United States of America v. City of Albuquerque
ORDER by District Judge Robert C. Brack entered re 309 Motion to Clarify (jjs)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA
No. 1:14-cv-1025 RB-SMV
THE CITY OF ALBUQUERQUE,
THE ALBUQUERQUE POLICE
This matter is before the Court on the Joint Motion for Clarification (Doc. 309) filed on
October 23, 2017, and the parties’ briefs in support (Doc. 330, 332) filed on November 27, 2017.
The Parties seek clarification of Paragraph 315 1 of the Court-Approved Settlement Agreement
(CASA), a document the Parties drafted in good faith for the Court’s approval. (See, e.g., Doc.
134 at 2 (noting that the Parties had “filed a Settlement Agreement and a joint motion to approve
it[,]” which “represent[ed] over five months’ negotiation between the” City and the DOJ).)
The Court has inherent authority to interpret a consent decree “when its language results
in confusion.” EEOC v. Safeway Stores, Inc., 611 F.2d 795, 798 (10th Cir. 1979) (citations
omitted). Here, because there is tension between paragraph 315 of the CASA and the City’s
responsibilities under New Mexico’s Inspection of Public Records Act (IPRA), N.M. Stat. Ann.
Paragraph 315 of the CASA provides that “[t]he Monitor is not a state or local agency or agent thereof, and
accordingly, the records maintained by the Monitor or communications between the Monitor and the Parties shall
not be deemed public records subject to public inspection.” (Doc. 247-1 (CASA) ¶ 315.)
§ 14-2-1–12 (2011), the Court offers the following clarification of paragraph 315 to prevent
In adopting the CASA, the Court found that the CASA must be “fair, adequate,
reasonable, and in keeping with public policy.” (Id. at 4 (citing United States v. Colorado, 937
F.2d 505, 509 (10th Cir. 1991) (internal citation omitted)).) One such public policy of the State
of New Mexico, “to provide ‘all persons’ with ‘the greatest possible information regarding the
affairs of government[,]’” is embodied in IPRA. San Juan Agr. Water Users Ass’n v. KNME-TV,
2011-NMSC-011, ¶ 31, 150 N.M. 64, 257 P.3d 884, 891 (N.M. 2011); see also State ex rel.
Toomey v. City of Truth or Consequences, 287 P.3d 364, 371 (N.M. Ct. App. 2012). “Under
IPRA, ‘[e]very person has a right to inspect’ the public records of New Mexico.” San Juan Agr.
Water Users Ass’n, 257 P.3d at 887 (quoting N.M. Stat. Ann. § 14-2-1(A)).
Because the CASA must comport with applicable law and public policy, where CASArelated documents fall within IPRA’s definition of public records, those documents are subject to
disclosure under IPRA. According to IPRA, “‘public records’ means 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.” N.M. Stat. Ann. § 14-2-6(G). A “‘public body’ means the executive,
legislative and judicial branches of state and local governments and all advisory boards,
commissions, committees, agencies or entities created by the constitution or any branch of
government that receives any public funding, including political subdivisions, special taxing
districts, school districts and institutions of higher education . . . .” N.M. Stat. Ann. § 14-2-6(F).
It is clear that the Monitor, the monitoring team, and the DOJ fall outside of the definition
of a public body or agent of the state of New Mexico or the City of Albuquerque. 2 The Monitor
is an agent of the Court. Pursuant to the CASA, the Monitor is “subject to the supervision and
orders of the Court, consistent with this Agreement and applicable law.” (Id. ¶ 295.) The Monitor
was selected by the DOJ and the City, subject to the Court’s approval. (Id. ¶ 327.) This Court’s
“Memorandum Opinion and Order adopting the original Joint Motion to Approve Settlement and
Enter the Settlement Agreement as an Order” referred to the Monitor as “the eyes and ears of the
Court.” (Doc. 134 at 3.) The Monitor is not performing a public function delegated to the
Monitor by the City, but was brought to bear by forces outside of the City. See, e.g., Toomey,
287 P.3d at 371.
The same may not be said, of course, of the City, which must respond to viable IPRA
requests as it normally would. 3 This Court takes seriously its original promise to “ensure that the
Monitor does not collude with [the] parties to suppress public information.” (Doc. 134 at 6.) The
Court understands the Parties’ desire to protect communications in order “to engage in a free
exchange of proposals, positions, and information” with “candor and thoroughness” so that
“barriers to compliance are identified early and resolved quickly.” (Doc. 330 at 4.) As the parties
do not, however, offer any legal justification that would operate to take documents that are
otherwise disclosable out of IPRA’s reach, the Court cannot find a legal reason to protect the
Recognizing that the Monitor and DOJ may not waive confidentiality on the City’s behalf, the Court in its Order
adopting the CASA assured the Albuquerque Police Officers Association that the Monitor and DOJ will “maintain
all non-public information provided by the City in a confidential manner.” (Doc. 134 at 20–21 (quoting CASA ¶
The Court’s November 16, 2016 request that the City produce certain documents in camera should not be
construed as altering the City’s legal obligation to produce public records under IPRA. (See Doc. 328 at 245:19–
The Court makes no ruling on whether any of the documents relevant to the IPRA requests currently pending with
the City fall within one of the IPRA exceptions or are otherwise exempt from IPRA’s reach.
To be clear: the provisions of the CASA may not be contrary to applicable law, thus
Paragraph 315 may not be used to deny valid IPRA requests where the documents meet the
definition of “public records.” 5
IT IS SO ORDERED.
ROBERT C. BRACK
UNITED STATES DISTRICT JUDGE
It may be necessary for the Parties to follow the CASA-mandated procedure to modify Paragraph 315 if its
wording promotes confusion. The Parties may file a separate motion to that effect.
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