The Reporter's Records Request
A Santa Fe reporter emails the Board's records custodian on Monday, March 3, requesting: (1) all complaints filed against Dr. X since 2021; (2) the complete investigative file, including patient radiographs and chart notes; (3) the Board's closed-session minutes from February 14 concerning Dr. X; and (4) text messages between two Board members about Dr. X. The custodian has not responded by Friday, March 14. The Board's executive director wants to deny everything because "investigations are confidential" and to keep the February 14 discussion sealed because it involved legal advice. The file shows one complaint dismissed in 2022, one pending, and one that resulted in a 2023 consent agreement. The Board's attorney advises that some records may be protected but that a blanket denial is risky.
1. What are the custodian's procedural obligations under the Inspection of Public Records Act, and what happens if the deadline is missed?
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IPRA requires a public body to respond to a records request within three business days, either by producing responsive records or by explaining in writing why they are withheld. The three days may be extended by written notice if the request is broad or the records are in storage, but the extension must be communicated within the initial period.
Application. A Monday, March 3 request means the response is due by Thursday, March 6, absent a valid extension notice. No response by Friday, March 14 is well past the deadline. Silence is treated as a denial and can support a mandamus action and an award of damages and attorney fees in appropriate cases.
What the custodian should do now. Acknowledge the request in writing, apologize for the delay, state that the request is being processed, identify the records located, and either produce them with redactions or state the specific exemption for each withheld item. A blanket "investigations are confidential" is not an exemption; the custodian must cite the legal basis and explain how it applies. The custodian should also preserve the records, including the text messages and any metadata, pending resolution.
2. Which of the four categories should be produced, which may be withheld, and on what basis?
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1. Complaints. Complaints may be public records, but the Board must check whether the Dental Practice Act or a Board rule makes complaint intake confidential until a threshold determination. A dismissed complaint may be disclosable; a pending one may be withheld if a specific confidentiality provision applies. The custodian should not assume all complaints are secret.
2. Investigative file. Patient radiographs and chart notes are protected health information. They must be redacted to remove patient identifiers and any information protected by state or federal confidentiality law. The Board should release non-privileged, non-confidential portions and withhold the rest item by item with a citation.
3. Closed-session minutes. Minutes of a closed session are not automatically secret forever. The Open Meetings Act requires minutes, and the Board may withhold only the portion covered by a recognized exception, such as attorney-client advice or pending litigation. Final actions must be taken in open session and recorded.
4. Text messages. Messages about public business are public records regardless of the device used. Personal or purely social messages are not. The custodian should collect and review them and redact privileged or private content.
A privilege log or withholding index is the practical way to show good faith.
3. Was the February 14 closed session proper, and how should the Board handle the minutes?
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The Open Meetings Act permits a closed session only for specified purposes, including discussion of pending or threatened litigation and attorney-client advice, and only after the public body has voted in open session on whether to close. The motion should identify the exception. A closed session may not be used to make final decisions or to avoid public scrutiny of a disciplinary matter; final action must occur in open session.
Application. If the February 14 session was noticed, voted on, and limited to legal advice about Dr. X, it was likely proper. If the Board discussed the merits and decided the outcome behind closed doors, that is a violation. The minutes should record the vote, the citation to the exception, the time, and the general subject, without disclosing privileged advice.
Release. The Board should produce the minutes with any privileged advice redacted. It should not withhold the entire document because part is privileged. If the Board has been inconsistent about closing sessions, the safer course is to correct the practice prospectively and document the basis in the minutes.