HB0497

HOUSE BILL 497

57th legislature - STATE OF NEW MEXICO - first session, 2025

INTRODUCED BY

Cathrynn N. Brown

AN ACT

RELATING TO PUBLIC RECORDS; REVISING THE INSPECTION OF PUBLIC RECORDS ACT; PROVIDING EXEMPTIONS FROM INSPECTION; REVISING DEADLINES; DESIGNATING ADDITIONAL RECORDS AS LAW ENFORCEMENT RECORDS; PROVIDING ADDITIONAL DEFINITIONS; REVISING THE PROCEDURES FOR REQUESTING AND DENYING REQUESTS FOR PUBLIC RECORDS; REVISING PROVISIONS RELATED TO ENFORCEMENT.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. Section 14-2-1 NMSA 1978 (being Laws 1947, Chapter 130, Section 1, as amended) is amended to read:

"14-2-1. RIGHT TO INSPECT PUBLIC RECORDS--EXCEPTIONS.-- Every person has a right to inspect public records of this state except:

A. [records pertaining to physical or mental examinations and medical treatment of persons confined to an institution] medical records;

B. letters of reference concerning employment, licensing, [or] permits or procurement;

C. letters or memoranda that are matters of opinion in personnel files or students' cumulative files, including the reports, notes and evidence generated by internal investigations of personnel or students;

D. portions of law enforcement records as provided in Section 14-2-1.2 NMSA 1978;

E. as provided by the Confidential Materials Act;

F. trade secrets;

G. attorney-client privileged information;

H. long-range or strategic business plans of public hospitals discussed in a properly closed meeting;

I. tactical response plans or procedures prepared for or by the state or a political subdivision of the state, the publication of which could reveal specific vulnerabilities, risk assessments or tactical emergency security procedures that could be used to facilitate the planning or execution of a terrorist attack;

J. information concerning information technology systems, the publication of which would reveal specific vulnerabilities that compromise or allow unlawful access to such systems; provided that this subsection shall not be used to restrict requests for:

(1) records stored or transmitted using information technology systems;

(2) internal and external audits of information technology systems, except for those portions that would reveal ongoing vulnerabilities that compromise or allow unlawful access to such systems; or

(3) information to authenticate or validate records received pursuant to a request fulfilled pursuant to the Inspection of Public Records Act;

K. submissions in response to a competitive grant, land lease or scholarship and related scoring materials and evaluation reports until finalists are publicly named or the award is announced; [and]

L. a person's personal email address or personal telephone number that is provided to a public body for the purpose of communications with the public body or in connection with the person's application for a permit or license; provided, however, that the person's identity shall not be withheld;

M. security system records of a public body's facility, the disclosure of which would reveal information that could be used to plan or execute an attack on a public facility or a person;

N. records that relate to cybersecurity information or critical infrastructure, the disclosure of which could expose the related systems to vulnerabilities or could jeopardize the safety of critical infrastructure systems;

O. a public body's security system plan and records regarding: disaster mitigation, preparation, response, vulnerability or recovery; and cybersecurity planning or threat mitigation;

P. security codes, passwords and lock combinations or plans used to protect a public body's electronic information or to prevent improper access to the public body's computers, computer systems and computer and telecommunications networks;

Q. when a public body seeks to acquire real property by purchase or through the exercise of the power of eminent domain, all appraisals and reports relating to value, offers and counteroffers on the real property until a valid option contract has been executed or a written offer to sell has been conditionally accepted by the public body, at which time this exception to inspection shall expire;

R. records submitted to a public body by a bidder on a public contract that relate to the financial stability of the bidder, including tax returns, financial statements and bank statements;

S. before a contract is awarded, materials submitted in response to a sealed bidding or request for proposals issued by a public body;

T. customer records for utility services provided by a public body, including the customer's billing statements, records of consumption or usage, payment information or methods and the contents of any customer communications made in connection with the customer's utility services;

U. records that may disclose or lead to the discovery of the identity of a person who made a report of alleged abuse, neglect or exploitation of a child or of a protected adult as defined in Section 27-7-16 NMSA 1978;

V. records concerning an individual applicant for or recipient of unemployment insurance or economic assistance or support, including applications, income or eligibility verification, assessments and other personal medical or financial data related to the insurance, assistance or support;

W. with respect to a request for records received from a person who has been convicted of an indictable offense under the laws of this state, another state or the United States and that relates to the victim of the offense for which the person was convicted, personal information pertaining to the crime victim or the victim's family, including the victim's home address, home telephone number, personal telephone number, work or school address and telephone number, social security number, medical history or any other identifying information; and

[L.] X. as otherwise provided by law."

SECTION 2. Section 14-2-1.2 NMSA 1978 (being Laws 2023, Chapter 67, Section 3) is amended to read:

"14-2-1.2. LAW ENFORCEMENT RECORDS.--

A. Law enforcement records are public records, except as provided by law and this [subsection, and provided that the presence of nonpublic information may be redacted from a written record or digitally obscured in a visual or audio record, including: (1) before charges are filed] section.

B. If a law enforcement agency becomes aware of a crime to which a request for law enforcement records relates, the time for responding to that request for law enforcement records is tolled for forty-five days immediately following the day on which the law enforcement agency becomes aware of the crime.

C. Exempt from inspection are the names, addresses, contact information, [or] protected personal identifier information, and other identifying information of individuals who are victims of or non-law-enforcement witnesses to an alleged crime of:

[(a)] (1) assault with intent to commit a violent felony pursuant to Section 30-3-3 NMSA 1978 when the violent felony is criminal sexual penetration;

[(b)] (2) assault against a household member with intent to commit a violent felony pursuant to Section 30-3-14 NMSA 1978 when the violent felony is criminal sexual penetration;

[(c)] (3) stalking pursuant to Section 30-3A-3 NMSA 1978;

[(d)] (4) aggravated stalking pursuant to Section 30-3A-3.1 NMSA 1978;

[(e)] (5) criminal sexual penetration pursuant to Section 30-9-11 NMSA 1978;

[(f)] (6) criminal sexual contact pursuant to Section 30-9-12 NMSA 1978; [or

(g)] (7) sexual exploitation of children pursuant to Section 30-6A-3 NMSA 1978;

(8) kidnapping pursuant to Section 30-4-1 NMSA 1978;

(9) abandonment of a child pursuant to Section 30-6-1 NMSA 1978;

(10) abuse of a child pursuant to Section 30-6-1 NMSA 1978;

(11) abandonment of a dependent pursuant to Section 30-6-2 NMSA 1978;

(12) enticement of child pursuant to Section 30-9-1 NMSA 1978;

(13) voyeurism pursuant to Section 30-9-20 NMSA 1978;

(14) incest pursuant to Section 30-10-3 NMSA 1978;

(15) child solicitation by electronic communication device pursuant to Section 30-37-3.2 NMSA 1978;

(16) criminal sexual communication with a child pursuant to Section 30-37-3.3 NMSA 1978;

(17) unauthorized distribution of sensitive images pursuant to Section 30-37A-1 NMSA 1978;

(18) abuse pursuant to the Resident Abuse and Neglect Act; and

(19) human trafficking pursuant to Section 30-52-1 NMSA 1978.

[(2)] D. Before charges are filed, exempt from inspection are names, addresses, contact information or protected personal identifier information of individuals who are accused but not charged with a crime.

[(3)] E. Exempt from inspection are the name, address, contact information, protected personal identifier information and other identifying information of a juvenile and of the juvenile's parent or guardian, when the juvenile is a victim of or witness to a crime or an alleged crime.

F. Any information that would identify or provide a means of identifying a confidential informant of a law enforcement officer or prosecutor, if the identity of the informant is not otherwise publicly known, is exempt from inspection.

G. The work schedule of an employee of a law enforcement agency or correctional facility is exempt from inspection.

H. Records and other information that would reveal the identity or endanger the life or safety of an undercover law enforcement officer are exempt from inspection.

I. Audio recordings, video recordings and images taken with a law enforcement officer's body-worn camera or similar device, if the recordings or images are taken in a private place, are exempt from inspection, except for recordings, images or records that:

(1) depict the commission of an alleged crime;

(2) record an encounter between a law enforcement officer and a person that results in the death or bodily injury of a person, or includes or captures a law enforcement officer firing or discharging a weapon; or

(3) record an encounter that is the subject of a current legal proceeding against a law enforcement officer or law enforcement agency.

J. Visual depiction of a dead body, unless a law enforcement officer, acting in that capacity, caused or is reasonably alleged or suspected to have caused the death is exempt from inspection.

[(4)] K. Visual depiction of great bodily harm, as defined in Section 30-1-12 NMSA 1978, or acts of severe violence resulting in great bodily harm, unless a law enforcement officer, acting in that capacity, caused or is reasonably alleged or suspected to have caused the great bodily harm or act of severe violence is exempt from inspection.

[(5)] L. Visual depiction of an individual's intimate body parts, including the genitals, pubic area, anus or postpubescent female nipple, whether nude or visible through less than opaque clothing is exempt from inspection.

[(6)] M. Visual or audio depiction of the notification to a member of the public of a family member's death is exempt from inspection.

[(7)] N. Confidential sources, methods or information are exempt from inspection. [or

(8)] O. Exempt from inspection are records pertaining to physical or mental examination and medical treatment of persons unless the information could be relevant to a criminal investigation or an investigation of misfeasance, malfeasance or other suspected violation of law conducted by a person elected to or employed by a public body.

[B.] P. A request for release of video or audio shall specify at least one of the following:

(1) the computer-aided dispatch record number;

(2) the police report number;

(3) the date or date range with reasonable specificity and at least one of the following:

(a) the name of a law enforcement officer or first responder;

(b) the approximate time; or

(4) other criteria established and published by a law enforcement agency to facilitate access to videos.

[C.] Q. Except for confidential sources, methods or information, a request to view video or hear audio on-site of a public body is not subject to the restrictions in Subsections A and B of this section. Any recording or copying of video or audio from such viewing or listening is subject to the restrictions in this section.

[D.] R. As used in this section, "law enforcement records" includes evidence in any form received or compiled in connection with a criminal investigation or prosecution by a law enforcement or prosecuting agency, including inactive matters or closed investigations to the extent that they contain the information listed in this subsection; provided that the presence of such information on a law enforcement record does not exempt the record from inspection.]"

SECTION 3. Section 14-2-6 NMSA 1978 (being Laws 1993, Chapter 258, Section 3, as amended) is amended to read:

"14-2-6. DEFINITIONS.--As used in the Inspection of Public Records Act:

A. "broad or burdensome" means a request that requires a public body to spend more than three hours to locate the public record and redact information exempt from inspection;

B. "critical infrastructure" means public buildings; systems, including telecommunications centers and computers; power generation plants, dams, bridges and similar resources; systems related to utility services, fuel supply, energy, hazardous liquid, natural gas or coal, whether physical or virtual; such that the incapacity or destruction of the infrastructure would have a debilitating impact on security, economic security, public health or safety;

C. "current records" means public records that were created or received by a public body within the twelve months preceding receipt of a request to inspect the records, but does not include archival records;

[A.] D. "custodian" means any person responsible for the maintenance, care or keeping of a public body's public records, regardless of whether the records are in that person's actual physical custody and control;

E. "cybersecurity information" means information related to acts, practices or systems that eliminate or reduce the risk of loss of critical assets, loss of sensitive information or reputational harm as a result of a cyber attack or breach within an organization's network;

[B.] F. "file format" means the internal structure of an electronic file that defines the way it is stored and used;

G. "good faith" means:

(1) when conducting a search in response to a request for inspection, making reasonable efforts to determine from a public body's officials or employees whether a requested record exists and, if it does, how the record can be inspected; and

(2) when denying inspection, reasonably relying on statutes, decisions of a court, advice of counsel, guidance issued by the attorney general and public policy;

[C.] H. "information technology systems" means computer hardware, storage media, networking equipment, physical devices, infrastructure, processes and code, firmware, software and ancillary products and services, including:

(1) systems design and analysis;

(2) development or modification of hardware or solutions used to create, process, store, secure or exchange electronic data;

(3) information storage and retrieval systems;

(4) voice, radio, video and data communication systems;

(5) network, hosting and cloud-based systems;

(6) simulation and testing;

(7) interactions between a user and an

information system; and

(8) user and system credentials;

[D.] I. "inspect" means to review all public records that are not excluded in Section 14-2-1 NMSA 1978 or as otherwise provided by law;

J. "law enforcement records" means evidence, in any form, received or compiled in connection with a criminal investigation or prosecution by a law enforcement or prosecuting agency, including inactive matters or closed investigations to the extent that the records contain the information described in Section 14-2-1.2 NMSA 1978; provided, however, that the presence of such information on a law enforcement record does not exempt the record from inspection;

K. "medical records" means any information, whether oral or recorded in any form or medium, related to the past, present or future physical or mental health or condition of an individual; the provision of health care to an individual; or past, present or future payment for the provision of health care to an individual;

[E.] L. "person" means any individual, corporation, partnership, firm, association, [or] entity or public body domiciled in New Mexico, but does not include an individual incarcerated in a correctional facility;

M. "private place" means the interior of a residence, the interior of a facility that offers health care, or social services or another interior place that is not open to members of the public and inside of which a person has a reasonable expectation of privacy;

[F.] N. "protected personal identifier information" means:

[(1) all but the last four digits of a:

(a)] (1) a taxpayer identification number;

[(b)] (2) a financial account number;

[(c)] (3) a credit or debit card number; [or

(d)] (4) a driver's license number;

[(2) all but the year of] (5) a person's date of birth;

[(3)] (6) a social security number; and

[(4)] (7) with regard to a nonelected employee of a public body in the context of the person's employment:

(a) the employee's nonbusiness home street address [but not the city, state or zip code];

(b) the employee's home telephone number or personal cellular phone number;

(d) the employee's payroll deduction information; and

(e) the name, address, telephone number and contact information of any dependent or emergency contact of the employee;

[G.] O. "public body" means the executive, legislative and judicial branches of state and local governments and all advisory boards, commissions, committees, agencies or entities created by the constitution or any branch of government that receives any public funding, including political subdivisions, special taxing districts, school districts and institutions of higher education;

[H.] P. "public records" means all documents, papers, letters, books, maps, tapes, photographs, recordings and other materials, regardless of physical form or characteristics, that are used, created, received, maintained or held by or on behalf of any public body and relate to public business, whether or not the records are required by law to be created or maintained; [and]

Q. "reasonable denial", with respect to a denied request to inspect public records, is one that provides:

(1) a reason supported by the Inspection of Public Records Act; another state, federal, or local law or rule; or a ruling or decision of a court or a court order to justify why a record is exempt from inspection, regardless of whether a precise legal citation is provided; or

(2) a reasonable justification, based on a public policy, for refusing to release the records;

R. "reasonable particularity" does not include a request that seeks records by identifying search terms or parameters that a public body does not use to index, organize, file or record its records or that cannot be used to search those records, but does mean to identify specific records by:

(1) in the case of records other than audio or visual records, providing at least two of the following:

(a) the record title or subject line;

(b) the author; or

(2) in the case of audio or visual records, providing at least one of the following:

(a) the computer-aided dispatch record number;

(b) the police report number; or

(c) the applicable date or date range with reasonable specificity and at least one of the following: 1) the name of a law enforcement officer or first responder; 2) the approximate time or the approximate location; or 3) other criteria established and published by a public body to facilitate access to videos;

[I.] S. "trade secret" means trade secret as defined in Subsection D of Section 57-3A-2 NMSA 1978; and

T. "utility services" means those services, when performed by a public body, that would constitute a public utility as defined by Section 62-3-3 NMSA 1978, a public telecommunications service as defined by Section 63-9A-3 NMSA 1978 or a cellular service company as defined by Section 63-9B-3 NMSA 1978, and includes services provided by associations as defined under the Sanitary Projects Act."

SECTION 4. Section 14-2-8 NMSA 1978 (being Laws 1993, Chapter 258, Section 5, as amended) is amended to read:

"14-2-8. PROCEDURE FOR REQUESTING RECORDS.--

A. Any person wishing to inspect public records [may] shall submit [an oral or] a written request to the custodian. [However, the procedures set forth in this section shall be in response to a written request.] The failure to respond to an oral request shall not subject the custodian to any penalty.

B. If a request is sent to a person other than the appropriate custodian, the time for fulfilling the request shall be tolled until the request is delivered to the appropriate records custodian. All employees or agents of public bodies shall promptly forward to the appropriate custodian any requests misdirected to the employee or agent.

[B.] C. Nothing in the Inspection of Public Records Act shall be construed to require a public body to:

(1) create or maintain a public record;

(2) compile, format, manipulate, package, summarize or tailor information in response to a request;

(3) provide a record in a particular format or medium not currently maintained by the public body;

(4) provide a record that is included in a report or document that is printed or published, including a document that is available on the internet; or

(5) answer questions, conduct research, provide advice or issue legal opinions.

[C.] D. A [written] request shall provide the actual name, mailing address, [and] telephone number and email address of the person seeking access to the records [and]. Anonymous or pseudonymous requests shall not be submitted and a public body shall not be required to respond to such requests. If a request is made by an agent for another person, the agent shall disclose the name of the person on whose behalf the agent is acting.

E. A request shall identify the records sought with reasonable particularity.

F. No person requesting records shall be required to state the reason for inspecting the records.

[D.] G. 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] twenty-one business days after receiving a written request in the case of current records or sixty business days in the case of records that are not current records or are audio or visual records. If the inspection 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. The three-day period shall not begin until the written request is delivered to the office of the custodian. A request submitted outside of the public body's business hours shall be considered submitted during the business day following submission of the request, for purposes of calculating deadlines.

[E.] H. In the event that a written 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. 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.

[F.] I. For the purposes of this section, "written request" includes an electronic communication, including email or facsimile or a communication using an internet process that is provided by the public body; provided that the request complies with the requirements of Subsection [C] D of this section.

J. A public body may ask a requester to clarify a request.

K. A public body may discuss with a requester of a large volume of records how the scope of a request may be narrowed.

L. With regard to electronic records:

(1) nothing in this section requires a public body to attempt to recover or restore deleted or overwritten records; and

(2) nothing in this section requires a public body to provide inspection of browser histories, caches, cookies, file metadata, system logs, login histories or internet protocol addresses of visitors to the public body's websites.

M. The time limits for a public body to allow a person to inspect records relating to elections shall be tolled during the period beginning on the fifty-sixth day prior to an election until the canvass of the election has been certified by the county canvassing board or state canvassing board, whichever is later."

SECTION 5. Section 14-2-9 NMSA 1978 (being Laws 1993, Chapter 258, Section 6, as amended) 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, and the nonexempt information shall 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. Exempt information in an electronic document shall be removed along with the corresponding metadata prior to disclosure by utilizing methods or redaction tools that prevent the recovery of exempt information from a redacted electronic document.

B. A custodian shall provide a copy of a public record in electronic format if the public record is available in electronic format and an electronic copy is specifically requested. However, a custodian is only required to provide the electronic record in the file format in which it exists at the time of the request.

C. 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)] two dollars ($2.00) per printed page for documents eleven inches by seventeen inches in size or smaller;

(3) may charge the actual costs associated with downloading copies of public records to a computer disk or storage device, including the actual cost of the computer disk or storage device;

(4) may charge the actual costs associated with transmitting copies of public records by mail, electronic mail or facsimile;

(5) may charge a fee not exceeding thirty dollars ($30.00) per hour per request, excluding the initial three hours, for the time required to locate and redact records;

(6) may, if a person makes five or more requests within a forty-five-day period, treat the requests as one request in computing the time for labor charges;

[(5)] (7) may require advance payment of the fees before searching for, redacting or making copies of public records;

[(6) shall not charge a fee for the cost of determining whether any public record is subject to disclosure; and]

(8) may allow a person to use the person's own personal devices for duplication of records and shall establish reasonable procedures to protect the integrity of the records; provided that the procedures are not used to prevent access to the records;

(9) may decline to provide an opportunity to inspect a record to a person who has already inspected that same record; and

[(7)] (10) shall provide a receipt, upon request.

D. Nothing in this section regarding the provision of public data in electronic format shall limit the ability of the custodian to engage in the sale of data as authorized by Sections 14-3-15.1 and 14-3-18 NMSA 1978, including imposing reasonable restrictions on the use of the database and the payment of a royalty or other consideration."

SECTION 6. 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 request has been determined to be excessively burdensome or broad, a written request for inspection of public records that has not been [permitted] acted upon within [fifteen] twenty-one business 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 after providing the public body from which the public record was requested with written notice of the claimed violation. Once the public body has received the written notice, the public body shall have twenty-one calendar days to respond to the written notice and twenty-one calendar days to remedy the violation. After the two twenty-one-calendar-day periods have elapsed, the public body shall be subject to enforcement as provided in Section 14-2-12 NMSA 1978.

B. If a written request has been denied, the custodian shall provide the requester with a written 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 business days after the request for inspection was received.

C. A custodian who does not deliver or mail a written explanation of denial within [fifteen] twenty-one business 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] may:

(1) be awarded if the failure to provide a timely explanation of denial is determined to be unreasonable;

(2) be awarded in an amount that does not exceed one hundred dollars ($100) per business day; and

(3) accrue from the twenty-first business day following the day the public body [is in noncompliance] received the written notice of a claimed violation until a written denial is issued [and

(4) be payable from the funds of the public body]."

SECTION 7. Section 14-2-12 NMSA 1978 (being Laws 1993, Chapter 258, Section 9) is amended to read:

"14-2-12. ENFORCEMENT.--

A. After a public body has received written notice of a claimed violation of the Inspection of Public Records Act and has failed to respond within twenty-one business days, an action to enforce the Inspection of Public Records Act may be brought by:

(1) the attorney general or the district attorney in the county of jurisdiction; or

(2) a person whose written request has been denied.

B. Actions to enforce the Inspection of Public Records Act shall be brought exclusively against the public body in the district court in the county where the public body maintains its principal office. No records custodian or other employee or official of the public body may be named as a defendant.

C. Any public body named in an action filed pursuant to the Inspection of Public Records Act shall be held liable for conduct of individuals acting on behalf of, under color of or within the course and scope of the authority of the public body.

D. Actions to enforce the Inspection of Public Records Act shall be exclusively brought as a civil action and proceed under the rules of court for civil complaints. The district court shall not issue peremptory writs of mandamus or alternate writs of mandamus under Section 44-2-7 NMSA 1978.

[B.] E. A district court may issue a writ of mandamus or order an injunction or other appropriate remedy to enforce the provisions of the Inspection of Public Records Act, [C. The] but only after:

(1) the public body has been served with a summons and a complaint;

(2) the public body has given due process in accordance with the rules of civil procedure; and

(3) the court has found that the public body failed to produce records in violation of that act.

F. Except for the written notice of a claimed violation as provided in Section 14-2-11 NMSA 1978, exhaustion of administrative remedies shall not be required prior to bringing any action to enforce the procedures of the Inspection of Public Records Act.

[D.] G. The court [shall] may award damages, costs [and] or reasonable [attorneys'] attorney fees to any person whose written request has been denied and who is successful in a court action to enforce the provisions of the Inspection of Public Records Act, but only in cases where the public body did not act in good faith or failed to provide a reasonable denial."

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