SECOND JUDICIAL DISTRICT COURT

COUNTY OF BERNALILLO
STATE OF NEW MEXICO

PETER ST. CYR,

Plaintiff,

vs.

BILL RICHARDSON, Governor,

and MARCIA MAESTAS, Official
Records Custodian,

Defendants.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF FOR

VIOLATIONS OF THE RIGHT TO INSPECT PUBLIC RECORDS

COMES NOW PETER ST. CYR, and presents the following Complaint for

Declaratory and Injunctive Relief for Violations of the New Mexico Inspection of Public Records

Act, Sec. 14-2-1 and 14-2-4, et seq., NMSA, by Bill Richardson, the Governor of New Mexico,

stating as grounds therefore:

1. “Access to public records is one of the fundamental rights afforded to people in a

democracy. Even where there is no statute, a common law right to inspect and copy public

records affords members of the public the opportunity and ability to keep a watchful eye on

government.” Gary King, Inspection of Public Records Act Compliance Guide (6th Ed., 2009),

citing, Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978).

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 2. The People of New Mexico have “a fundamental right to have access to public

records. The citizen’s right to know is the rule and secrecy is the exception.” Compliance

Guide, at p. 1, citing State ex rel. Newsome v. Alarid, 90 N.M. 790, 795; 568 P.2d 1236 (1977).

3. The Governor of New Mexico is obligated to obey and enforce the laws and the

Constitution of New Mexico and the United States.

4. Plaintiff is an Albuquerque resident working as a self-employed, freelance

journalist.

5. On November 11, 2010, Mr. St. Cyr wrote to the Governor’s Deputy Chief of

Staff to make a formal written request for the right to inspect and copy:

All applications for Executive Clemency received in the past six months,
including applications for full pardons, commutation of sentences, conditional
releases, reprieves, pardons to restore civil rights and summary reports received
from the Probation and Parole Board.

6. In addition, Plaintiff requested “to inspect any and all letters attached to the

applications” and “all approved applications within the last 50 months.”

7. The Governor’s official records custodian, Marcia Maestas, acknowledged receipt

of Plaintiff’s inspection request and stated that:

On November 12, 2010, I received your request to inspect certain records.

Pursuant to the Inspection of Public Records Act, a response will be forthcoming
within 15 days of our receipt of your request.

8. On November 17, the records custodian wrote to Plaintiff stating that “We have

determined your request to be broad and burdensome. As such, we will need additional time to

respond to your request.”

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 9. When he had received no further response, on December 9, 2010, Mr. St. Cyr

wrote to Ms. Maestas stating that he “would like to come to the office next Wednesday – in

Santa Fe – to simply inspect any open applications that are pending.”

10. On December 14, 2010, Ms. Maestas wrote to Mr. St. Cyr, purporting to respond

“to your email of December 9, 2010, revising your previous request.” According to the

Governors’ records custodian:

We still believe that your request is burdensome and/or broad due to the fact that
many of our records have been boxed and prepared for archiving and retrieving
those documents responsive (sic) will take time.... Accordingly, pursuant to the
Inspection of Public Records Act, NMSA 1978, Sec. 14-23-10, we are entitled to
an additional reasonable period of time to respond to your request.

11. The same day, Mr. St. Cyr responded, pointing out that the records he was

requesting were the “pending” applications and repeating his request “to review any and all

applications (for clemency) presently under review in the Governor’s Office.

12. On Friday, December 17, 2010, Mr. St. Cyr’s attorney wrote to the Governor’s

records custodian seeking production of the requested records.

13. The Governor’s response, through his counsel, is that:

.. . . as stated quite clearly, the Governor’s Office continues to work on Mr. St.
Cyr’s December 9, 2010 IPRA request. It is, however, under no obligation to
provide the records requested on November 11, 2010, as that request was
superseded by Mr. St. Cyr’s new request of December 9, 2010.

A copy of the Governor’s response, through his counsel, is attached as EXHIBIT 1.

14. The letter of December 17, 2010, was the first indication to Mr. St. Cyr that the

Governor had deemed his November 11 inspection request “superseded” and therefore denied.

15. The request for inspection of public records submitted to the Governor’s Office by

Mr. St. Cyr on November 11, 2010, was neither overly broad or burdensome..

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 16. The request for inspection of public records submitted by Mr. St. Cyr on

December 9, 2010, sought immediate disclosure of records of applications for pardons and

clemency presently under consideration by the Governor. As records under active consideration

by the Governor, the limited request was neither overly broad or burdensome.

17. There was no valid reason to delay the inspection of most or all of the records

requested by Mr. St. Cyr on November 11, 2010, and December 9, 2010; absent any valid reason,

the Governor’s responses were due “immediately or as soon as practicable” and the failure to

promptly provide those records for inspection and copying constitutes violation of the New

Mexico Inspection of Public Records Act.

18. Plaintiff’s Affidavit in support of his Complaint is attached as EXHIBIT 2.

WHEREFORE, Plaintiff states the following causes of action:

COUNT I

VIOLATION OF THE INSPECTION OF PUBLIC RECORDS ACT

19. Each and every fact and allegation stated above is incorporated herein.

20. The IPRA provides that if the requested inspection of public records “is not

permitted within three business days, the custodian shall explain in writing when the records will

be available for inspection or when the public body will respond to the request.” Sec. 14-2-8(D).

Defendants failed to comply with the 3-day notification rule.

21. The IPRA also provides that “If a written request has been denied, the custodian

shall provide the requester with a written explanation of the denial. The written denial shall: . . .

(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.” Sec. 14-2-11(B). Defendants failed to comply with this provision.

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 22. Defendants have also violated the IPRA in the manner described in Count II and

Count III.

23. By their acts and omissions described above, and by failing to produce any records

in response to Plaintiff’s inspection request, Governor Richardson and his records custodian have

violated the New Mexico Inspection of Public Records Act, entitling Plaintiff to costs, fees, and

damages.

COUNT II

VIOLATION OF THE INSPECTION OF PUBLIC RECORDS ACT

(FALSE ASSERTIONS OF “BROADNESS” AND “BURDENSOMENESS”)

24. Each and every fact and allegation stated above is incorporated herein.

25. Defendant has repeatedly and falsely claimed that production of the requested

records would be burdensome and that the record request(s) are overly broad, thereby requiring

an extended time to respond and a delayed response.

26. In his response to Plaintiff’s inspection request, Governor Richardson claims that

even production of currently pending pardon and clemency records would be burdensome, and

that even that limited request is overly broad.

27. There is no factual or reasonable basis for Defendants’ contentions of

burdensomeness or broadness; Defendants do not suggest or identify any factual basis, nor does

such a basis exist for Defendants’ contentions.

28. By deliberately violating the Inspection of Public Records Act provisions and by

unreasonably delaying any meaningful response up to or after the end of the Richardson

administration, Governor Richardson and his records custodian have violated the letter and the

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intent of the State’s public records and open government law and Plaintiff is entitled to the award

of damages and injunctive and declaratory relief.

COUNT III

VIOLATION OF THE INSPECTION OF PUBLIC RECORDS ACT

(FAILURE TO DISCLOSE AVAILABLE PUBLIC RECORDS
“IMMEDIATELY OR AS SOON AS PRACTICABLE”)

29. Each and every fact and allegation stated above is incorporated herein.

30. Defendants had most or all of the requested records immediately available at the

time of their receipt of Plaintiff’s request for inspection.

31. The IPRA provides that “A custodian receiving a written 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.” Sec. 14-2-8(D) (underlining added).

32. Nonetheless, Defendants failed to allow access to the requested records either

“immediately” or “as soon as practicable” and instead unreasonably and unlawfully delayed or

denied Plaintiff’s access to the requested records.

33. Defendants have unreasonably assumed that the IPRA allows them an automatic

fifteen days to respond regardless of the circumstances and regardless of whether or not the

requested records are “immediately” available.

34. By delaying the response to Plaintiff’s record request rather than providing

immediate access, Governor Richardson and his records custodian have violated the New

Mexico Inspection of Public Records Act, entitling Plaintiff to costs, fees, and damages as

provided by law.

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 COUNT IV

COMMON LAW RIGHT TO INSPECT AND COPY PUBLIC RECORDS

35. Each and every fact and allegation stated above is incorporated herein.

36. Apart from the State Inspection of Public Records Act, Plaintiff has a common

law right to inspect and copy public records and a common law right to know about the

operations and activities of his State government.

37. Additionally, as a journalist, Mr. St. Cyr has a common law right to act as a

government watchdog in investigating and reporting about the operations and activities of the

government.

38. By delaying and denying Plaintiff’s request for inspection of active pardon and

clemency applications and supporting documents, Defendants have violated Plaintiff’s and the

Public’s rights to know and report about their government and its activities.

39. For violating Plaintiff’s common law rights, Defendants are liable for, and

Plaintiff is entitled to, equitable, legal, declaratory, and injunctive relief.

COUNT V

DECLARATORY JUDGMENT ACT

40. Each and every fact and allegation stated above is incorporated herein.

41. The New Mexico Declaratory Judgment Act, Sec. 44-6-1 to 44-6-15, NMSA,

permits the court “to settle and to afford relief from uncertainty and insecurity with respect to

rights, status and other legal relations, and is to be liberally construed and administered.” Sec.

44-6-14, NMSA.

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 42. As in this case, governmental records custodians are routinely claiming

entitlement to a 15-day “waiting period” for responding to inspection requests, are failing to

comply with the law’s 3-day notification requirements, and are making false “boiler-plate”

broadness and burdensomeness objections to disclosure, all to the detriment of the public and the

People’s right to know about their government and their elected and appointed officials.

43. Undecided issues concerning the application and enforcement of the Inspection of

Public Records Act are limiting the public’s right to know and the ability of the people to enforce

the law, making the judicial determination of these issues urgent and necessary.

COUNT VI

INJUNCTIVE RELIEF

44. Each and every fact and allegation stated above is incorporated herein.

45. The New Mexico IPRA provides that “(a)n action to enforce the IPRA may be

brought by ... a person whose written request has been denied” and “(B) A district court may

issue a writ of mandamus or order an injunction or other appropriate remedy to enforce the

provisions of the IPRA.” Sec. 14-2-12, NMSA.

46. Petitioner is a person who is beneficially interested, along with the public and

other journalists, in compelling the Governor to comply with his obligations under the Inspection

of Public Records Act.

47. There is no other plain, speedy, and adequate remedy in the ordinary course of law

and the Governor has a clear, mandatory, non-discretionary duty to comply with the law.

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 REQUEST FOR RELIEF

Plaintiff requests the following relief:

A. A Declaratory Judgment concerning the rights and obligations of parties as

requesters and responders to requests for inspection of public records in general and as to the

legal obligations of the Governor and his record custodian in particular.

B. Judgment in favor of Plaintiff on Defendants’ violation(s) of the Inspection of

Public Records Act.

C. An injunction or a Writ of Mandamus to enforce the provisions of the New

Mexico Inspection of Public Records Act.

D. Actual and statutory damages for violations of the Inspection of Public Records

Act.

E. Plaintiff’s costs and reasonable attorney’s fees as provided by law.

F. Such other and further relief as the Court deems just.

Respectfully submitted,

_________________________
Paul Livingston
Attorney for Plaintiff
P.O. Box 250
Placitas, N.M. 87043
(505) 771-4000
Fax: 771-2333

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SECOND JUDICIAL DISTRICT COURT
COUNTY OF BERNALILLO
STATE OF NEW MEXICO

PETER ST. CYR,

Plaintiff,

vs.

BILL RICHARDSON, Governor,

and MARCIA MAESTAS,
Records Custodian,

Defendants.

AFFIDAVIT IN SUPPORT OF CIVIL COMPLAINT

I, PETER ST. CYR, based on my personal knowledge, hereby state and affirm:

1. I am an Albuquerque resident who is presently self-employed as a freelance

journalist.

2. On November 11, 2010, I wrote to the Governor’s Deputy Chief of Staff to

make a formal written request for the right to inspect and copy applications for Executive

Clemency received in the prior six months, including applications for full pardons,

commutation of sentences, conditional releases, reprieves, pardons to restore civil rights

and summary reports received from the Probation and Parole Board.

3. In addition, I requested “to inspect any and all letters attached to the

applications” and “all approved applications within the last 50 months.”

 4. On November 17, 2010, I received acknowledgment by the Governor’s

records custodian, Marcia Maestas, that she had received my request to inspect records.

Rather than providing immediate access to requested records, she stated that “(p)ursuant

to the Inspection of Public Records Act, a response will be forthcoming within 15 days of

our receipt of your request.”

5. On November 29, Ms. Maestas wrote to me stating that “We have deter-

mined your request to be broad and burdensome. As such, we will need additional time to

respond to your request.”

6. On December 9, 2010, I again wrote to Ms. Maestas stating that I “would

like to come to the office next Wednesday – in Santa Fe – to simply inspect any open

applications that are pending.”

7. On December 14, 2010, Ms. Maestas wrote to me to respond “to your email

of December 9, 2010, revising your previous request.” According to the Governors’

records custodian:

We still believe that your request is burdensome and/or broad due to the fact
that many of our records have been boxed and prepared for archiving and
retrieving those documents responsive (sic) will take time.... Accordingly,
pursuant to the Inspection of Public Records Act, NMSA 1978, Sec. 14-23-
10, we are entitled to an additional reasonable period of time to respond to
your request.

8. When I received that I responded, pointing out that the limited records I was

requesting to see “next Wednesday” were the “pending” applications presently under

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review in the Governor’s Office. I did not intend to waive or nullify my previous request

for inspection of clemency application records.

9. I did not intend, anticipate, know, or agree to the Governor and his record

custodian’s unilateral cancellation or nullification of my November 11, 2010, request for

inspection of clemency applications and documents.

10. On Friday, December 17, 2010, my attorney wrote to the Governor’s

records custodian again asking for immediate production of the requested records.

11. The Governor’s response, through his counsel, was that:

.. . . as stated quite clearly, the Governor’s Office continues to work on Mr.

St. Cyr’s December 9, 2010 IPRA request. It is, however, under no obliga-
tion to provide the records requested on November 11, 2010, as that request
was superseded by Mr. St. Cyr’s new request of December 9, 2010.

12. The letter of December 17, 2010, was the first indication to me that the

Governor had deemed my November 11 inspection request “superseded” and that he had

thereby denied that request.

13. The request for inspection of public records submitted to the Governor’s

Office on November 11, 2010, was neither overly broad nor burdensome.

14. The e-mail I sent on December 9, 2010, was intended to secure belated (it

was by then almost a month since the November 11 inspection request) disclosure of

records of applications for pardons and clemency then actually and actively under

consideration by the Governor.

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 15. The records I requested included records that were under active consider-

ation by the Governor. There was no valid reason for the Governor of New Mexico to

delay or deny the inspection of most or all of the records requested by me on November

11, 2010, and December 9, 2010.

16. Absent any valid reason why not, the Governor’s responses were due

“immediately or as soon as practicable” and the failures to promptly provide those records

for inspection and copying constitute violations of the New Mexico Inspection of Public

Records Act.

17. The Governor and his records custodian have a mandatory, non-discretion-

ary duty to comply with the law without delay or evasion.

Respectfully submitted,

___________________________
Peter St. Cyr

COUNTY OF SANDOVAL )
) ss
STATE OF NEW MEXICO )

SWORN AND SUBSCRIBED to before me by Peter St. Cyr on December 23, 2010.

_______________________
NOTARY PUBLIC
My Commission Expires April 14, 2012

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