091021 Response to Complaint

8/3/2019 091021 Response to Complaint

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STATE OF NEW MEXICOCOUNTY OF SIERRASEVENTH JUDICIAL DISTRICT COURT

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FILE]2 G 0 9 O C T 21 A n 1 1 0

No.: D-0721-CV-2009-00098Judge: WILLIAM SANCHEZ

Serena Robert!C O U R T C L E R K

BY LIsa frazler-- DEPU Y

STATE OF NEW MEXICO, ex. reI. ]DEBORAH TOOMEY, Individually, ]]Petitioner, ]]vs. ]]CITY of TRUTH or CONSEQUENCES, a Municipality; ]LORI MONTGOMERY, Individually, ]and In her Official Capacity as Mayor; ]JERRY D. STAGNER, Individually, ]and In his Official Capacity as Mayor Pro-Tern; ]FRED TORRES, Individually, ]and In his Official Capacity of City Commissioner; ]EVELYN RENFRO, Individually, ]and In her Official Capacity of City Commissioner; ]STEVE GREEN, Individually, ]and In his Official Capacity of City Commissioners; ]

JAIME AGUILERA, Individually, ]and In his Official Capacity of City Manager; ]MARY PENNER, Individually, ]and In her Official Capacity of City Clerk and Custodian of Records; ]BERNADINE GARCIA, Individually, ]and In her Official Capacity as Utility Billing Supervisor; ]DISTRICT ATTORNEY FOR SIERRA COUNTY, ]

]Respondents. ]DEFENDANTS RESPONSE TO COMPLAINT TO ENFORCE

PROVISIONS OF THE PUBLIC RECORDS ACTPage 1 of7


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COMES NOW the Respondents (exception of the District Attorney), bythrough its counsel, JAIME F. RUBIN, Esq., City Attorney of the City of Trut orConsequences and hereby responds as follows:

Introduction and Statement of LawPursuant to Paragraph 9 (a) of the Court's Order filed on August 3, 2009,

the City Commissioners were served with a Summons, a copy of the Petition and acopy of the Order. Said service was performed during a regular City Commission

meeting on the evening of September 22, 2009!Paragraph 9 (c) of the August 3, 2009 Order directed the Respondents' to

respond to the Petition as if it were a Complaint to Enforce the Inspection of Pub icRecords Act." In responding, the City is fully aware that the recent decision .nCity of Farmington vs. Daily Times, 2009-NMCA-057(May 7, 200)acknowledged the broad definition "public records" as described in 14-2-1( )(2005) and that the burden rests upon the custodian to justify why the recor ssought to be examined should not be furnished. See 2009-NMCA-057.Farmington court further acknowledged that our Supreme Court had recognized anon-statutory confidentiality exception to disclosure under the IPRA.

Although the Petitioner's petition is quite lengthy, it appears that h rrequested records are embodied in Paragraph "19" which alleged "For the pa tfive (5) years, I want the Utility Department "audit logs" that details the date, time,

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who accessed and what record was accessed for all personally identifi bleinformation (the "PRA Request").

While making her request and subsequent allegations, however, hePetitioner was extremely mindful, and in fact, emphasized, of the need to k epcustomers' SSN's (Social Security Numbers) private and confidential. (SeePetitioner's allegations 13-6).

Therefore, the legal issue IS quite simple; in what manner was the Citywilling and able to comply with Ms. Toomey's request for an "audit log", while atthe same time preserving the confidential and private information (their SSN's) ofits utility customers.

As the supporting facts demonstrate, the City's position is as follows:1. The City does not have an "audit log" which can be inspected.2. The City could print out a copy of a computer database which contai s

out all of the information that the Petitioner is seeking. The copies would th nhave to be redacted to exclude the confidential information such as the SSN's, th snecessitating a second copy. This procedure would contemplate t atapproximately 55,000 copies would need to be generated.

3. Pursuant to 14-2-10, the Petitioner's request was excessive yburdensome, necessitating a reasonable time to comply with the request.

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4. Despite the excessive burdensome request, the Respondents were tillwilling to comply with the Petitioner's request, provided she paid a deposit to co erthe reasonable copying fees as contemplated by 14-2-9 (B).

Supporting FactsPlease note that this response has not only been signed by the City of Tr th

or Consequences City Attorney, but also verified by respondent BERNADGARCIA, in her Official Capacity as the City's Utility Manager.

of the relevant facts are as follows:The City does not maintain a computer "audit log." Further, it would e

impermissible for the Petitioner or anyone without security clearance to view t ecomputer database, because this information would contain customers' confidenti Iinformation including SSN's.

The Petition requested five (5) years of information! This could only eaccomplished in the following manner:

Each separate computer page would have to be printed. Then, each pa ewould have to be reviewed and have the confidential information redacted. T eredacted page would then be printed. A page sample is attached as Exhibit "1' .The time and cost involved is summarized in Mr. Hupp's "Calculation of costs forproducing audit logs", attached hereto as Exhibit "2". He states that five (5) years

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Based upon the foregoing information, City Manager Jaime Aguil ra

of data would consist of approximately 27,300 pages with another 27,300 pa esnecessary to produce the redacted pages.

responded to the Petitioner's request by requiring a $15,000.00 deposit before erecords could be provided. Considering that 14-2-9(B) contemplate copyingcharges of up to $1.00 per page, the $15,000.00 deposit for 54,600 pages wasextremely reasonable. (Exhibit "3"). The Utility Office Manager followed I p

It is interesting to note that the Petitioner made a complaint to the Stat's

with a letter dated June 19, 2008, in which she advised the Petitioner that there isno "audit log" for her to visually inspect for the application cards on file for t ethree (3) months requested. (Exhibit "4"). Thus, the City could only produce t erecords in the manner prescribed above.

Attorney General's office. Her complaint included her request for an "audit 1 0 "See page 2, paragraph 3(a) of Exhibit "5"; letter from AG dated June 15,200The City responded to the AG by letter dated June 15, 2009, Exhibit "6 '.Apparently, the AG was satisfied with the City's response, as nothing has be nheard from the AG since.

It should also be emphasized that the Petition wrongfully named t eindividual City Commissioners. In a City Manager form of Government such sthat exists in the City of Truth or Consequences, the City Commissioners are not

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responsible for the day-to-day operations of the City. Indeed, theCommissioners weren't even aware of the specific legal dispute until recently. heobligations for responding to the Public Records request would fall upon theManager and his staff. See 3-14-1 et. seg.

City's Specific Responses to the Petition,

1. As to the allegations contained in. paragraph "1" of the petition, heRespondents acknowledge the SSN policy. All of the allegations contained in s id

paragraph are denied.2. The allegation contained in paragraph "2" through "12" of the petiti n

are admitted with the exception that Jaime Aguilera is no longer the City Manaof Truth or Consequences.

3. All other allegations of the petition which are not specifically admitted in

BERNADINE GARCIAUtility Manager for City of Truth or Consequences505 Sims StreetTruth or Consequences, N(575) 894.6 1

JA IM E .Attorney f I ity of Truth or ConsequencesJaime F. Rubin, LLCP.O. Drawer 151Truth or Consequences, NM 87901575.894.3031 Fax: 575.894.3282

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CERTIFICATE OF MAILINGThe undersigned hereby certifies that a true and correct copy of he

foregoing DEFENDANTS RESPONSE TO COMPLAINT TO ENFOR EPROVISIONS OF THE PUBLIC RECORDS ACT was mailed to Debo ahToomey, Petitioner, at 406 Broadway Street, Truth or Consequences, NM 879 1,t h i s 1 , . \ day of October, 2009,. ~

JAIME F. B ,Esq.Attorney for City of Truth or ConsequencesJaime F. Rubin, LLCP.O. Drawer 151Truth or Consequences, NM 87901575.894.3031 Fax: 575.894.3282

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EXHIBIT "111- I.

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To: Mary Penner-Acting City ManagerFrom: Bob Hupp-Information Systems SpecialistDate: October 7, 2009

Subject: Calculation of costs for producing Audit logs

Memo

Attached to this memo is a copy of the computations I did for then City Manager, Jaime Aguilera,regarding the costs associated with producing the audit logs requested by Ms Toomey. The originalcomputation was done in response to her request in, I believe, January and was not, to my knowledge,saved. The attached follows the logic of the original computation and was produced on June 12, 2009in response to the Attorney General's follow up to Ms Toomey's request.Regards,

C : \ U s e r s \ B o b H . C I T Y H A L L .O O O \ D o c u m e n t s \ T o o m e y T r a n s m i t t a l . d o c P a g e IEXHIBIT " , . , "' "


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Jaime,I saw that you took the ownership of the response to the AG regarding how the citycomputed the $15,000 for the audit log that she was requesting.Idon't know if you kept the computation that Bema and Idid regarding this but I'verecreated it as follows:I ran an audit log for one operator for 1 day (actually, I ran four random days within theperiod kept on line since ADG was first implemented on our system in 2001 and took anaverage of the number of pages). The audit log for 1 operator for 1 day averaged 7 pages.Over the period of time requested, there have been approximately 10 operators in theutility office. We would therefore have to run reports on all 10 individually since theADG report doesn't list the operator accessing the record if you are reporting on alloperators. Despite the fact that we will have to run reports on 10 operators, it is unlikelythat there will be data for more than three of them in any given time period. (forexample, currently there would be data for Bema, Traci and Silke. Prior to that therewould be data for Bema, Silke and Janet; prior to that, Bema, Silke and Nicole etc.)Assuming that there are 3 operators with data at any give time, despite the fact that theoperators with data may change as people are hired and resign, that means that for anygiven day in the period requested there are 3 operators * 7 pages/operator/day or 21 pagesof data per day.Since there are 5 work days per week and 52 weeks per year that means that 1 year ofdata consists of 5 * 52 * 21 or 5460 pages.As Ms Toomey requested 5 years of data, that means that the report would consist of 5 *5460 pages or 27300 pages.I redacted customer data from a page of this report and it took approximately 3 minutes.Multiplying this times 27300 pages or 81900 minutes or 1365 hours to do the dataredaction. As this is slightly under a man year of labor, I have assumed that we wouldhire an intern to do the data redaction. Interns are typically hired at minimum wage,currently at 7.251hr. This gives you a labor cost to redact the data of $9896.Thus the cost to provide the data to Ms Toomey is:Print initial report of 27300 pages at 25 cents per pageLabor cost to redact dataCop y red ac ted rep ort

$ 6825$ 9896$ 6825

This totals to $23546 for the information she has requested. While we cannot charge forthe data redaction, the city commission should be aware of what it is spending just under$10,000 for.


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As I did not record the dates I ran reports for in the initial computation, I cannot justifythe initial estimate of $15,000 based on copying costs. Using the data I've run currently,results in a printing and copying charge of $l3650. I can only assume that the reports runfor the initial calculation showed a slightly higher page/day count. For the record, thedays used in this computation selected at random were:Feb 12,2009Apr 04,2006Sep 09,2008Jun 30,2006Please note that we would have no problem in responding to Ms Toomey's request if shewould just reduce the data volume. If she would pick some random dates within herrequested period and ask for them, there would not be a problem in giving her a samplefor her review.


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City of Truth or Consequences

505 Sims StreetTruth or Consequences, New Mexico 87901(57 5) 89 4-66 73 FAX: (5 7 5 ) 8 9 4-7 7 6 7

May 30,2008

Ms. Toomey406 BroadwayTruth or Consequences, NM 87901

Dear Ms. Toomey,Pursuant to the New Mexico Inspection of Public Records Act Section 14-2-9 B. (3), I aminformin youthat the City will not comply with your request dated 5/28/08 (attached) related to the "audit log" u til adeposit of $15,000 is received from you to cover the expense of printing the report for your inspect" n.Further, I am also hereby informing you that your request is considered "Excessively Burdensome"pursuant to Section 14-2-10. This means that when you pay the deposit, the City expects that the tiproduce the document will exceed the time limits set forth in the Act and we will provide the docu"reasonable amount of time" as cited in said Section.

Sincerely yours,,~~-.::::=----:::? b/O ~/.Yam e Aguilera

// City Manager

C: Honorable Mayor and City CommissionerJay Rubin, City Attorney

EXHIBIT "3"C:\Documents and Settinasviaime.Cl'I'YlfAl.L'Mv Documents\CITY CLERK\toomev 5-10-0R.ltr.rlnc


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City of Truth or ConsequencesUtility Office505 Sims StreetTruth or Consequences, New Mexico 87901

City: (575) 894-6671 FAX: (575) 894-0569

June 19, 2008

Deborah Toomey406 N. BroadwayTruth or Consequences, NM 87901

Re: Request for Documents Dated 6113/08

Ms. Toomey, at this point in time, there is no "audit log" for which you are requesting tovisually inspect.These application cards are filed daily. The only reason a filed application card would beaccessed is if a customer stated they were not responsible for an account that was in theirname. At that time we would retrieve their information for verification.The Utility Office has had no such issues in the months you are requesting.

Sincerely,

BernaG ciaUtility Office Manger

cc: Honorable M ayor & Ci ty Commis sionJaime Aguilera, City ManagerJay Rubin, City Attorney

EXHIBIT "4"


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GARYK. KINGAttorney General

ALBERT J.LAChief Deputy Attorney G neral

June 10,2009

Mary B. Penner, City ClerkCity of Truth or Consequences505 SimsTruth or Consequences NM 87901Re: Inspection of Public Records complaint - Deborah ToomeyDear Ms. Penner:The Office of the Attorney General received a complaint from Deborah Toomey alleging that t eCity of Truth or Consequences ("City") may have violated the Inspection of Public Records Ac("IPRA"), NMSA 1978, Sections 14-2-1 through 14-2-12. From her complaint and its exhibitswe believe Ms. Toomey has made at least eight written IPRA requests of the City. Enclosed iscopy of her complaint; because of the voluminous nature ofthe its 34 exhibits, I have enclosedonly those exhibits which appear to be Ms. Toomey's eight specific written IPRA requests.Ms. Toomey claims that the City has not properly responded to her multiple requests to inspectcertain City records. Although Ms. Toomey's complaint raises a number of concerns about Ciactivities and compliance with certain laws and rules, this Office's inquiry is limited solely towhether or not the City violated the IPRA regarding Ms. Toomey's eight written IPRA requestsThe Attorney General is charged with enforcement of the IPRA pursuant to Section 14-2-12(A)(1). If you are not the custodian of public records for the City of Truth or Consequences,please forward this inquiry to that person. In order for us to determine if the allegations in Ms.Toomey's complaint have merit, I ask that you provide us with the following information:1. Please provide a copy of the City's written notice of the right to inspect public records,and state where this notice is posted.2. Please state the reasonable fees the City charges persons to make copies of its publicrecords, both paper records and electronic records.

EXHIBIT "5"III Lomas Blvd. NW, Suite 300. Albuquerque, New Mexico 87102 (505) 222-9000 Fax (505) 222-9006


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Mary B. Penner, City ClerkCity of Truth or ConsequencesJune 10, 2009Page 2G) Please state the date(s) the City's records custodian received Ms. Toomey's eight spec fiewritten requests to inspect and/or copy public records described as:

.\ a. May 21, 200S oral request, renewed in writing on May 28, 2008 - UtilityDepartment "audit log" disclosing access to personally identifiable information for the previa sfive years (Complaint Exhibit 9)

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c. June 13, 2008 - no City response regarding "audit log" included with Compla nt

Mary B. Penner, City ClerkCity of Truth or ConsequencesJune 10, 2009Page 3

b. May 28, 2008 - Ms. Toomey letter to Mary Penner regarding how City hasresponded to her oral IPRA requests (Complaint Exhibit 9)

d. June 13,2008 - June 19, 2008 letter and responsive documents from BernaGarcia to Ms. Toomey regarding internal privacy policy; July 11,2008 letter from Mary Pennto Ms. Toomey regarding privacy policy (Complaint Exhibits 15-20; 23)e. July 9, 2008 - July 11, 2008 letter from Mary Penner to Ms. Toomey with

computer "properties" page for internal privacy policy; July 14,2008 letter from Berna Garcia 0Ms. Toomey with computer "properties" information (Complaint Exhibits 23-26)f. July 9, 2008 - July 14,2008 letter from Bema Garcia to Mary Penner regarding

internal privacy policy and "audit log" (Complaint Exhibit 24)g. January 21, 2009 - January 22,2009 memorandum from Bema Garcia to MaryPenner that there is no documentation for $15,000 fee to rewrite "proprietary software" and the eare no instruction manuals for this software (Complaint Exhibit 29)h. January 21,2009 - January 2 (sic), 2009 memorandum from Bob Hupp to Ma

Penner that the City has no responsive records and keeps no computer backups and thatinformation is kept for one month as encrypted backups (Complaint Exhibit 32)/Other than the City's correspondence identified above in Paragraphs 4.a.-4.h., please

provide copies of all additional written correspondence the City had with Ms. Toomey regardinher eight specific written IPRA requests identified above in Paragraphs 3.a.-3.h.

/5. Please describe all oral communications the City had with Ms. Toomey regarding hereight specific written requests to inspect public records identified above in Paragraphs 3.a.-3.h.Do hO+ re ~o...ll 6. Does an "audit log" as described by Ms. Toomey in her IPRA requests of May 28, 2008 /()(Complaint Exhibit 9), June 13,2008 (Complaint Exhibit 13) and July 9, 2008 (Complaint /]\ t)PExhibit 22) exist at the City? If so, in what form does it exist, e.g., electronic, paper, or ~otherwise?'7. City Manager Jaime Aguilera states in Complaint Exhibit 10, his May 30, 2008 letter toMs. Toomey, that "the City will not comply with [her] request dated [May 28, 2008] related tothe 'audit log' until a deposit of$15,000 is received from [her] to cover the expense of printing


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, .Mary B. Penner, City ClerkCity of Truth or ConsequencesJune 10, 2009Page 4the report for your inspection." Please describe how the City determined this $15,000.00 fee rcopying its public records.By July 13,2009, please provide this Office with your written response, directed to me at theaddress shown on this letterhead. Please include any documentation and/or information that y ufeel is relevant to or supports your position. Following this response date, we will evaluate thcomplaint and contact you with our conclusions. Please know that our file in this matter,including your response, is a public record, subject to inspection.Very truly yours,

Mary H. SmithAssistant Attorney GeneralEnclosures as stated


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City of Truth or Consequences505 Sims StreetTruth or Consequences, New Mexico 87901

CITY: (5 0 5 ) 8 9 4,6 6 7 3 FAX : (5 0 5) 89 4 ..7 7 67June 15, 2009

Mary H. SmithAssistant Attorney GeneralI I I Lomas Blvd., NW , Suite300Albuquerque, NM 87102Re: Inspection of Public Records complaint - Deborah ToomeyDear Ms. Smith:Iave provided the following information as requested in your letter dated June 10,2009.The copy of the City's written notice of the right to inspect public records, and the noticeis posted on a bulletin board in the Office of the City Clerk which also includes the feeschedule for copies.Also included are copies of the requests received from Ms. Toomey, and any otherwritten correspondence.Ido not recall oral communication with Ms. Toomey regarding her eight specific writtenrequests due to the volume of requests by Ms. Toomey, and we do not keepdocumentation on oral communication with customers.Enclosed is the information from Ms. Bema Garcia, Utility Office Manager in referenceto the "audit log", and the information from the City Manager on the $15,000 fee, and theinformation from Mr. Bob Hupp our Information Systems Specialist on how the $15,000fee was determined.If additional information is needed, please feel free to contact the Office of the CityClerk.Sincerely, /5, ~

~ner, City ClerkEnc!'

EX H I BIT "6"

091021 Response to Complaint

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