091104 Reply to Response to Complaint

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STATE OF NEW MEX ICO

S E V E N T H J U · O I C I A L

D ISTR ICT COURT

F ILED

2 0 0 9 N l l U l~ P P l 1 09TATE OF NEW MEXICO

IN THE SEVENTH JUDICIAL DISTRICT COURT

COUNTY OF SIERRAqertl!ft8 ~obem

C O U R T C L E R K

BY ~ DEPUTY

STATE OF NEW MEXICO ex rel.

DEBORAH TOOMEY, an individual,

Petitioner,

NO. D-0721-CV2009-98

vs.JUDGE: WILLIAM SANCHEZ

CITY OF TRUTH OR CONSEQUENCES, et al.

Respondents.)

PETITIONER'S REPLY TO DEFENDANTS RESPONSE TO

COMPLAINT TO ENFORCE PROVISIONS OF THE PUBLIC RECORDS ACT

COMES NOW the pro se petitioner, Deborah Toomey, to submit this Reply on the

Defendants Response to Complaint to Enforce Provisions of the Public Records Act. The Writ

of Mandamus to enforce the Inspection of Public Records Act should be granted on the

following grounds:

1. Respondents deny everything with considerable creativity but no substance.

2. ADG software automatically creates daily and monthly audit reports and is

capable of automated redaction and paperless reporting onto electronic media.

3. Respondents demand for $15,000 is an imposition of a prohibitive fee to avoid

disclosure of the requested public records contrary to NMSA 14-2-9.

4. Respondents produce no proof that the Attorney General has been satisfied. They

speak only in conjecture which is easily dispelled.

PETITIONER'S REPLY TO RESPONSE TO COMPLAINT - - D-072l-CV2009-98



5. Respondents met Petitioner's IPRA requests with fraud, harassment, perjury and

tampering with the public record.

INTRODUCTION

Petitioner Toomey's Petition for Peremptory Writ of Mandamus was filed on July 8,

2009. Summons was issued by the Court on September 22,2009, and service was made on all

Respondents on said date, except Respondent GARCIA, served on September 23,2009. The

Response was filed on October 21,2009.

DISCUSSION

1. Respondents deny an "audit log." This is simply not true. Both GARCIA and

AGUILERA testified at City Commissioner meetings describing the audit log, on May 27,200

and July 22, 2008, respectively.

2. Respondents deny that City utilizes ADG Utility Billing Software and that the

software automatically includes built-in daily and monthly audit reports. This is simply not tru .

Respondents attempt a blanket denial, contrary to their own Exhibit 2, which states "ADG was

first implemented on our system in 2001."

3. Respondents claim that the June 19,2008, letter (Respondents Exhibit 4) was a

"follow up" to Petitioner's IPRA request of May 21,2008. This is simply not true. The June 1 ,

2008, letter is in response to an entirely different IPRA request for an entirely different audit 1 0

Petitioner requested on June 13,2008, to visually inspect an audit log for the "cards that are

locked in the library card catalog which is locked in the City safe." The June 19, 2008, responseI

of "no such documents" exist is for the "cards" and not the computer database. It is not a part of

this' enforcement action, although it is a direct admission the City is violation of the Federal

PETITIONER'S REPLY TO RESPONSE TO COMPLAINT - - D-0721-CV2009-98



Privacy Act for logging access to the SSN's on the "cards."

4. Respondents attempt to justify the illegal demand of $15,OOO-first for printing,

then for rewriting the proprietary software and then back to printing-in the most ludicrous

manner. While the demand for $15,000 by former City Manager AGUILERA was made in May

2008, Mr. Hupp states his original computation was done in January 2009, seven months after

the $15,000 demand was made.

5. Mr. Hupp's "re-creates" the January 2009 computation to respond to the Attorney

General in June 2009. (Exhibit 2 to Response.) This computation is reverse engineering at its

worse, and cannot be supported.

6. Respondents claim that there are 10 individual audit logs, one for each operator.

This is simply not true. ADG does not perform client-side batch processing and there is only 0 e

audit database.

7. ADG uses widely available commercial Relational Database Management

Software (RDBMS). RDBMS allows for any standard systems analyst to easily access and

export the requested data in 15-30 minutes. ADG also includes numerous built-in reports and t e

ability to customize reports.

8. Respondents claim they could not comply with the IPRA request and "preserve[ ]

the confidential and private information (their SSN's) of its utility customers." This is simply

not true. ADG supports reporting that masks and sorts auditing data in a simple query. ADG

includes automatic field encryption of private data (social security numbers, credit card

information, and bank account information). That information is never displayed upon the

screen after entering or on the hard copy upon printing. In addition, an audit log never includes

PETITIONER' S REPLY TO RESPONSE TO COMPLAINT - - D-0721-CV2009-98



the "private data" being audited. In fact, if it did, then the audit log itself would require an audit

log. As such, a proper query would not include 55,000 pages, nor would it require any additional

redaction as Respondents claim.

9. At the July 22,2008, City Commissioners meetings, Former City Manager

AGUILERA claimed the database was proprietary and it "could not be read without the actual

software." This is simply untrue. ADG exports in standard industry formats such as Microsoft

Excel C.xLS), and Comma Separated Value (.CSV) files. Petitioner requested an electronic copy

on July 9, 2008, and upon providing the media, there is no fee charged. This request has never

received any sort of response from Respondents.

10. A proper query of the audit database would produce no more than 100 pages for

the last five years. At $0.25 per page for printing, the charge would be $25, a far cry from

$15,000 demanded first for printing, then for rewriting the proprietary software, then back agai

for printing.

11. According to the Attorney General of New Mexico, once a public record has bee

redacted, there is no charge for the redaction or for any individual page with redacted

information.

12. The production of the requested data is nowhere near the convoluted horror

described by City. It is not "overly burdensome" to take less than one-half hour to perform a

query that produces no more than 100 pages.

13. The May 29, 2008, demand for $15,000 for printing, then rewriting proprietary

software, is nothing less than demand for an illegal fee to bar Petitioner "an opportunity to

determine whether those who have been entrusted with the affairs of government are honestly,




faithfully and competently performing their function as public servants." State ex rel. Newsom

v.Alarid, 90 N.M. 790, 795, 568 P.2d 1236 (1977) (quoting with approval MacEwan v. Holm,

359 P.2d 413, 420-21 (Or. 1961)). The demand for $15,000 was and remains nothing more thahI

an imposition of a prohibitive fee to avoid disclosing the first line of defense against information

theft from the inside job: the "audit log."

14. Respondents further claim that the Attorney General's Office ("AGO") was

"satisfied with the City's response" on June 15,2009, to Petitioner's February 2009 complaint

since "nothing has been heard from the AG since." It took four months to process the initial

complaint before the AGO requested the City to respond to the allegations. Petitioner filed civi

suit less than a month after City responded, in July 2009, before the AGO would realistically

have analyzed the City's response. The AGO drops all civil investigation once a civil suit has

been filed. In addition, as mentioned in Petitioner's correspondence to the Court in July 2009,

the AGO Civil Division forwarded Petitioner's complaint to the AGO Criminal Division for

investigation on the same day City responded, June 15,2009. The actions taken by the AGO

cannot be construed by either Respondents or the Court as "satisfied."

15. Respondents claim that the individual City Commissioners are "wrongfully

named" in the Petition as they are not "responsible for the day-to-day operations of the City."

However, NMSA 3-14-12.B places on the City Commission the responsibility to appoint the

manager and "hold him responsible for the proper and efficient administration of the municipal

government." The City Commissioners are properly named as they are not only to hold the

manager responsible, but are also responsible for "perform[ing] all acts required for the general

welfare of the municipality." (NMSA 3-14-12.A(2).) The City Commissioners did neither.




16. Respondents further claim that the City Commissioners "weren't even aware of

the specific legal dispute until recently." The City Commissioners were copied on most

correspondence during the previous 18months, as evidenced by Respondents' exhibits and oth r

correspondence with the Commissioners. Petitioner spoke about these issues during several City

Commissioner meetings and plead with the Commission to require the City Manager and staff to

comply with public policy and the law. Commissioner GREEN was personally provided

Petitioner's complaint to the Attorney General in February 2009, including all exhibits. The Ci

Commissioners have willfully and knowingly allowed City staff to continue to violate a declare

public policy and to engage in criminal actions in its refusal to comply with the IPRA and

refused to "hold responsible" Former City Manager AGUILERA.

17. In addition, the Respondents recognize the importance of the IPRA in their own

City Commissions Rules of Procedure, page 20:

A person whose request for inspection and copying is wrongly

denied could sue. If successful, the citizen may be awardedreasonable attorney's fees and punitive damages for each day the

request is denied.

As such, the City Commission specifically notes the public policy of the State of New Mexico i

their local Rules of Procedure of the right to inspect public records, and the consequences of its

refusal. The City Commission chose not to rectify the situation when it was brought to their

attention on numerous occasions over a year and a half, and they knew the consequences. The

City Commissioners, individually and in their official capacities, hold the ultimate responsibility

18. Contrary to Respondents answer, the City was able to comply with the May 21,

2008, IPRA request and preserve the confidentiality of SSN.

19. Respondents claim a blanket denial of all other allegations which are not




specifically admitted. Petitioner confirms that all allegations made in the Petition are true,

supported and evidenced by the public record.

20. It is also of note that Respondents did not serve Petitioner at the address listed

the petition and summons. Service was finally forwarded by the U.S. Postal service on October

26,2009, five days after mailing. Since Petitioner had been made aware by other litigants of the

type of "shenanigans" utilized by the City Attorney, she kept a close eye on the Court's file and

noted on October 22,2009, that Respondents had filed their answer. Petitioner contacted the

City Attorney immediately and informed the City Attorney she would "come pick it up."

Service upon Petitioner was purposefully delayed by mailing to an invalid address rather than t e

address listed on the summons and the petition.

CONCLUSION

1. Respondents deny everything contrary to the public record.

2. ADG software is a premiere utilities management software based on RDBMS th t

includes automated logging, field level encryption and paperless reporting.

3. Respondents demand for $15,000 was a prohibitive cost to deny Petitioner's

lawful request for a public record in violation of the public policy ofthe State of New Mexico.

4. Respondents produced no proof that the Attorney General has been satisfied.

They speak only in conjecture that "no news is good news."

5. Respondents met Petitioner's IPRA request with fraud, harassment, perjury and

tampering with the public record.




THEREFORE, a Writ of Mandamus should be issued and damages paid of $100 per

day, along with any other relief that the Court deems just and necessary.

, D ! i ) C ; > { : " · - f . ~ - ~ - ~ : :, : \ ; , _cDATED: November 4, 2009.

Deborah L. Toomey, pro se "

415 W. Riverside Drive

Truth or Consequences NM 87901

(575) 740-1091

CERTIFICATE OF HAND DELIVERY

The undersigned hereby certifies that a copy of the PETITIONER'S REPLY TO

DEFENDANTS RESPONSE TO COMPLAINT TO ENFORCE PROVISIONS OF THEPUBLIC RECORDS ACT was hand delivered to the Attorney for Respondents, Law Office of

Jaime F. Rubin, 314 Main Street, Truth or Consequences, NM, 87901, on the 4th day of

November,2009. .

\ . l l , ' \ ) l ) f \ C I ' . ' : ( ) ~. . ~ i l j F \ '< ','S L , :',1>'-07 "./1. 'J"'~!l"'-"'"r

PETITIONER' S REPLY TO RESPONSE TO COMPLAINT - - D-0721-CV2009-98

091104 Reply to Response to Complaint

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