in nature.

It’s a situation that isn’t unique to LVCS. Many times, multiple requesters seek the same documents. It’s something Watson saw happening in Albuquerque a lot as well, so he streamlined the process by having his staff scan requested documents into digital formats, and then post those documents to the city’s website.

“That is the antidote,” Majors with NMFOG said. “Put them online and everyone can access them at their convenience.”