LOCAL NEWS

Toomey v. City IPRA Cases: Mediation Fails, Trials to go Forward

By Kathleen Sloan

HERALD Reporter

Deborah Toomey has two Inspection of Public Records Act cases against the city, both filed in 2009.

The first case deals with three requests she made to view two audit logs that are supposed to track Social Security numbers and other personal information the city holds on paper and within its computer system in the utilities department.

The second case deals with Toomey’s claim of falsification of documents and other instances of tampering with the public record, also concerning personal information, such as Social Security numbers. It has not yet been heard.

Toomey began researching how the city protected or did not protect personal information in an effort to demonstrate that the city was not conforming to the 1974 Federal Privacy Act.

Toomey says her research reveals identity theft and failure to safeguard highly sensitive personal information, such as Social Security numbers, as required by federal regulations.

In several 2008 city commission meetings, snowbirds complained they did not want to give their Social Security numbers to the city, fearing identity theft. Toomey says she “pleaded” with the city for a year and a half to come into compliance with the federal law before filing suit.

The city requires Social Security numbers to obtain utility services.

In May 2008, then-City Manager Jaime Aguilera asked the commission to “reaffirm” a policy requiring Social Security numbers, which they did. That policy is still in effect.

District 13, Albuquerque Judge William Sanchez has both cases on his docket. The first case has had two hearings and the second case has not had any hearings.

At a Nov. 28 hearing, Sanchez asked the parties to cooperate on a settlement if the audit logs were produced. Toomey says one of the audit logs –the computer version– was produced Dec. 5. The city says both the computer and paper-based audit logs were produced.

City Manager Juan Fuentes was asked on Monday, March 19, to affirm or deny if the paper-based audit log exists and if Toomey was given it, but has not responded.

This reporter’s IPRA request to inspect that audit log was fulfilled on Friday, March 23. The first entry is July 11, 2008, proving that the city did not start keeping the federally required audit log until after Toomey began requesting to inspect it.

A settlement meeting to get both cases off the books was held between the city and Toomey on Thursday, Feb. 16. It is unknown if City Attorney Jay Rubin presented that settlement offer to the previously sitting city commission. At the Feb. 28 city commission meeting, after an executive session, the board moved to go to mediation, “per Judge Sanchez’ suggestion.”

Rubin later admitted Sanchez had not suggested mediation.

The new city commission, on March 13 –after executive session– affirmed the action “to go to mediation.”

Mediation was held in Albuquerque, at the Court of Appeals, on Friday, March 23, conducted by court-appointed Appellate Mediator Richard Rambo. A settlement was not successful between the parties; therefore both cases will go to trial.

The day before mediation, City Manager Juan Fuentes and Mayor John Mulcahy were asked to comment on why the firm Brennan & Sullivan of Santa Fe had been hired to replace City Attorney Jay Rubin, on March 19. They were also asked how outside legal counsel could be hired contradictory to ordinance Division 5, “City Attorney,” Section 2-142, which says he “shall prosecute or defend any and all suits or actions” for the city.

Exceptions to ordinances are to be passed in open session by resolution. This has not been done. Neither Mulcahy nor Fuentes responded by press time.

IPRA cases, if successful, can be awarded $100 per day per request. IPRA cases also allow for other damages. Toomey claims both cases could result in a maximum award of about $3 million.

This reporter submitted an affidavit at Toomey’s request, for the first court case, submitted Monday, March 19. The affidavit attests to three IPRA violations by the city experienced by this reporter, among other points made concerning the difficulty of examining accurate city records.

It should be noted that most IPRA lawsuits are brought by members of the press, since it is the most essential right that allows the Fourth Estate to operate as a check and balance on government abuses.

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