120113 Motion for Summary Judgment

MOTION FOR SUMMARY JUDGMENT

Toomey v. City of Truth or Consequences - D-0721-CV2009-98

STATE OF NEW MEXICO

SEVENTH JUDICIAL DISTRICT

COUNTY OF SIERRA

STATE OF NEW MEXICO, ex rel.

DEBORAH TOOMEY, an individual,

Plaintiff,

vs.

CITY OF TRUTH OR CONSEQUENCES,

et al.,

Defendants.

No. D-0721-CV2009-98

HON. WILLIAM SANCHEZ


Plaintiff Deborah Toomey hereby moves for summary judgment of her

complaint for enforcement of the Inspection of Public Records Act (IPRA) on

grounds that “there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” NMRA 1-056.

This motion is supported by the following Memorandum of Points and

Authorities and the pleadings and papers on file, and any oral argument the Court

allows at hearing of the motion.


Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page i

TABLE OF CONTENTS

INTRODUCTION .................................................................................................... 1

SUMMARY OF PROCEEDINGS ......................................................................... 3

STATEMENT OF MATERIAL FACTS TO WHICH

THERE IS NO GENUINE DISPUTE ..................................................................11

ARGUMENT ..........................................................................................................18

A. Fundamental Right to Inspect Public Records ............................................18

B. Public Records with Reasonable Particularity ............................................20

1. Redacting exempt information from a

nonexempt public record is not the

creation of a new record. ...................................................................25

2. Providing a subset of records from a

database is not the creation of a new

record. ................................................................................................26

C. The “Cost” of Public Records .....................................................................30

D. Denial and Enforcement ..............................................................................35

CONCLUSION .......................................................................................................38


Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page ii

TABLE OF AUTHORITIES

New Mexico Cases

Audette and Toomey v. City of Truth or Consequences,

Sierra County Cause No. CV-2009-159 ..............................................................21

Bd. of Comm’rs of Doña Ana County v. Las Cruces Sun-News,

2003-NMCA-102, 134 N.M. 283, 76 P.3d 36 .................................. 19, 20, 35, 37

City of Farmington v. The Daily Times,

2009-NMCA-057, 146 N.M. 349, 210 P.3d 246 ............................................3, 20

Foy v. New Mexico Educational Retirement Board,

County of Bernalillo Cause No. D 202 CV 2009 1587 .......................................18

San Juan Agric. Water Users Ass’n v. KNME-TV,

2011-NMSC-011, __ N.M. __, __ P.3d .................................................... 3, 36, 37

State ex rel. Newsome v. Alarid,

90 N.M. 790, 797, 568 P.2d 1236, 1243 (1977) ............................... 20, 26, 34, 37

Statutes and Rules

14-2-1 .................................................................................................... 18, 20, 29, 30

14-2-10 ........................................................................................................ 13, 16, 36

14-2-11 ............................................................................................................. passim

14-2-12 .............................................................................................................. 35, 38

14-2-5 ............................................................................................................... passim

14-2-6 ............................................................................................................... passim

14-2-7 ................................................................................................................ 17, 31

14-2-8 ............................................................................................................... passim

14-2-9 ............................................................................................................... passim

14-3-1 -25 .................................................................................................................29

14-3-2 .......................................................................................................................23

3-14-12 .....................................................................................................................17

Other Authorities

City Resolution 07-10/11 .................................................................................. 33, 34

Federal Privacy Act of 1974, 5 USC §552a ...........................................................1, 2

Office of the New Mexico Attorney General,

Inspection of Public Records Act Compliance Guide (6th ed. 2009) ........... 28, 31

http://dictionary.reference.com/browse/maintain ....................................................27

http://en.wikipedia.org/wiki/.csv .............................................................................29


Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page iii

http://www.thefreedictionary.com/compile .............................................................28

http://www.thefreedictionary.com/create ................................................................25

http://www.thefreedictionary.com/document ..........................................................24

http://www.thefreedictionary.com/generate ............................................................25

http://www.webopedia.com/TERM/A/audit_trail.html ...........................................11


Toomey v. City of Truth or Consequences - D-0721-CV2009-98 Page 1

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

Over several months, Plaintiff watched the misrepresentation by Defendants

of the safety of social security numbers (hereinafter “SSN”) required by the Utility

Department in violation of the Federal Privacy Act of 1974, 5 USC §552a,

claiming the SSN were on cards locked in a vault every night, while hiding the

existence of a computer database containing SSN.

Knowing that the “audit log” is the first line of defense against information

theft, especially from the “inside job,” Plaintiff requested per IPRA to inspect the

Utility Department audit logs on three separate occasions: May 21, May 28, and

July 9, 2008. The request for “Utility Department audit log that details the date,

time, whom accessed and what record was accessed for all personally identifiable

information” was “reasonably particular” for Defendants to retrieve and provide

what turned out to be the ADG Utility Billing System audit log and the Application

Audit Log.

Defendants’ first IPRA response produced a memo that was nonresponsive

to the request to inspect the audit logs. Defendants’ second IPRA response was a

demand for $15,000 before inspection of the audit logs would be allowed and a

claim of burdensome. Defendants’ third IPRA response was a request for



additional time. None of the IPRA responses produced records responsive to the

IPRA requests, claimed the audit logs did not exist nor claimed an exception.

Additionally, none of the responses were statutorily compliant with the procedures

for denied requests. 14-2-11.

Meanwhile, City staff testified, during City Commission meetings, the

Federal Privacy Act was only “intended” and never enacted. In response to a local

news reporter’s questioning Defendants to justify the demand for $15,000, City

changed their reasoning and claimed “proprietary software” needed to be rewritten.

After diligently pursuing compliance to IPRA and the production of the

audit logs for more than a year, an IPRA enforcement action was filed in July

2009. On December 5, 2011, the ADG Utility Billing System audit log was

disclosed under the supervision of Plaintiff’s expert witness Gouthum Karadi. The

application audit log was not disclosed.

The May 21, 2008, IPRA request was the first Plaintiff submitted to a public

body and, in many respects, the first IPRA response by Defendants. What was

novel has now become common-place in the City of Truth or Consequences as

numerous citizens and local news reporters regularly utilize IPRA to “protect the

public from having to rely solely on the representations of public officials that they

have acted appropriately.” City of Farmington v. The Daily Times, 2009-NMCA-



057, ¶ 17, 146 N.M. 349, 210 P.3d 246. Time-and-again it is discovered that they

have not acted appropriately in the City of Truth or Consequences.

Unfortunately, however, in order to thwart accountability and consequences,

Defendants fail to disclose requested public records, fail to disclose a public record

does not exist, or delay to such an extent that the information is no longer timely.

In order for government to truly be of the people and by the people,

and not just for the people, our citizens must be able to know what

their own public servants are doing in their name.

San Juan Agric. Water Users Ass’n v. KNME-TV, 2011-NMSC-011, ¶16, __ N.M.

__, __ P.3d.

There has been no truth or consequences in Truth or Consequences. Plaintiff

prays there will be both.

SUMMARY OF PROCEEDINGS

Plaintiff filed a Petition for Writ of Mandamus in July 2009 to enforce IPRA

(hereinafter “Petition”). Plaintiff claimed three IPRA violations for her requests of

May 21, 2008, for the “audit trail,” May 28, 2008, for the “audit log,” and July 9,

2008, for the “computer audit log” and audit log for application “cards.”

The Court ordered the Defendants to answer the Petition as if it were a

complaint to enforce IPRA in August 2009.



Defendants Response to Complaint to Enforce Provisions of the Public

Records Act was filed on October 21, 2009 (hereinafter “Response to Complaint”).

Defendants claimed the ADG Utility Billing System audit log does not exist, and if

it did exist, Defendants further asserted it would have been burdensome and a

deposit of $15,000 for “copying fees” was reasonable.

Petitioner’s Reply to Defendants Response to Complaint to Enforce

Provisions of the Public Records Act was filed on November 4, 2009 (hereinafter

“Reply to Response to Complaint”). Plaintiff claimed the audit logs do exist, the

ADG Utility Billing System is capable of providing the records electronically,

demand for $15,000 was to avoid production of public records, and Defendants

met the IPRA requests with fraud, harassment, perjury and tampering with the

public record.

Respondents’ Motion to Dismiss was filed on December 28, 2009

(hereinafter Motion to Dismiss). Once again, Defendants claimed the ADG Utility

Billing System audit log does not exist and to produce would require the “City to

create over 50,000 pages of new documents.”

A status conference was held on December 29, 2009, with Hon. William

Sanchez presiding. A verbal order was issued to finish the Motion cycle and the

written motions would be taken into consideration.



Petitioner’s Reply to Defendants’ Motion to Dismiss was filed on

December 31, 2009 (hereinafter “Response to Motion to Dismiss”). Plaintiff

claimed the audit logs do exist, the partial printout of a database is not the creation

of a new record, burdensome is not a basis for denial, “requiring payment prior to

inspection is not allowed under IPRA, and the $15,000 demand was and remains

nothing more than an imposition of a prohibitive fee to avoid complying with

IPRA.”

City’s Reply to Petitioner’s Reply to Respondent’s Motion to Dismiss was

filed on January 7, 2010 (hereinafter “Reply to Response to Motion to Dismiss”).

Defendants again claim “there is simply no ‘audit log’ which exists” and the ADG

Utility Billing System audit log could “only be created in the burdensome and

costly manner outlined by [Bob Hupp].”

Petitioner’s Motion to Strike City’s Reply to Petitioner’s Reply to

Respondent’s Motion to Dismiss was filed on January 15, 2010 (hereinafter

“Motion to Strike”). Plaintiff complains the Reply to Response to Motion to

Dismiss should be stricken for raising new arguments that have never been aired

before.

Petitioner’s Motion for Judgment on the Pleadings, Damages, Declaratory

and Injunctive Relief was filed on January 19, 2010 (hereinafter “Motion for



Judgment”). Plaintiff claims the audit logs exist, a computer database is a public

record subject to IPRA, IPRA excludes charging for redaction, and burdensome is

not a basis for denial.

City’s Response to Petitioner’s Motion for Judgment on the Pleadings was

filed on January 20, 2010 (hereinafter “Response to Motion for Judgment”).

Again, Defendants claim “the requested documents do not exist.”

City’s Response to Motion to Strike City’s Reply was filed on January 20,

2010 (hereinafter “Response to Motion to Strike”). Defendants claimed no new

issues were raised and further claimed “the requested documents simply do not

exist, and never have.”

On November 1, 2011, Plaintiff filed a Certificate of Readiness for Trial,

Request for Setting and List of Trial Witnesses. Notice of Trial for November 28,

2011, was filed by the Court on November 7, 2011. Upon request from

Defendants, the Court filed an Amended Notice of Hearing for “pending motions”

for November 28, 2011.

Supplement to Reply to Defendants’ Motion to Dismiss was filed on

November 14, 2011 (hereinafter “Supplement”). The Supplement was filed to

include a memo from Berna Garcia, Utility Office Manager and named-defendant,

in response to the Attorney General Request of June 2009 which declared the



“audit log” exists and it is an electronic record. Although Defendants had

previously utilized as exhibits all other documents created in June 2009 in response

to the Attorney General Request, Defendants failed to disclose this one document,

which confirmed that an audit log exists as an electronic record. Plaintiff

discovered it through an IPRA request to the Attorney General of New Mexico and

disclosed it to the Court.

In addition, the Supplement included an Affidavit of Gouthum Karadi1 filed

on November 14, 2011 (hereinafter “Affidavit of Karadi”) to declare his technical

expertise and that “utilizing available technology would require no more than 30

minutes” to retrieve the ADG Utility Billing System audit log.

City’s Response to Plaintiff’s Supplement was filed on November 18, 2011

(hereinafter “Response to Supplement”). Although the supplemented evidence

was a document created by Defendants, and thereby already in the possession of

City, Defendants objected to the inclusion of new evidence and Plaintiff disclosing

it to the Court.

1 Mr. Karadi was listed as an expert witness in Plaintiff’s List of Trial Witnesses filed on

November 1, 2011.



The Affidavit of Berna Garcia2 dated November 10, 2011, filed with the

Response to Supplement on November 18, 2011 (hereinafter Garcia Affidavit)

“explain[s] in detail … the City Utility Office has and utilizes [an] Application

Audit Log … [and] System Master Audit Log.” The Garcia Affidavit also

introduces a new defense that the System Master Audit Log is “just not the type of

audit log Ms. Toomey is wishing to view.” The Garcia Affidavit does not opine

whether the Application Audit Log is or is not the audit log for the “cards”

requested under IPRA.

The Affidavit of Mark Jost,3 President of ADG, dated November 11, 2011,

filed with the Response to Supplement on November 18, 2011 (hereinafter

“11/11/11 Jost Affidavit”) not only attacks Mr. Karadi as a technical expert, but

also claims “the data [Ms. Toomey] is requesting is not even available.”

2 Although not titled as “affidavit,” it is a written and signed statement by named-defendant and

verifier of the Response to Complaint, Bernadine Garcia, in response to pleadings. As such, this

signed statement by Ms. Garcia should be construed by the Court as a sworn affidavit affirmed

by the signatory under penalty of perjury under the laws of the State of New Mexico to be true

and correct. 3 Although not titled as “affidavit,” it is a written and signed statement in response to pleadings.

Mr. Jost has specifically written and signed a statement for every pleading Defendants have filed

in this enforcement action. Mr. Jost should be construed by this Court as an undeclared expert

witness since he continues to act in such a capacity. As such, his signed statements written in

response to litigation should be construed by this Court as a sworn affidavit affirmed by the

signatory under penalty of perjury under the laws of the State of New Mexico to be true and

correct.



A hearing on the “pending motions” was held on November 28, 2011, with

Hon. William Sanchez presiding. Defendants once again claimed “the audit log

does not exist.” Plaintiff once again contended the audit logs existed, and the

Garcia Affidavit affirms two audit logs exist. In addition, Plaintiff informs the

Court that a new defense has appeared: the Utility Department audit logs

described by the Garcia Affidavit are supposedly not the audit logs Plaintiff

wanted. Plaintiff argued that the “Utility Department audit logs” for the computer

database and application cards is not only “reasonably particular” to produce the

two “Utility Department audit logs” the Garcia Affidavit identified as “Application

Audit Log” and “System Master Audit Log,” but based upon the written

description in the Garcia Affidavit, these audit logs were exactly what was

requested under IPRA on May 21, May 28 and July 9, 2008.

The Court ordered Defendants to allow access to Plaintiff’s expert witness

Mr. Karadi to determine whether these audit logs existed and to produce said audit

logs if they existed. The Court also noted a Request for Setting of Status

Conference should be filed as soon as the issue was determined, but to ensure that

Mr. Karadi was granted access no later than December 16, 2011.



Plaintiff and expert witness Mr. Karadi met with City Manager Juan Fuentes

and City IT Specialist Bob Hupp at the City Utility Department on December 5,

2011, for Mr. Karadi to ascertain if the audit logs existed and, if so, to disclose.

On December 6, 2011, a Request for Setting of Status Conference was filed

by Plaintiff.

Second Affidavit of Gouthum Karadi was filed on January 6, 2012

(hereinafter “Second Karadi Affidavit) to affirm his findings and conclusions of

December 5, 2011. Mr. Karadi affirmed the Utility Department “System Master

Audit Log” exists, took three (3) minutes to retrieve and copy onto a USB drive in

electronic form and that City’s claim it would take 1,300 man hours to produce and

redact were knowingly false.

Affidavit of Ronald Fenn was filed on January 11, 2012 (hereinafter “Fenn

Affidavit”). Mr. Fenn affirms City has disclosed in response to a September 2011

IPRA request that redacting information from the ADG Utility Billing System

database is the creation of a new record and, therefore, City will not provide.

Mr. Fenn also affirms numerous tactics the City uses contrary to IPRA in failing to

properly respond to his requests, and that City regularly intimidates and harasses as

a method to dissuade an informed citizenry.



Affidavit of Bradley Grower was filed on January 11, 2012 (hereinafter

“Grower Affidavit). Mr. Grower affirms City claimed “no such documents exist”

to IPRA requests when said records did exist and were finally produced after

pressure from the mainstream media. Mr. Grower further affirms that he was

harassed and intimidated with multiple threats of arrest for his IPRA requests

regarding the illegal gun sale by City’s Chief of Police.

Affidavit of Deborah Toomey was filed on January 13, 2012 (hereinafter

“Toomey Affidavit”). Plaintiff affirms and exhibits the true context of the

Response to Complaint, Exhibit 4, and pattern of abuse by City in failing to

properly respond to IPRA requests.

STATEMENT OF MATERIAL FACTS TO WHICH

THERE IS NO GENUINE DISPUTE

1. On May 21, 2008, Plaintiff requested per IPRA for the “audit trail4 as

to ‘when and to whom’ it has disclosed personal records.” Petition, p. 4 ¶19 and

Ex. E; Reply to Motion to Dismiss, p. 7 ¶18.

2. Custodian of Records telephoned the afternoon of May 21, 2008,

requesting clarification, and Plaintiff responded: “For the last five years, I want

the Utility Department audit log that details the date, time, whom accessed and

4 The term “audit trail” is synonymous with the term “audit log.”

http://www.webopedia.com/TERM/A/audit_trail.html

http://www.webopedia.com/TERM/A/audit_trail.html



what record was accessed for all personally identifiable information.” Petition, Ex.

H-1, ¶1.

3. On May 28, 2008, City responds to the May 21, 2008, IPRA request

with a memo regarding “determining a deposit.” The memo was not the requested

audit logs. Petition, p. 6 ¶24 and Ex. G.

4. Inspection was not allowed within three business days of the May 21,

2008, IPRA request. Custodian of Records failed to “explain in writing [within the

three business days] when the records will be available for inspection or when the

public body will respond to the request.” 14-2-8 (D).

5. Custodian of Records did not provide a written explanation of denial

or produce the records for inspection within 15 days to the May 21, 2008, IPRA

request. Damages shall be awarded up to $100 per day from June 5, 2008, until the

production of the record on December 5, 2011, 1,278 days. Petition ¶37; 14-2-11

(C).

6. On May 28, 2008, Plaintiff again requested under IPRA: “For the last

five years, I want the Utility Department audit log that details the date, time, whom

accessed and what record was accessed for all personally identifiable information.”

Petition, pg. 6, ¶25; Petition, Ex. H-1, ¶2.



7. On May 30, 2008, City refuses to comply with the IPRA request of

May 28, 2008, for the “‘audit log’ until a deposit of $15,000 is received from you

to cover the expense of printing the report for your inspection.” In addition, City

claims the request is burdensome. Petition, pg. 6, ¶27, Petition, Ex. I, ¶1. 14-2-10.

8. City Commissioners and City Attorney are copied on the May 30,

2008, IPRA response demanding $15,000 prior to allowing inspection of public

records under IPRA. Petition, Ex. I.

9. City did not provide Plaintiff with a written explanation of valid

denial nor the production of the records within 15 days for the May 28, 2008,

IPRA request. Damages shall be awarded up to $100 per day from June 12, 2008,

until the production of the record on December 5, 2011, a total of 1,271 days.

Petition, ¶37. 14-2-11 (C).

10. On July 9, 2008, Plaintiff informs Defendants that the $15,000

demand is unreasonable, a “direct attempt to deny [Plaintiff] access to a public

record” and is an “attempt[] by the City to dissuade an ‘informed citizenry’ with

unreasonable charges.” Petition, Ex. J-2 ¶¶2-3.

11. On July 9, 2008, Plaintiff again requests under IPRA the computer

database audit log “either as an electronic copy or to visually inspect.” Petition,

Ex. J-1 ¶¶3-7 and J-2 ¶¶2, 4-6.



12. Plaintiff clarifies on July 9, 2008, an audit log for the “computer

database” and an audit log for the application cards exist separately, and both need

to be provided for inspection under IPRA. Petition, Ex. J-2, ¶¶5-6.

13. City Commissioners and City Attorney are copied on the July 9, 2008,

IPRA request and letter protesting the demand for $15,000 and attempt by City to

dissuade an informed citizenry through demand for fees to inspect public records.

Petition, Ex J-2.

14. On July 14, 2008, City responded to “Request for documents dated

7/9/08.” City requested “additional time” to provide the “printout of the computer

audit log.” The response fails to address the audit log for the application cards also

requested on July 9, 2008. Petition, Ex. K, ¶5.

15. Inspection was not allowed within three business days of the July 9,

2008, IPRA request. City failed to “explain in writing [within the three business

days] when the records will be available for inspection or when the public body

will respond to the request.” 14-2-8 (D).

16. City Commissioners and City Attorney are copied on the July 14,

2008, IPRA response requesting additional time to respond to the “request for

documents dated 7/9/08.” Petition, Ex. K.



17. City did not provide Plaintiff with a written explanation of denial or

disclose the records requested under IPRA on July 9, 2009 within 15 days.

Damages shall be awarded up to $100 per day from July 24, 2008, until disclosure

on December 5, 2011, a total of 1,229 days. Petition, ¶37; 14-2-11 (C).

18. On November 18, 2011, Defendants filed an affidavit dated

November 10, 2011, from Berna Garcia. Ms. Garcia states the “City has and

utilizes Application Audit Log.” It is further described that this “log keeps the

date, the time, the customers’ name, the reason for removing the card from file and

initials of the person that made the inquiry.” Garcia Affidavit.

19. On December 5, 2011, City disclosed “they are unaware” of an

“application audit log,” and said log was not produced for inspection. Second

Karadi Affidavit, ¶14.

20. The “application audit log” does not exist contrary to Garcia Affidavit

that City has and utilizes said audit log to protect personally identifiable

information located on the application cards locked in a vault every night. Toomey

Affidavit, ¶¶2-8.

21. City’s failure to reply to the July 9, 2008, IPRA request for the “audit

log for the [application] cards locked in a vault every night” that no such record

exists deprived Plaintiff the fundamental right to obtain accurate, complete and



timely information that City was not protecting SSN through auditing of access to

the application cards. Petition, ¶38; Toomey Affidavit, ¶¶4-5, 8; 14-2-5.

22. Defendants’ failure to disclose the requested ADG Utility Billing

System audit log thwarted Plaintiff’s right and ability to obtain accurate, complete

and timely information about governmental activities. Toomey Affidavit, ¶4;

14-2-5.

23. On December 5, 2011, the ADG Utility Billing System audit log was

disclosed by City. The retrieval, redaction and download of the ADG Utility

Billing System audit log was not burdensome. Second Karadi Affidavit, ¶7-9, 11,

22, 24-28; 14-2-10.

24. CSV file format is an existing file format of the ADG Utility Billing

System software. Providing the ADG Utility Billing System audit log in a CSV

file format did not require rewriting the software, installation of any additional

components or ODBC connectors, and did not require 1,366 hours to produce.

Second Karadi Affidavit, ¶¶7-9, 11, 22, 24-28.

25. The audit log is an automated subset of the ADG Utility Billing

System and are public records that “are used, created, received, maintained or held

by or on behalf of any public body and relate to public business.” Second Karadi

Affidavit, ¶¶7-9, 11, 22, 24-28; 14-2-6 (E).



26. Removing exempt information from a nonexempt public record is not

the creation of a new record. 14-2-9.

27. Producing a subset of records from a database is not the creation of a

new record. 14-2-9.

28. City demanded $15,000 prior to inspection for redacting confidential

information. Petition, ¶27 and Ex. I; 14-2-7; 14-2-9.

29. There is no valid “per page” computation of an electronic record, and

therefore actual costs of copying an electronic record cannot be set “per page.”

14-2-7; 14-2-9.

30. City Commissioners are rightly named as parties to the IPRA

enforcement action as they were fully aware of the IPRA disputes, the demand for

$15,000 prior to inspection, and the demand for fee was not an “actual cost” and

was intended to thwart Plaintiff’s right and ability to obtain accurate, complete and

timely information about governmental affairs. Petition, ¶¶39-43; 14-2-6; 14-2-7.

31. City Commissioners failed to protect the “general welfare” of the

municipality by failing to hold City Manager responsible for the violations of

IPRA, violating the fundamental rights of the public and not protecting the SSN of

its utility customers. Petition, ¶¶39-43; 3-14-12; 14-2-5.



ARGUMENT

Plaintiff invites this Court to take judicial notice of County of Bernalillo

Cause No. D-202-CV-2009-1587, Foy v. New Mexico Educational Retirement

Board wherein the Hon. John W. Pope ordered Defendants to “keep[] in mind that

one purpose of the Inspection of Public Records Act is to make ‘the maximum

possible information’ available to requesters as easily and cheaply as possible.”

Defendants make the least possible information available to requesters as

laboriously and costly as possible, if at all.

A. Fundamental Right to Inspect Public Records

New Mexico’s Inspection of Public Records Act embodies New Mexico’s

policy of open government and is codified at 14-2-1 -12. With very limited

exceptions, IPRA provides that “[e]very person has a right to inspect public

records of this state.” 14-2-1 (A). The Legislature’s stated purpose in enacting

IPRA 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.” 14-2-5. IPRA further states that providing persons with such

information “is an essential function of a representative government and an integral

part of the routine duties of public officers and employees.” Id.



Defendants asserted, however, that City’s “will” overrides the public policy

of the State of New Mexico:

Therefore, the legal issue is quite simple; in what manner was the City

willing and able to comply with Ms. Toomey's request for an "audit

log", while at the same time preserving the confidential and private

information (their SSN's) of its utility customers.

Response to Complaint, pg. 3.

It is not Defendants’ “will” or choice as to whether or not to comply with

IPRA. It is a requirement as the declared public policy of this state and a

fundamental right of the people. 14-2-5.

Defendants are correct in that “the legal issue is quite simple.” Defendants

are required to comply with IPRA by providing a redacted audit log for inspection.

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.

14-2-9 (A).

New Mexico courts have long recognized and acknowledged IPRA’s core

purpose of providing “access to public information and thereby encourag[ing]

accountability in public officials.” Bd. of Comm’rs of Doña Ana County v. Las

Cruces Sun-News, 2003-NMCA-102, ¶ 29, 134 N.M. 283, 76 P.3d 36. “[A] citizen

has a fundamental right to have access to public records.” State ex rel. Newsome v.



Alarid, 90 N.M. 790, 797, 568 P.2d 1236, 1243 (1977). “The citizen’s right to

know is the rule and secrecy is the exception.” Id. “People have a right to know

that the people they entrust with the affairs of government are honestly, faithfully

and competently performing their function as public servants.” Doña Ana,

2003-NMCA-102, ¶ 29 (internal quotation marks and citation omitted).

B. Public Records with Reasonable Particularity

To determine whether disclosure is required as a public record, “[e]ach

inquiry [begins] . . . with the presumption that public policy favors the right of

inspection.” See Doña Ana, 2003-NMCA-102, ¶ 11.

The public’s right to inspect, however, is not without limitation. IPRA

contained prior to its 2011 amendment, twelve narrow statutory exceptions

enumerated in 14-2-1 (A). 5 In addition to these statutory exceptions, our Supreme

Court crafted a non-statutory confidentiality exception known as the “rule of

reason.” Newsome, 90 N.M. at 797, 568 P.2d at 1243. The rule of reason analysis

is applicable only in those cases where a public entity seeks to withhold public

records that do not fall within one of the statutory exceptions contained in Section

14-2-1 (A). City of Farmington v. The Daily Times, 2009-NMCA-057, ¶ 8, 146

N.M. 349, 210 P.3d 246.

5 The removal of exceptions 7, 9, 10 and 11 in 2011 were simply moved to other statutes.



Defendants did not claim one of the twelve exceptions or confidentiality

under the “rule of the reason” during the request and response period nor during

the enforcement action. In fact, Defendants have made it clear their only defense

is the audit logs do not exist. Response to Complaint, p. 3; Motion to Dismiss,

¶¶6-8, City’s Reply to Response to Motion to Dismiss, ¶¶1, 7-10; Response to

Motion to Strike, ¶2; Response to Motion for Judgment, p. 2.

In this action, Defendants began to claim the audit logs did not exist only

after an enforcement action was filed. Prior to the enforcement action, the audit

logs existed on May 30, 2008, if Plaintiff paid $15,000 prior to inspection and

“additional time” was requested on July 14, 2008 to provide the database audit log.

Pettion, ¶¶27, 29.

This is not the first time, however, Defendants have utilized the defense

“does not exist” in an enforcement action when, in fact, records do exist.

Defendants requested the Court take judicial notice of Sierra County Cause No.

CV-2009-159, Audette and Toomey v. City of Truth or Consequences, and claimed:

In that case, the Petitioner is seeking the production of non-existent

DVD recordings. The Petitioner improperly uses the Courts to request

non-existent information.

Reply to Response to Motion to Dismiss, p. 3, ¶11.



In fact, Defendants regularly utilize the specious argument that records do

not exist to interpose delay and obfuscate the issues, and did so in this case, too.

The Court found the DVD recordings did exist and Plaintiff was “not an elf”

watching herself in miniature on the television at governmental meetings. Toomey

Affidavit, ¶¶10-12.

Defendants no longer wait until an enforcement action has been filed,

however, to claim records which “exist do not exist.” For example, Exhibit R to

the Petition is an IPRA request for the “instruction manuals” of the ADG Utility

Billing Software. Exhibit S to the Petition is the IPRA response claiming “no

written instruction manual.” The instruction manual does exist and was provided

to Plaintiff’s expert witness Mr. Karadi on December 5, 2011. Second Karadi

Affidavit, ¶16; Toomey Affidavit, ¶¶14-16.

The Fenn, Grower and Toomey Affidavits are replete with numerous

examples of IPRA responses from City stating records “do not exist” when, in fact,

records do exist. Defendants don’t have the “will” to comply and are becoming

creative in the numerous methods they employ to violate IPRA, including “this

office” has no records and redacting records would be creating a new record.



Defendants even claim records do exist when they do not in order to thwart

accountability and hide dishonest acts. See Grower Affidavit, Fenn Affidavit, and

Toomey Affidavit.

What is clear is there is a pattern of abuse in violating IPRA by Defendants,

and it is very evident in this current action. The defense in this enforcement action

is that disclosing the audit log is akin to creating a new public record. Motion to

Dismiss, pp. 2-3, ¶¶5-8.

Public records are broadly defined in IPRA as:

all documents, papers, letters, books, maps, tapes, photographs,

recordings and other materials, regardless of physical form or

characteristics, that are used, created, received, maintained or held by

or on behalf of any public body and relate to public business, whether

or not the records are required by law to be created or maintained.

14-2-6 (F).

Defendants even utilize in their pleadings a definition of public records

outside of IPRA, and instead utilize 14-3-2(C) rather than 14-2-6 (F). Motion to

Dismiss, ¶7; Reply to Response to Motion to Dismiss, ¶9.

Defendants’ reasoning as to how retrieving the audit log is creating a new

record has never been clearly stated, and has remained somewhat of a mystery to

Plaintiff. Plaintiff posits, however, that Defendants are actually playing a game of

semantics in an attempt to obfuscate the issues and mislead the court.



Defendants’ entire argument of the Motion to Dismiss and Reply to

Response to Motion to Dismiss is “IPRA does not contemplate creating new

documents to satisfy a request.” Motion to Dismiss, ¶9; Reply to Response to

Motion to Dismiss, ¶7. This is a not true. IPRA does not “require a public body to

create a public record.” 14-2-8 (B). Plaintiff did not make requests under, nor

seek enforcement of, the Inspection of Public Documents Act; it is the Inspection

of Public Records Act.

A “document” is defined as “a written or printed paper.”6 “Document” is

only one of the many “forms of materials, regardless of physical form or

characteristics” that IPRA defines as a public record. 14-2-6 (F).

If, however, one assumes Defendants were not attempting to obfuscate the

issues and mislead the Court, and exchanges Defendants’ use of the word

“document” for “record,” Plaintiff reasons that Defendants’ contention that

providing the audit log is creating a new record is based upon one or both of the

following: (1) Redacting exempt information from a nonexempt public record is

the creation of a new record. (2) Providing a subset of records from a database is

the creation of a new record.

Not only are these contentions groundless and meritless, they are specious.

6 http://www.thefreedictionary.com/document

http://www.thefreedictionary.com/document



1. Redacting exempt information from a nonexempt public record is

not the creation of a new record.

Defendants’ Response to Complaint states that redacting the audit log

“would contemplate that approximately 55,000 copies would need to be

generated.” Response to Complaint, p. 3 ¶2. Since the definitions of both “to

generate” and “to create” are “to bring into being,”7 Defendants are stating the

process of redaction creates a new record.

Defendants contend in their Motion to Dismiss that the “audit log could only

be created” in the redaction process described by Hupp—manually blacked out

after printing—and “in the absence of the [redacted] document being created, the

requested audit logs do not exist.” Defendants further claim “Petitioner is asking

the City to create over 50,000 pages of new documents.” Motion to Dismiss, pp.

2-3, ¶¶5-8.

The same statements are repeated word-for-word in the Response to Reply

to Motion to Dismiss, p. 3 ¶¶7-10.

As the Fenn Affidavit affirms, Defendants recently made this claim in an

IPRA response to Mr. Fenn in September 2011. Defendants refused to comply

with IPRA and provide the requested public records as the database contains

7 http://www.thefreedictionary.com/generate; http://www.thefreedictionary.com/create

http://www.thefreedictionary.com/generate

http://www.thefreedictionary.com/create



confidential information. The response continues it is not required to “creat[e] a

new record” by redacting the exempt information. Fenn Affidavit, ¶9; Toomey

Affidavit, ¶24, Ex. H.

IPRA clearly disagrees, as “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.” 14-2-9 (A).

Defendants claim that the audit log did not exist unless the redacted audit log

was created as a defense in an IPRA enforcement action is groundless, meritless,

and absurdly specious. It allows Defendants to keep all utility records and any

other record with exempt information secret, enabling “keepers of the record”

inordinate powers akin to a secret police. “The citizen’s right to know is the rule

and secrecy is the exception.” Newsome, 90 N.M. 790.

Redacting a public record is not the creation of a new record.

2. Providing a subset of records from a database is not the creation

of a new record.

While not as prevalent a defense in Defendants’ pleadings as the “redacting

is creating,” Defendants also claimed “The City does not maintain a computer

‘audit log.’” Response to Complaint, p. 3.



Since the ADG Utility Billing System audit log is an integral part of the

City’s utility software and is automatically “maintained,”8 Plaintiff and the Court

must surmise Defendants made a knowingly false statement or surmise Defendants

meant the audit log did not exist separately from the ADG Utility Billing System

database since City has never “chose[n] option #10, Export Data for SS/WP”9 and

rendered the audit log.10

Arguing upon the second point, the retrieved ADG Utility Billing System

audit log is a subset of the database and exists as records in the database. Simply

put, reporting of data is separate from the creating of data.

As IPRA requires a request to “identify the records with reasonable

particularity,” it is not unreasonable to expect IPRA to require a response to be

“reasonably particular” to the request. 14-2-8 (C).

For example, if an IPRA request is made for any building permits for an

address (“reasonably particular”), the response of pointing to 15 filing cabinets and

claiming the IPRA response has been provided, would be a violation of the spirit

and intent of IPRA.

8 “Maintain is defined as “to keep in existence.” http://dictionary.reference.com/browse/maintain

Since, the audit log exists and was produced on December 5, 2011, it was “maintained.” 9 The enumerated process to retrieve the ADG Utility Billing System audit log. See Karadi

Affidavit, ¶¶6-7. 10

That City is not utilizing the ADG Utility Billing System audit log is troubling in itself. It

confirms Plaintiff’s initial complaints to the City that “they cannot protect the data” which

initiated the IPRA requests.

http://dictionary.reference.com/browse/maintain



It is well-regarded that a public body is not required to “compile

information” from the public body’s records or otherwise create a new public

record in response to a request:

A person asks a county personnel officer for a list of all employees

with college degrees. The office does not keep lists of employees with

college degrees, although college degree information may be included

in an employee’s personnel file. The records custodian is not required

to go through each file to find and list employees with college

degrees. It may, however, make the nonexempt portions of all

personnel files available to the requester so she can peruse them in

search of employees with college degrees.

Office of the New Mexico Attorney General, Inspection of Public Records Act

Compliance Guide 34 (6th ed. 2009) (hereinafter “IPRA Compliance Guide”).

Retrieving the audit log, or retrieving a requested subset of a database, is

not, however, “compiling” information. Compile is defined as putting together or

composing materials gathered from several sources.11

A database is one source.

As the legislature has increased its technical knowledge, 14-2-9 was

amended in 2011 to include a requirement that electronic records be provided in

electronic format if requested. 14-2-9 (B).

As the utilization of databases becomes more and more prevalent in the

management of records of all sorts, the legislature provided in IPRA the above

language to expand upon the only other references to electronic records (i.e.,

11

http://www.thefreedictionary.com/compile

http://www.thefreedictionary.com/compile



databases) as public records found in the Public Records Act. 14-3-1 -25. In fact,

the Legislature included new language to 14-2-9 to ensure there was no confusion

between the Inspection of Public Records Act (14-2-1 -12) providing the “greatest

possible information regarding the affairs of government” and the Public Records

Act (14-3-1 -25) providing for the sale of data for commercial purposes:

Nothing in this section regarding the provision of public data in

electronic format shall limit the ability of the custodian to engage in

the sale of data as authorized by Section 14-3-15.1 NMSA 1978,

including imposing reasonable restrictions on the use of the database

and the payment of a royalty or other consideration.

14-2-9 (D).

Both an automated subset of a database and a “reasonably particular” subset

of a database are public records subject to inspection under IPRA. When an IPRA

request is made for a subset of a database in electronic format, it is “exported.” As

all databases support exporting into CSV,12

a file format that is easily

human-readable, an electronic request for a subset provided in CSV is an existing

“file format” at the time of the request. 14-2-9 (B).

The audit logs for the ADG Utility Billing System exist electronically and

were produced electronically on December 5, 2011 for inspection. The audit log is

an automated function of the ADG Utility Billing System and are public records

12

http://en.wikipedia.org/wiki/.csv

http://en.wikipedia.org/wiki/.csv



that “are used, created, received, maintained or held by or on behalf of any public

body and relate to public business.” See Second Karadi Affidavit; 14-2-6 (E).

C. The “Cost” of Public Records

IPRA defines “inspect” as to “review all public records that are not excluded

in Section 14-2-1 NMSA 1978.” 14-2-6 (C). Plaintiff’s IPRA request of May 21,

2008, requested “to inspect.” Plaintiff’s request of May 28, 2008, requested “to

inspect.” Plaintiff’s request of July 9, 2008, requested “to visually inspect” or for

City to provide an electronic copy. Petition, Ex. E, H and J, respectively.

Defendants required payment of $15,000 in advance of allowing inspection

for the May 28, 2008, IPRA request:

City will not comply with your request dated 5/28/08 (attached)

related to the “audit log” until a deposit of $15,000 is received from

you to cover the expense of printing the report for your inspection.

Petition, Ex. I (emphasis added).

The demand for $15,000 to inspect was a “direct attempt to deny [Plaintiff]

access to a public record” and is an “attempt[] by the City to dissuade an ‘informed

citizenry’ with unreasonable charges.” Petition, Ex. J.

While IPRA provides that a “reasonable fee” may be charged for copying

public records, IPRA does not allow a fee for inspection:

A records custodian may require a person to pay before the custodian

makes copies. This does not permit the custodian to require



payment in advance of allowing inspection. Rather, the custodian

should provide the records for inspection, and, if the requester

subsequently requests copies of particular records, the custodian may

require payment in advance for the pages designated for copying.

IPRA Compliance Guide, p. 38 (emphasis added).

IPRA further provides that a Custodian of Records must provide reasonable

facilities to make copies, allowing the requestor to utilize their own equipment to

copy public records. 14-2-7 (D). As such, if Defendants had provided for

inspection what they claimed would be 55,000 pages of an audit log, Plaintiff had

the right to bring in her own equipment and copy those 55,000 pages without any

imposition of a fee. Response to Complaint, p. 2; Motion to Dismiss, ¶8. In fact,

Plaintiff has previously done just that: utilized her own equipment to scan in three

years of meeting minutes, for example.

IPRA further prohibits charging fees for redaction. 14-2-9 (C)(6).

Defendants are aware “we cannot charge for the [personnel time of] data

redaction,” as Mr. Hupp expressed in his justification for the $15,000 demand.

However, the Hupp calculations “result[ed] in a printing and copying charge of

$13,650”13

for both the initial printing and a copy of the redacted report. Response

13

Mr. Hupp explains the difference in the $15,000 and $13,650 as “reports run for the initial

calculation showed a slightly higher page/day count.”



to Complaint, Ex. 2. In other words, while not charging for the personnel time to

redact, Mr. Hupp’s calculation of costs is clearly for redaction contrary to IPRA.

Since the Defendants’ argument that the redaction process required manually

blacking-out printed documents is specious, and knowingly so, this was a

knowingly illegal request for advance payment meant to chill IPRA requests.

As an “integral part of the routine duties of public officers and employees,”

IPRA does not allow for a fee to retrieve records for inspection. 14-2-5. In fact,

inspection of public records—including a redacted public record—is free. 14-2-9

(C)(6).

Most public bodies, including City, have a set fee for a requested photocopy

of a public record after inspection. City’s set fee is $0.25 per copy. Said copy fee

is also reasonable for scanning a record to respond to it electronically as most

modern photocopy machines also include the option to copy as an electronic record

(i.e., scan). While it could be argued that the actual cost of a scan is less than a

paper copy, since neither paper nor toner is utilized, the difference is nominal.

IPRA also allows “the actual costs associated with downloading copies of

public records to a computer disk or storage device,” such as onto the USB drive

Plaintiff provided. 14-2-9 (C)(3).



Since the actual time/cost expended by Defendants of three minutes to

provide the audit log on the storage device included both retrieval and copy to a

storage device, it could easily be argued that the actual downloading onto the USB

drive took less than 30 seconds. Since a public body is only allowed to charge for

the “actual costs” at 30 seconds, Defendants demanded $500 a second or $1.8

million an hour.14

Petition, Ex. I.

As ridiculous as the analysis of “actual cost” in the demand for $15,000,

Defendants continue to charge outside of IPRA’s allowance of “actual cost” in

order to dissuade the public from becoming informed citizenry through IPRA.

14-2-9 (C).

City passed Resolution 07-10/1115

in September 2010 and included a “Fees

for Production of Public Record.” City charges $0.25 per "page" for "file transfer"

to "CD/DVD's/USB Drive/Email" of electronic records. Said fee is not based upon

any "actual cost" for downloading copies as allowed per 14-2-9 (C), as further

explained.

To continue the analysis utilizing the ADG Utility Billing System audit log

retrieved on December 5, 2011, based upon Resolution 07-10/11, Plaintiff owes

14

30 seconds at $15,000. 15

http://www.torcnm.org/downloads/clerks/Resolution%207.10-11.pdf. The original resolution

approved on September 13, 2010, was amended on September 27, 2010. It was amended as

Resolution 07-10/11 excluded IPRA requests via email in violation of 14-2-8 (F).

http://www.torcnm.org/downloads/clerks/Resolution%207.10-11.pdf



City $2,435.50 for the retrieved electronic record "as is" (9,742 "pages" at $0.25

per "page"). At 30 seconds to download the electronic record to the provided USB

drive, City claims an "actual cost" of $292,260 per hour utilizing the set fees under

Resolution 07-10/11.16

Resolution 07-10/11 downloading fee of $0.25 per page is in violation of

IPRA and another attempt by Defendants to dissuade an informed citizenry.

Simply, a per-page fee for downloading electronic records cannot be supported.

14-2-9.

Defendants claimed an absurd and unsupportable manual process of

redaction,17

rather than “utilizing methods or redaction tools,” to make the least

possible information in the most burdensome and expensive manner possible.

14-2-9 (A).

Defendants violate IPRA in demanding fees prior to inspection and charging

outrageous fees well beyond “actual cost” to dissuade an informed citizenry and

violate the “fundamental right to have access to public records.” Newsome, 90

N.M. 790.

16

As the ADG Utility Billing System audit log was retrieved and copied after September 2010,

Resolution 07/10-11 is controlling for fees incurred on December 5, 2011. 17

Defendants were also redacting information from their sample copies that went beyond

redacting confidential information. However, since the audit log has now been produced without

the excessive and convoluted redaction as Defendants sampled, the redaction issue is no longer a

material issue.



And if that doesn’t work, the City will claim the records “do not exist.”

D. Denial and Enforcement

Under IPRA's "enforcement" provision, an award of damages, attorney fees

and costs are mandatory when (1) the request has been denied, and (2) the

requester is successful in a court action to enforce the Act. 14-2-12.

IPRA is not about the providing of documents. It is just as important that a

record does not exist as it is that a record does exist. IPRA’s purpose is to provide

the “greatest possible information regarding the affairs of government and the

official acts of public officers and employees.” 14-2-5. “People have a right to

know that the people they entrust with the affairs of government are honestly,

faithfully and competently performing their function as public servants.” Doña

Ana, 2003-NMCA-102, ¶ 29 (internal quotation marks and citation omitted).

In this case, the nonexistence of an audit log for the application cards proves

the safety of SSN is at risk. Denied this information allows only speculation and

no correction or accountability of a security risk.

Defendants’ continued failure to definitively provide the information as to

whether or not the “application audit log” exists,18

denies Plaintiff the right to

definitively determine whether the Utility Department is “competently” protecting

18

City responded on December 5, 2011, “they are unaware” of whether the application audit log

exists although Garcia Affidavit and Exhibit 4 to Response to Complaint claim its existence.



the community’s highly sensitive information. Plaintiff has definitively

determined, however, that Defendants are not “honestly” performing their function

as public servants. See Toomey Affidavit.

Under the plain language of the “enforcement” provision, whether the

requested records were found by this Court to exist or not exist is immaterial to an

award of damages.

If a records custodian fails to respond to a records request within

fifteen days of receiving the request and a court concludes that the

failure to respond was unreasonable, the court shall award the plaintiff

damages not to exceed one hundred dollars a day. Section 14-2-

11(C)(1)-(2). In such cases, damages “accrue from the day the public

body is in noncompliance until a written denial is issued” and shall

“be payable from the funds of the public body.” Section 14-2-

11(C)(3)-(4).

San Juan Agric., 2011-NMSC-011, ¶13.

Simply, Defendants did not provide the required written explanation of

denial within fifteen days after receipt of the three separate written requests for

audit logs. 14-2-11. Considering compliance required 20 minutes, “unreasonable”

may be an understatement.

Although Defendants did claim “burdensome” when they demanded

$15,000, more than a year between claim of burden and filing of the enforcement

action is beyond a “reasonable period of time” for the 20 minutes it actually took to

retrieve, redact and electronically copy the audit log. 14-2-10.



Regardless, a request to inspect a public record cannot be denied merely on

the basis of burden and does not warrant a refusal to disclose. Newsome, 90 N.M.

790, 568 P.2d 1236.

“IPRA includes remedies to encourage compliance and facilitate

enforcement.” San Juan Agric., 2011-NMSC-011, ¶12. I don’t believe, however,

the Legislature ever envisioned a public body so intent upon violating the public

policy of New Mexico and the fundamental rights of its citizens as have

Defendants. See Grower Affidavit, Fenn Affidavit, and Toomey Affidavit.

Since these initial IPRA requests and responses were made in 2008, City has

improved on providing written explanations of denial: records do not exist when

they do exist; “this office” doesn’t have any records; that would be creating a “new

record.” What has not improved is providing the “greatest possible information” to

determine whether our public servants are “honestly, faithfully and competently

performing.” Doña Ana, 2003-NMCA-102, ¶ 29 (internal quotation marks and

citation omitted).

IPRA allows for damages up to $100 per day. 14-2-11 (C). “IPRA’s

damage provisions are intended to encourage public entities’ prompt compliance

with records requests.” San Juan Agric, 2011-NMSC-011, ¶13. When Defendants



were not encouraged by the potential of damages up to $100 per day and refused

compliance, action was required. 14-2-12.

For the egregious actions both in the request/response phase and during the

enforcement action, consequences are appropriate and encouragement necessary

with an award of full damages and costs for each of the three requests until

disclosure on December 5, 2011, the day the records were disclosed—1,278 days,

1,271 days, and 1,229 days—for a total of $377,800.

Defendants seek to avoid the mandatory language by arguing the “audit log

does not exist.” Strangely, Defendants claimed throughout the enforcement action

that only the ADG Utility Billing System audit log did not exist. Defendants

simply ignored the application audit log, except for the Garcia Affidavit claiming it

existed, and it does not exist. In other words, Defendants claimed the audit log that

does exist doesn’t exist (ADG Utility Billing System audit log) and claimed the

audit log that doesn’t exist does exist (application audit log).

Was this a calculated strategy to interpose delay and obfuscate the issues?

That is for this Court to judge.

CONCLUSION

It is true that “the legal issue is quite simple; in what manner was the City

willing and able to comply with Ms. Toomey's request for an ‘audit log,’ while at



the same time preserving the confidential and private information (their SSN's) of

its utility customers.” Response to Complaint, pg. 3.

It really is quite simple: Defendants were able to comply in 20 minutes to

retrieve, redact and copy the ADG Utility Billing System audit log. Defendants

simply weren’t willing to comply. Consequences are appropriate.

WHEREFORE, for all the reasons enumerated herein, Plaintiff’s Motion for

Summary Judgment should be granted, and the Court should enter judgment

(1) declaring Defendants violated IPRA on three requests of May 21, May 28 and

July 9, 2008; (2) award statutory damages and costs; and (3) for such other relief as

the Court deems necessary and just.

Respectfully submitted,

JANUARY 13, 2012 ______________________________

DEBORAH L. TOOMEY, Pro se

7010 Phoenix Ave NE, #518

Albuquerque NM 87110

Phone: (505) 315-8503

Fax: (505) 214-5771

120113 Motion for Summary Judgment

Documents

Transcript of 120113 Motion for Summary Judgment