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County Council Files Motion In Email Suit

on October 6, 2017 - 8:47am
Los Alamos Daily Post

Los Alamos County Council has filed a motion asking the First Judicial District Court to conduct an in camera in chambers review of Council Vice Chair Susan O’Leary’s emails held on her personal account from May 15 to determine if they are “public record” and subject to review under the New Mexico Inspection of Public Records Act (IPRA).

Los Alamos resident Lisa Brenner and her son, Patrick Brenner, filed a complaint for declaratory judgment ordering production of copies of emails sent or received May 15 by Council members. The suit accuses the Council and Designated Custodian of Records Barb Ricci of violating IPRA and asks the Court to issue a writ of mandamus requiring that the requested records be produced.

The motion, filed Sept. 26, states Council has not had the opportunity to review the documents, if any, that are in O’Leary’s possession and control. It states O’Leary takes the position that the documents are not subject to IPRA because they don’t relate to public business. It says she has withheld them from review by the Council to this point asserting she has a privacy interest and legitimate safety concerns related to the release of the documents.

In an effort to promptly solve these issues and at the request of and with the consent of O’Leary, the motion says the Council is seeking the in camera review and that O’Leary has agreed to produce the documents directly to the Court if the motion is granted. It states the Brenners have not responded to requests to consent with the motion so the Council assumes the motion is opposed.

The motion states that for the Council to make the determination, O’Leary would have to either grant access to her email account to a Los Alamos County official who would then decide if any of the emails qualified as “public record”, or, provide a County official with copies of all emails sent and received from her email account and the official would decide if any qualified as “public record”.

According to the motion, this means that the County could potentially see personal details about O’Leary or opinions she expresses in what she perceives as a purely personal capacity.

“She has a concern about overproduction, that is that if she grants access to her personal email account County officials may ‘overinclude’ and ‘overproduce’ what they consider public records in an effort to be transparent and limit litigation,” the motion states.

It adds that O’Leary expressed safety concerns about people named in her personal emails. It states Court intervention and in camera review would protect any possible privacy interests.

“It is a win-win for all parties. The plaintiff can be assured of a neutral examination by the Court, Los Alamos County Council can ensure prompt review of any possible documents, and Councilor O’Leary receives the appropriate attention to her personal concerns,” the motion states. “Finally, such a review would also be in the best interest of Court resources, moving this matter toward prompt resolution”.

Attached to the motion are a copy of an email Patrick Brenner sent to the Council May 15, which brought about this suit filed by the Brenners. It also includes a copy of a report written by attorney John B. Pound under contract to the County, which concludes what neither O’Leary or Councilor James Chrobocinski violated the Los Alamos County Council Code of Conduct during the April Recreation Bond Election. Pound’s report was the result of a complaint filed by Lisa Brenner with the Secretary of State Maggie Toulouse Oliver, which was later dismissed.

“Los Alamos County has now admitted that they have withheld public records about public business,” said attorney A. Blair Dunn who represents the Brenners. “They are now using taxpayer money (they are going to have to pay my fees and their attorney) to ask the judge to do their job for them.”