Los Lunas Schools possibly violates Inspection of Public Records Act law

LOS LUNAS — Los Lunas Schools is facing allegations it violated the Inspection of Public Records Act concerning the deletion of text messages and noncompliance with deadlines.

IPRA is a New Mexico state law that provides the public open access to almost all public records in state and local government.

A letter drafted by Melanie Majors, the executive director of the New Mexico Foundation for Open Government, stated, “It is declared to be public policy of this state that ‘all persons are entitled to the greatest possible information regarding the affairs of government, and the official acts of those officers and employees who represent them,’ including the Los Lunas Schools.”

The letter addresses a complaint received by NMFOG from Los Lunas local Monique Dereta concerning what the organization believes to be multiple violations of IPRA.

Dereta, who is also one of two administrators of the Facebook group Los Lunas School District Parent Discussion Page, filed an IPRA request with LLS on March 30. She requested all text messages, from two separate time frames spanning a couple days, from five upper-level administrators — Brian Baca, Andrew Saiz, Natalie Saiz, Jason Baca and Alicia Himes — within the district.

“I witnessed during a live-streamed board meeting the deputy superintendent texting on his phone while the official board of education meeting was going on while someone was speaking at the podium. I felt it was inappropriate and disrespectful,” said Dereta. “I have it in good authority that other school administrators were also on their phones, so I wanted to see what was being discussed.”

The IPRA Compliance Guide states, “a custodian receiving a written request shall permit the inspection immediately or as soon as practical. If the inspection is not permitted within three business days, the custodian shall explain in writing when the records will be available for inspection.”

The three-day period for this request started on March 31. Four days later, on April 5, Dereta received an email from Baca, the LLS custodian of records, that said she would receive a response by April 14.

“On May 1, I sent an email informing them they were in violation of New Mexico IPRA law because I still had not heard back from anyone,” Dereta said.

On May 2, Dereta said she received a response from the district’s legal council, Roxie De Santiago.

“That’s where she clearly stated in her email, ‘at this time the Los Lunas Schools does not maintain records responsive to your request. It is the practice of the LLS and their employees to delete texts as received or very soon thereafter,’” said Dereta.

Majors outlined in her letter that text messages from public officials are considered public record, even if it is on their personal device.

“IPRA only mentions a few and very specific exceptions under select qualified circumstances where a record is not to be disclosed, and the legal system has made it clear that if a government official is using their own electronic device, and the public’s business is on that device, the record is subject to disclosure,” Majors wrote in the letter.

Majors also cited a 2019 New Mexico statutes chapter that states it’s illegal to knowingly destroy, conceal, mutilate or remove without lawful authority any public record or public document belonging to or received or kept by any public authority for information, record or pursuant to law.

Dereta said she responded to De Santiago asking when the immediate deletion of text messages became common practice and to provide a directive given to employees to do so as well as date.

“I’ve done a number of IPRA requests over the years, including requests to other state agencies and all have complied regarding text messages, and never have I received a response like that,” said Dereta.

Dereta said she received a final response on May 26 regarding her IPRA request from De Santiago, indicating the final response was LLS confirms again that it has no records connected to Dereta’s request.

Additionally, Dereta said De Santiago told her while she is cognizant of her position regarding text messages generally being public record, the individuals have no record responsive to Dereta’s records request.

According to Dereta, De Santiago further stated, “there are no responsive documents because none are maintained or held on behalf of the public body. In the absence of a policy, the requested text messages are not public record as defined in (the Inspection of Public Records Act.)’”

Dereta said De Santiago concluded the message by thanking her for bringing the matter to her attention as the district works through the process of updating its current policies and that she will bring it to leadership’s attention for consideration.

Dereta said she has filed a formal complaint with the New Mexico Attorney General’s Office but has yet to receive a determination. After receiving the final response from LLS, Dereta said she contacted NMFOG and that is how the letter from Majors came about.

“LLS Board policy does not address retention of text messages. In the absence of policy, employees do not have direction on retention of text messages,” said LLS media liaison Sidney Olivas.

“It doesn’t show transparency to stakeholders. They are a government entity funded with public money, and they are required to be transparent,” said Dereta. “I feel it supports the appearance of impropriety.”