SECOND JUDICIAL DISTRICT COURT

COUNTY OF BERNALILLO
STATE OF NEW MEXICO

MUNAH GREEN,
Plaintiff,
v.

D-202-CV-2015-005680

CITY OF ALBUQUERQUE,
Defendant.
DEFENDANTS CLOSING ARGUMENT AND PROPOSED FINDINGS OF FACT AND
CONCLUSIONS OF LAW
COMES NOW, Defendant, City of Albuquerque (the City), by and through counsel,
Kevin Morrow, and submits the following proposed findings of fact and conclusions of law
relating to the trial heard by this court on November 20, 2015:
ARGUMENT
The Citys email on June 11, 2015 constituted a valid denial.
On June 11, 2015, the Albuquerque Police Department replied to an email from Plaintiff
with a message that stated there were no responsive documents because there was an active and
ongoing police investigation and cited the law enforcement exception, 14-2-1(A)(4). The
documents originally requested by the Plaintiff were included in a previous message. There was
no confusion about the documents that were being denied. The signature line of the email
response was Javier Urban, records custodian of the Albuquerque Police Department and the
man responsible for the denial (see Plaintiffs exhibit 2). Prior to the denial, there were two
previous responses from APD. The first email acknowledged the request (see Plaintiffs exhibit
3). The second email explained was delivered on April 27, 2015, 14 days after the original

request, (see Plaintiffs exhibit 4) and appropriately cited NMSA 1978 14-2-10 the procedure
for broad and burdensome requests. A nine point request for approximately five years of
documents from multiple units constitutes a broad and burdensome request. These responses all
comport with the procedure for responses to the Inspection of Public Records Act. Therefore the
email sent by the APD IPRA unit was a lawful and valid denial.
The City properly denied Plaintiffs IPRA request.
The release of the documents requested by Plaintiff could jeopardize the investigation of
an incident where seven people were shot. Detective Juarez testified about the chaotic scene of
the shooting. She testified that more than 50 people were present at the park the date of the
incident and that many remain unidentified. Additionally, she explained that her investigation
remains incomplete. While she has met with the District Attorneys office, she has not finished
nor turned over a completed sup-out, or finished investigation. Final charging decisions have not
been made in the matter and no one has been indicted. Most importantly, Detective Juarez, as
the case agent, testified about the large number of crimes that occurred that evening and how the
release of confidential information could corrupt the information provided by witnesses to those
crimes. She testified that even the release of select still photos resulted in a witness altering her
previous version of the nights events to comport with what a photo contained. The second
version of the witnesses story was demonstrably false but reflected one of the still images
released.
Detective Juarezs supervisor, Homicide Sergeant Elizabeth Thomson, testified that
police reports, Computer Aided Dispatch printouts (CAD), 911 audio, lapel videos, audio
recordings and captured cell phone videos contain confidential sources, information and
names of witnesses, victims and suspects. IPRA specifically provides that such information is
exempt from release.
2

The exception exists for good reason as much of the information constitutes evidence or provides
confidential information, the release of which could jeopardize the safety and cooperation of
witnesses. It can also alter the stories told by witnesses as the release of information can taint
their own independent recollection of events.
Additionally, no log-in list or roster existed for the date in question. Sergeant Thomson
did create a list of officers who were on scene but did so of her own volition the day before trial.
NMSA 1978, 14-2-8(B) states that nothing in the Inspection of Public Records Act shall be
construed to require a public body to create a public record. There was no obligation for the
Albuquerque Police Department to create that record earlier or in response to Plaintiffs or any
other record request.
The City did not waive the law enforcement exemption under IPRA.
The Albuquerque Police Department did have a press conference where 13 still shots of a
cell phone video were released. Sergeant Thomson testified that the photos were released in an
effort to identify some of the many people at the scene on March 22, 2015. The photos were
deliberately chosen because they provided clear images of the faces of several people and did not
jeopardize the investigation. The select release of information cannot be a waiver of the law
enforcement exemption because IPRA provides that information can be selectively redacted. In
this case, it was determined that the release of the photos would not reveal confidential sources
or information and would assist in identifying additional witnesses and obtaining interviews
from them and gathering any other evidence, including additional cell phone videos and weapons
involved in the incident.
Showing the cell phone video, the Citys Exhibit A, to Plaintiff Munah Green and a few
select other people did not make the video a public record. The video was shown to these select

people as part of the police investigation. It was shown to people that detectives believed could
identify some of the unknown witnesses at the park on the date of incident. Those that were
shown the video were told in advance that they would not receive a copy. The viewing was part
of a police investigation and broader disclosure of the video could endanger witnesses and
jeopardize the investigation. Specifically, if the video were released at this time, the viewing
could taint the recollection of witnesses who have not been interviewed, which could
compromise future criminal proceedings with regard to impeachment of both prosecution and
defense witnesses.
It would vitiate the purpose of the Inspection of Public Records Act law enforcement
exception, if the release of any information required the release of all information. The Plaintiff
invites the Court to second guess the law enforcement exception invoked by lead Detective Terra
Juarez and her supervisor, Sgt. Elizabeth Thompson. Such a result would encourage all police
investigations be conducted in absolute secrecy without any public disclosure or requests for
public assistance in a secure environment. Such a conclusion would invalidate the purpose of the
Inspection of Public Records Act by severely curtailing the limited and appropriate public
disclosure of information and would jeopardize public safety by making criminal investigations
more difficult by taking away the discretion of law enforcement officers to disclose evidence at
the appropriate points in time during a criminal investigation.
PROPOSED FINDINGS OF FACT:
1. A trial on the merits of this civil action was heard by the Honorable Judge Victor Lopez
on November 20, 2015.
2. On March 22, 2015, seven people were shot in a chaotic incident at the Los Altos Park in
Albuquerque, New Mexico.

3. Plaintiff presented testimony from two witnesses: Ms. Munah Green, the Plaintiff, and
Mr. Reynaldo Chavez, former Albuquerque Police Department Records Custodian.
4. Defendant presented testimony from three witnesses: Albuquerque Police Department
(APD) Records Custodian, Javier Urban; Case Agent in charge of the Los Altos
investigation, APD Detective Terra Juarez; and APD Homicide Sergeant Elizabeth
Thomson.
5. Plaintiff submitted an email request pursuant to the Inspection of Public Records Act on
Friday, April 10, 2015 at 4:52 p.m.
6. The Albuquerque Police Department IPRA unit operated from 8:00 a.m.to 4:30 p.m. on
April 10, 2015.
7. The request was received and acknowledged the following business day on Monday,
April 13, 2015.
8. The request consisted of nine delineated components.
9. On April 27, 2015, then Albuquerque Police Department custodian, Reynaldo Chavez,
requested additional time to process the request pursuant to NMSA 1978 14-2-10, the
Procedure for Excessively Burdensome or Broad Requests.
10. On April 28, 2015, APD placed Mr. Chavez on administrative leave from which he was
ultimately terminated. Mr. Chavez had no further involvement with the Citys response
in this matter after April 28, 2015.
11. On May 8, 2015, the APD held a press conference and released 13 highly selective screen
shots from a cell phone video taken at the Los Altos Skate Park on March 22, 2015. The
photos were released in anticipation of identifying more witnesses or suspects to be
interviewed or otherwise investigated.

12. On or before June 11, 2015, Homicide Sergeant Elizabeth Thomson told the new APD
records custodian, Javier Urban, that the release of the cell phone video and other
documents related to the Los Altos shooting could hinder the active and ongoing criminal
investigation.
13. After consultation with Sgt. Thomson and the City of Albuquerque legal department, Mr.
Urban instructed Diane Roberts of the Albuquerque Police Departments IPRA unit to
send a denial of the IPRA request citing 14-2-1(A)(4), commonly known as the law
enforcement exception.
14. On June 11, 2015, Ms. Roberts sent a denial email, writing that there were no responsive
documents because it was an active and ongoing investigation and cited 14-2-1(A)(4), the
law enforcement exception. See, the Citys Exhibit B.
15. A list of officers names did not exist at the time of the request except as Computer Aided
Dispatches, which included confidential information related to the investigation.
16. On November 19, 2015, Sgt. Thomson created a document listing the names of officers,
but not their rank, dispatched to the Los Altos Park on the date of incident.
17. NMSA 1978 14-2-8(B) explicitly states that, nothing in the Inspection of Public Records
Act shall be construed to require a public body to create a public record.
18. On November 18, 2015, the City of Albuquerque provided any and all documents related
to police service and any all police reports involving Los Altos Skate Park from 2010 to
present, numbers 7 and 8 on the Plaintiffs IPRA request. The same day, the City alerted
Plaintiffs counsel that some records related to the incident dated March 22, 2015 were
inadvertently released and should be returned until future determination of APD or the

Court. Only those documents unrelated to the ongoing investigation of the incident dated
March 22, 2015 should be deemed exempt from disclosure.
19. On November 19, 2015, the City of Albuquerque emailed a 20 page list of 911 calls from
January 1, 2010 to April 13, 2015 relating to the Los Altos Skate Park to Plaintiffs
counsel fulfilling number 9 on the Plaintiffs IPRA request.
20. The District Attorney is currently reviewing the incident and possible criminal charges.
21. The criminal investigation could be compromised by influencing witnesses recollections
of events. Witnesses stories have changed based on the partial disclosure of information
from the case. Additionally, the preliminary disclosure of witness names and addresses
could place the safety of witnesses and victims at risk.
PROPOSED CONCLUSIONS OF LAW:
1. The Plaintiff made an Inspection of Public Records Act request.
2. The request was properly denied pursuant to NMSA 1978 14-2-1(A)(4). Each of
Plaintiffs nine numbered requests contained records exempt under this IPRA subsection.
3. Faber v. King, 2015-NMSC- 015, 348 P.3d 173 is the appropriate authority to analyze
this case.
4. Should any violation be found, the enforcement should be through the mechanisms
provided in NMSA 1978 14-2-12.
5. Damages under Section 14-2-12 are limited to compensatory damages designed to
compensate [Plaintiff] for any loss or injury suffered as a proximate result of the delayed
production of the requested records. Faber v. King, 348 P. 3d 173, 183 (2015).
6. The Plaintiff has shown no actual damages from the denial of her public records request.

7. The City of Albuquerque properly asserted the law enforcement exception because the
requested information contained confidential information the release of which would
compromise an ongoing police investigation.
8. NMSA 1978 14-2-12 does not provide for punitive damages. A successful litigant
suing under Section 14-2-12 is adequately compensated by obtaining the documents he or
she sought in the first place. Faber v. King, 348 P. 3d 173, 183 (2015).
9. All documents that should have been provided were provided prior to trial, which are a
portion of documents contained in Plaintiffs requests numbered six through nine, which
do not relate to the incident on March 22, 2015.
10. The City of Albuquerque did not violate the Inspection of Public Records Act in its
responses or denial to the request made on behalf of Munah Green.
11. No additional documents or other records related to the incident on March 22, 2015 shall
be provided until such time as the Citys law enforcement officers and the District
Attorney determine that their release would not jeopardize this criminal investigation.
12. Records responsive to Plaintiffs requests numbered six through nine that are related to
the date of incident on March 22, 2015, should be ordered to be returned by Plaintiffs
counsel and be declared exempt from disclosure.
13. Attorney fees are not appropriate in this matter because the City properly denied records
in Plaintiffs IPRA request pursuant to an appropriate assertion of the law enforcement
exception and provided nonexempt documents prior to trial.
WHEREFORE, the Defendant, City of Albuquerque, respectfully requests that the
Court deny the Plaintiffs complaint and relief requested, rule that the City did properly and

appropriately deny the Plaintiffs Inspection of Public Records Act request pursuant to the
law enforcement exception to disclosure contained within the Act, and accordingly order that
no additional documents be provided to Plaintiff, nor damages or attorneys fees be awarded.

Respectfully Submitted,
CITY OF ALBUQUERQUE
Jessica M. Hernandez
City Attorney
/s/ Kevin Morrow
Kevin Morrow
Assistant City Attorney
P. O. Box 2248
Albuquerque, New Mexico 87103
(505) 768-4500

I certify that on 11/30/2015 a copy of this

Motion was electronically mailed to opposing
Counsel of record:
Ahmad Assed: ahmad@assedlaw.com
Richard Moran: Richard@assedlaw.com
Dustin Luettgen: dustin@assedlaw.com

/s/ Kevin Morrow

Kevin Morrow
Assistant City Attorney