KNME Ordered to Mediate Public Records Lawsuit As Fines Mount
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After more than five years of resisting a lawsuit requesting inspection of public records, KNME-TV has been ordered into mediation where it will face claims for civil fines and attorney fees that could reach $200,000 and higher.
KNME-TV is the Public Broadcasting System (PBS) affiliate at the University of New Mexico.
The suit arose from KNME-TV’s production for hire of a misleadingly labeled “news documentary” on the controversial Navajo water settlement. The program was called “The Water Haulers” and was commissioned and paid for by the Navajo Nation and the State Engineer of New Mexico. They wanted the program to assist their lobbying efforts in Congress to secure hundreds of millions of dollars to implement the water rights settlement. Our previous report showed that KNME’s clients exercised control over the content and script of the program. Any information or voices raising questions about or criticizing the proposed settlement or detracting from the message the Navajo Nation and State Engineer wanted to deliver to KNME’s viewers were removed from the final production.
A group of water users opposed to the water rights settlement sought to see the records behind the broadcast. They filed a request to inspect public documents. KNME–which is a state agency by virtue of its status within the University of New Mexico–stonewalled. Only after suit was filed under the New Mexico Inspection of Public Records Act did KNME begin allowing inspection of some of its files.
But it has continued to withhold documents that may reveal the extent to which KNME compromised its journalistic integrity. Producer notes and internal communications between production staff are being kept secret on grounds the New Mexico Supreme Court is unlikely to recognize as valid exemptions from the law’s general rule of disclosure.
KNME initially attempted to block the suit by raising a hyper-technical objection about a lawyer submitting a public records request on behalf of his client instead of a letter signed by the client itself. The Supreme Court unanimously rejected KNME’s objections and sent the case back to district court over a year ago. KNME did not relent, and has continued to withhold public records from public view.
Statutory fines of $100 a day have been accumulating, Under the Inspection of Public Records Act, KNME may also be have to pay five years of attorney fees to plaintiffs. Taxpayers have been picking up the tab for KNME’s lawyers who were engaged by the state’s Risk Management Division at rates up to $150 an hour.
On November 26, 2012, Judge Nan Nash of the Second Judicial District Court in Albuquerque ordered all parties to the suit to participate in mediation by February 1, 2013, in an effort to settle the case. The parties have selected former District Court Judge Jay Harris as mediator.
The case had been briefly dismissed for lack of activity by the court clerk. But Judge Nash reinstated the matter at plaintiffs’ request. Plaintiffs argued that the though the court file did not show activity, the case had been active off-record as the parties went back and forth in an effort to arrange mediation. KNME and the other defendants, despite claiming they wanted to mediate and settle the case, urged Judge Nash to uphold the clerk’s dismissal. She rejected their arguments.
The correspondence between the parties’ attorneys, which was included in the court file as exhibits to briefs, reveals that KNME does not have insurance coverage for any civil fines it may have to pay. Those funds may have to come from KNME’s general revenues.
In addition to KNME, the University of New Mexico and Albuquerque Public Schools, among other public entities, are named as defendants. UNM and APS jointly operate KNME. Their attorney, who represents all the defendants, made it clear in the correspondence that only the public television station is withholding records from inspection.
KNME’s attorney stated in one e-mail between counsel that KNME is withholding documents on grounds they are drafts and producer’s notes allegedly protected under the First Amendment to the United States Constitution. KNME has been withholding the documents since 2007 on the claim that they are protected from disclosure because they would reveal the “thought process” of the station’s producers.
KNME’s producers are state employees. None of the KNME staff who produced the fake documentary were employed as journalists by any independent news organization.
Two recent appellate decisions greatly undermine KNME’s claims.
In Republican Party of New Mexico v. New Mexico Taxation and Revenue Department, the Supreme Court ruled that no exceptions are recognized to the Inspection of Public Records Act but those explicitly articulated in the Act itself, or as required by constitutional law. The New Mexico State Constitution does not contain a “thought process” clause. The Supreme Court ruled that no general “deliberative process” exception exists to the Inspection of Public Records Act. Only the Governor may assert that privilege, and it must be very narrowly applied.
In Edenburn v. New Mexico Department of Health, released only last week, the New Mexico Court of Appeals reaffirmed that draft documents are not exempt from disclosure. The law firm on the losing side of that case represents KNME. Some of the same unsuccessful arguments it rejected in Edenburn have been raised to justify KNME’s closed files.
As our first report pointed out, while it has been fighting the lawsuit, KNME ironically has portrayed itself as a champion of open government by co-sponsoring with the New Mexico Foundation for Open Government training sessions for citizens seeking access to public records.
It should be noted that the New Mexico Foundation for Open Government filed a friend of the court brief against KNME when this matter was before the New Mexico Supreme Court.