HOUSE HEALTH AND GOVERNMENT AFFAIRS COMMITTEE SUBSTITUTE FOR
HOUSE BILL 507
49th legislature - STATE OF NEW MEXICO - first session, 2009
AN ACT
RELATING TO INSPECTION OF PUBLIC RECORDS; ALLOWING EMAIL AND FACSIMILE REQUESTS TO INSPECT PUBLIC RECORDS; REQUIRING A RECORD CUSTODIAN'S SUPERVISOR OR DESIGNEE TO REVIEW DECISIONS ABOUT WHAT RECORDS ARE EXEMPT FROM INSPECTION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 14-2-7 NMSA 1978 (being Laws 1993, Chapter 258, Section 4, as amended) is amended to read:
"14-2-7. DESIGNATION OF CUSTODIAN--DUTIES.--Each public body shall designate at least one custodian of public records who shall:
A. receive and respond, subject to the provisions of Subsection A of Section 14-2-9 NMSA 1978, to requests to inspect public records;
B. provide proper and reasonable opportunities to inspect public records;
C. provide reasonable facilities to make or furnish copies of the public records during usual business hours; and
D. post in a conspicuous location at the administrative office of each public body a notice describing:
(1) the right of a person to inspect a public body's records;
(2) procedures for requesting inspection of public records;
(3) procedures for requesting copies of public records;
(4) reasonable fees for copying public records; and
(5) the responsibility of a public body to make available public records for inspection."
Section 2. Section 14-2-8 NMSA 1978 (being Laws 1993, Chapter 258, Section 5) is amended to read:
"14-2-8. PROCEDURE FOR REQUESTING RECORDS.--
A. Any person wishing to inspect public records may submit an oral [or], hard copy written, facsimile or email request to the custodian. However, the procedures set forth in this section shall be in response to a hard copy written, facsimile or email request. The failure to respond to an oral request shall not subject the custodian to any penalty.
B. Nothing in the Inspection of Public Records Act shall be construed to require a public body to create a public record.
C. A hard copy written, facsimile or email request shall provide the name, address and telephone number of the person seeking access to the records and shall identify the records sought with reasonable particularity. No person requesting records shall be required to state the reason for inspecting the records.
D. A custodian receiving a hard copy written, facsimile or email request shall permit the inspection immediately or as soon as is practicable under the circumstances, but not later than fifteen days after receiving a written request. If the inspection is not permitted within three business days, the custodian shall explain [in writing] in the same manner as the request was made when the records will be available for inspection or when the public body will respond to the request. The three-day period shall not begin until the hard copy written, facsimile or email request is delivered to the office of the custodian.
E. In the event that a hard copy written, facsimile or email request is not made to the custodian having possession of or responsibility for the public records requested, the person receiving the request shall promptly forward the request to the custodian of the requested public records, if known, and notify the requester in the same manner as the request was made. The notification to the requester shall state the reason for the absence of the records from that person's custody or control, the records' location and the name and address of the custodian."
Section 3. Section 14-2-9 NMSA 1978 (being Laws 1993, Chapter 258, Section 6) is amended to read:
"14-2-9. PROCEDURE FOR INSPECTION.--
A. Requested public records containing information that is exempt and nonexempt from disclosure shall be separated by the custodian prior to inspection. The custodian's supervisor, or the supervisor's designee, shall review the separation to ensure that only public records properly exempt from the right to inspect are not made available for inspection and the nonexempt information shall then be made available for inspection. If necessary to preserve the integrity of computer data or the confidentiality of exempt information contained in a database, a partial printout of data containing public records or information may be furnished in lieu of an entire database.
B. A custodian:
(1) may charge reasonable fees for copying the public records, unless a different fee is otherwise prescribed by law;
(2) shall not charge fees in excess of one dollar ($1.00) per page for documents eleven inches by seventeen inches in size or smaller;
(3) may require advance payment of the fees before making copies of public records;
(4) shall not charge a fee for the cost of determining whether any public record is subject to disclosure; and
(5) shall provide a receipt, upon request."
Section 4. Section 14-2-10 NMSA 1978 (being Laws 1993, Chapter 258, Section 7) is amended to read:
"14-2-10. PROCEDURE FOR EXCESSIVELY BURDENSOME OR BROAD REQUESTS.--If a custodian determines that a hard copy written, facsimile or email request is excessively burdensome or broad, an additional reasonable period of time shall be allowed to comply with the request. The custodian shall provide [written] notification to the requester in the same manner the request was made within fifteen days of receipt of the request that additional time will be needed to respond to the [written] request. The requester may deem the request denied and may pursue the remedies available pursuant to the Inspection of Public Records Act if the custodian does not permit the records to be inspected in a reasonable period of time."
Section 5. Section 14-2-11 NMSA 1978 (being Laws 1993, Chapter 258, Section 8) is amended to read:
"14-2-11. PROCEDURE FOR DENIED REQUESTS.--
A. Unless [a written] the request has been determined to be excessively burdensome or broad, a hard copy written, facsimile or email request for inspection of public records that has not been permitted within fifteen days of receipt by the office of the custodian may be deemed denied. The person requesting the public records may pursue the remedies provided in the Inspection of Public Records Act.
B. If a hard copy written, facsimile or email request has been denied, the custodian shall provide the requester with a hard copy written, facsimile or email explanation of the denial. The [written] denial shall:
(1) describe the records sought;
(2) set forth the names and titles or positions of each person responsible for the denial; and
(3) be delivered or mailed to the person requesting the records within fifteen days after the request for inspection was received.
C. A custodian who does not [deliver or mail a written] provide an explanation of denial pursuant to this section within fifteen days after receipt of a [written] request for inspection is subject to an action to enforce the provisions of the Inspection of Public Records Act and the requester may be awarded damages. Damages shall:
(1) be awarded if the failure to provide a timely explanation of denial is determined to be unreasonable;
(2) not exceed one hundred dollars ($100) per day;
(3) accrue from the day the public body is in noncompliance until a [written] denial is issued; and
(4) be payable from the funds of the public body."
Section 6. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2009.
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