New Mexico Foundation for Open Government critical of Bosque Farms’ fees for public records

BOSQUE FARMS — A local municipality has been called out on social media by the state’s best known government watchdog group.

On Oct. 24, the New Mexico Foundation for Open Government chastised the village of Bosque Farms for what is says are illegal fees for public records.

“We told them two months ago that their fee policy is illegal. But they’re still displaying it loud and proud on their website,” reads the NMFOG post. “... fees can only be charged in specific situations, as outlined in the state Inspection of Public Records Act.”

The post goes on to explain records custodians are allowed to charge up to $1 per page for paper copies, the actual cost of a storage device, such as a thumb drive and postage if records are mailed to the requester.

The IPRA policy on the village’s website indicates documents are $1 per page, but FOG argues it doesn’t specify whether it’s for paper copies not digital pages. The village also indicates “archived documents” are $2 per page, which isn’t a classification of public records according to IPRA and FOG.

“IPRA doesn’t differentiate between ‘new’ and ‘archived’ — aka old — public records. Documents, like Dolly Parton, are ageless. You can’t charge more for a record just because it has life experience,” the post cheekily points out.

Additionally, the policy has a charge of $5 for police reports and $20 for audio/CD spies.

FOG’s post reiterated the rule of no more than $1 per page for physical copies and the allowance for “the actual cost of the computer disk or storage device” under IPRA.

“A CD in 2025 costs about 20 cents,” FOG notes.

The same day as the Facebook post, FOG filed a complaint with the New Mexico Department of Justice about the village’s fee policy.

“Fees have always been a bit of an issue,” said Christine Barber, executive director for NMFOG, in a telephone interview with the News-Bulletin. “There hasn’t been a lot of clarity and the law can seem unclear. However the (DOJ’s) office has given amazing commentary as part of its (IPRA) compliance guide. In the past, the fee issue has cropped up here and there but now we are seeing it constantly.”

Barber said FOG has numerous fee complaints from across the state.

“Bosque Farms was the first push to consistently say ‘No, no, no, no, no.’ That’s why we put it up on Facebook,” Barber said. “Just yesterday, we opened up the website for a state agency and there was a problem and another last week. The Fourth Judicial District Court is all over the place. Instead of sending every single one of those to DOJ to investigate, we are sending the most egregious ones over and sending letters to the rest and hoping they will comply.”

Bosque Farms Village Clerk/Administrator Erica Martinez, who was appointed to the position in early October, said the village does need to revisit its public records fees policy.

“We do need to update the website and the posting (of fees) in our front office. In researching this, I’ve found at least one ordinance with fees that are different from what’s on the website, so when and why these were assessed, I’m not sure,” Martinez said.

Martinez said she spoke to Bosque Farms Police Chief Andrew Owen about the $5 for police reports and the fee seems to be an attempt to save requesters money in some cases, she said.

“At a minimum, most reports are five pages, so whether it’s five pages or 20, it’s the same cost,” she said. “But we do need to revisit that.”

In regards to the $20 for a CD, the clerk said FOG was right about the cost.

“Most recently, most records requests have been for digital responses so we’ve been fulfilling most of them by email at no cost,” Martinez said. “We will have to correct the fee policy going forward.”

Barber said she didn’t think greed was the motivation behind the out-of-line fees for Bosque Farms and other agencies.

“I don’t think they are trying to get a ton of money for the department. That money goes into the pot for the government agency,” she said. “What we have been told, actually, is it has more with trying to deter people from asking for public records. The custodians doing that have seen a 30 percent, in some places a 50 percent, increase to records requests in the last two to three years.”

The driving force behind those sharp increases in requests is due to corporations and insurance companies, Barber said, not the general public.”

“I’m not going to throw custodians under the bus. The old way of handling (public records) is not working anymore and there needs to be solutions but this is absolutely not the solution. It’s illegal,” she said.

“The general public hasn’t increased requests but companies like Lexus Nexus and large legal groups are the biggest ones asking for this information. If you get in a car accident, on average there are eight different entities that are going to ask for the police reports. That records department has to reply to every one. It’s a lot. I get it, but this is not the solution.”

She said the city of Santa Fe found a solution to help with the deluge of requests for minor traffic crash reports by putting them online “then everyone can get them and the custodians don’t have to deal with eight different people.”

Barber said there are solutions for some common requests, such as software already offered by the New Mexico Department of Transportation that will allow an agency to put reports online. There’s also software that can guide requesters through an online portal and help them craft a clear, specific records request that can cut down on the need for the back and forth with a person and custodian to clarify a records request, she said.

In the FOG Facebook post, Barber also encouraged people who felt they had been overcharged by the village to request a refund.

“They are supposed to give you a receipt, and now you know you were charged illegally. I say go in and ask for a refund. Will they give it? Probably not but this will make them realize this has consequences,” she said. “For some people, getting $5 to get a copy of a police report is really, really hard.

“We work for the people, we work for the public. I have sympathy for the chaos the village is currently experiencing, but these polices were written long before the chaos in the office. They need to act in the best interest of the public and follow the law.”