FIRST JUDICIAL DISTRICT COURT
STATE OF NEW MEXICO
COUNTY OF SANTA FE

HumanRights Defense Center,
Plaintif.t
Cause No. ---------

v.

The GEO Group, Inc., The New
Mexico CorrectionsDepartment,
Brian Fitzgerald, in his official
capacity as records custodian for
the New Mexico Corrections
Department, andDOES I
through 2, in their official
capacities.
Defendants.

COMPLAINT FOR PRODUCTION OF PUBLIC RECORDS,
F O R MANDAMUS, DAMAGES, A ND
DECLARATORY AND INJUNCTIVE RELIEF
1.

The Human Rights Defense Center (" HRDC ") brings these causes ofaction to enforce
the New Mexico Inspection ofPublic Records Act, NMSA 1978, §§ 14-2-1 to -12
("IPRA").
I.

INTRODUCTION

2.

Public transparency is a key part ofthe foundation ofa strong democracy.

3.

HRDC, a nonprofit journalism and advocacy organization, brings this action under IPRA to
compel production ofrecords maintained or controlled by the GEO Group, Inc. ("GEO")
1

and the New Mexico Corrections Department ("NMCD"), and for injunctive relief and
damages arising from the willful failure and refusal to produce public records as required by
law.

II.
4.

PARTIES, JURISDICTION, AND VENUE

HRDC is a nonprofit organization, incorporated in the state of Washington and with
headquarters in Lake Worth Beach, Florida. It is a "person" as defined by IPRA.

5.

GEO is a Florida-based, private for-profit corporation headquartered in Boca Raton, Florida
which operates jails, prisons, immigration detention centers, and juvenile detention centers
in countries across the world. GEO currently operates the Lea County Correctional Facility
in Hobbs, New Mexico and the Guadalupe County Correctional Facility in Santa Rosa, New
Mexico. GEO previously operated the Northeast New Mexico Detention Facility in
Clayton, New Mexico. 1 The NMCD contracted with GEO to house prisoners at the Lea
County Correctional Facility, the Northeast New Mexico Detention Facility, and the
Guadalupe County Correctional Facility. In that capacity, Defendant GEO performed a
public function and thus records related to its provision of services to NMCD are "public
records" as defined by IPRA.

6.

Defendant NMCD is a department of the State of New Mexico. It is charged with the
operation of prison facilities in the State. The NMCD contracted with GEO to house
prisoners at the Lea County Correctional Facility, the Northeast New Mexico Detention

1

Upon information and belief, GEO ceased operating the Northeast New Mexico Detention
Facility in October, 2019 after ten (10) years of operation. Seehttps://www.newschannellO.com/
2019/07/08/geo-group-ending-contract-with-northeast-new-mexico-detention-facility/.
2

Facility and the Guadalupe County Correctional Facility. Defendant NMCD is a "public
body" as defined by IPRA.
7.

Defendant Brian Fitzgerald is the assigned Public Records Custodian for the NMCD.

8.

Upon information and belief, Defendants DOES 1 through 2 were employed by GEO or
NMCD and acted as records custodians, were responsible for maintaining public records,
and participated in the decision or were responsible for denying the inspection of records
responsive to Plaintiff's records requests.

9.

This Court has jurisdiction over this case pursuant to NMSA 1978,§ 14-2-12 and NMSA
1978, §§ 44-2-1 to -14.

10. Venue lies in the District Court for Santa Fe County pursuant to NMSA 1978,§ 38-3-l(G).
11. There is an actual controversy between the parties about the Defendants' duties under
IPRA. As a result, an action for declaratory relief is authorized under NMSA 1978, § 44-6-2
and§ 44-6-4.
III.

FACTUAL ALLEGATIONS

12. IPRA creates a foundation for an open, functioning democracy. It is the
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 public
officers and employees. It is further the intent of the legislature, and it is declared
to be the public policy of this state, that to provide persons with such information is
an essential function of a representative government and an integral part of the
routine duties of public officers and employees.
NMSA 1978, § 14-2-5.
13. IPRA broadly defines the records which the public may access: "all documents ... that are
used, created, received, maintained or held by or on behalf of any public body and relate to

3

public business, whether or not the records are required by law to be created or maintained."
NMSA 1978, § 14-2-6(G).
14. IPRA also broadly defines the organizations to which it applies to include "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." NMSA 1978,
§ 14-2-6(F).
15. On February 6, 2020 HRDC sent GEO a records request for verdicts and settlements from
January 1, 2010 to the present related to all claims or lawsuits brought against GEO and/or
any of its agents or employees and/or or any of its subsidiaries or affiliates concerning any
confinement facility GEO operates or operated under a contract within the boundaries of
New Mexico in which payments totaling $1,000 or more were disbursed. That letter is
attached as Exhibit 1.
16. On February 27, 2020 GEO, through a letter from its legal counsel, responded to the
request, asserting that it was not a public entity subject to IPRA, had no legal obligation to
take any action in response to the IPRA request, and failing to provide any of the requested
documents. That response letter is attached as Exhibit 2.
17. On February 27, 2020 HRDC sent a request to the NMCD for verdicts and settlements
related to all claims or lawsuits brought against several private prison contractors. The
request encompassed all documents requested in the February 6, 2020 letter to GEO. The
February 27, 2020 request to the NMCD is attached as Exhibit 3.

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18. On March 16, 2020 the NMCD responded to the February 27, 2020 letter via e-mail. It
indicated that the requested records were in the possession of private contractors, that it had
reached out to the contractors, and that it would advise HRDC if it received any responsive
records.
19. On March 18, 2020 the NMCD again e-mailed HRDC, stating that since HRDC had
requested the records from the private contractors and the contractors responded, the
NMCD had no additional records to provide, and therefore it was closing the matter. The
March 18, 2020 e-mail from the NMCD is attached as Exhibit 4.
20. To date, no records responsive to these IPRA requests have been produced by Defendants.

COUNT ONE:
VIOLATIONS OF THE INSPECTION OF PUBLIC RECORDS ACT
(Against All Defendants)
21. The Plaintiff incorporates by reference the above allegations.
22. Defendants have violated IPRA in these ways:
a. Defendants have failed to produce the documents requested by the Plaintiff and as
required by IPRA; and
b. If Defendants are relying on any exemption as a basis for withholding records, then they
have failed, when withholding documents responsive to the records requests, to issue a
proper denial of the records requests.
23. The Plaintiff has a right to recover damages, at up to $100 per day per violation of each
denied document under Section 14-2-ll(C) of the IPRA.
24. The Plaintiff has a right to recover its costs and attorneys' fees in pursuing this action under
Section 14-2-12(D) of IPRA.
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COUNT TWO :
DECLARATORY RELIEF
(Against All Defendants)

25. The Plaintiff incorporates by reference the above allegations.

26. There is an actual controversy between the Plaintiff and the Defendants as to whether the
Defendants' conduct, as alleged above, violates IPRA.
27. The law is clear that Defendant GEO was performing a public function and records created

in that capacity are public records. As such, GEO has a clear legal duty to provide public
records to Plaintiff.
28. The law is also clear that Brian Fitzgerald, as the NMCD records custodian, is responsible

for NMCD's public records, regardless of whether the records are in the custodian's actual
physical custody and control.
29. Despite the Defendants' legal duties to provide public records to Plaintiff, neither has
complied with IPRA and neither Defendant has produced any records or properly denied
such records.
30. Plaintiff is entitled to declaratory relief that Defendants have violated IPRA, and that
Defendants must provide the requested records to Plaintiff.

COUNT THREE:
INJUNCTIVE RELIEF AND MANDAMUS
(Against All Defendants)

31. The Plaintiff incorporates by reference the above allegations.

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32. Under NMSA 1978, § 14-2-12(B) (2010), Plaintiff is entitled to a writ of mandamus or
injunction ordering the Defendants comply with their mandatory, non-discretionary duties
to produce all relevant public records responsive to Plaintiff's requests.
WHEREFORE, the Plaintiff prays that
1. the Court declare that the Defendants have violated IPRA in responding to Plaintiff's
records requests;
2. the Court issue a writ of mandamus or injunction ordering the Defendants to produce the
records and information requested without further delay, and to produce all similar such
documents in the future; and
3. the Court enter an order for such other and further relief as the Court deems just and
proper, including, but not limited to, damages, costs, and reasonable attorneys' fees.
Date: July 7, 2020
Respectfully Submitted:
fs/Caroline "KC )) Manierre
Mark H. Donatelli
Caroline "KC" Manierre
Rothstein Donatelli, LLP
P.O. Box 8180
Santa Fe, NM 87504
Tel: (505) 988-8004
mhd@rothsteinlaw.com
cmanierre@rothsteinlaw.com

Eric Tavlor

Eric Taylor
Pro Hae Vice application forthcoming
Human Rights Defense Center
P.O. Box 1151
Lake Worth, FL 33460
Tel: (561) 360-2523
etaylor@humanrightsdefensecenter.org
7

Human Rights Defense Center
DEDICATED TO PROTECTING HUMAN RIGHTS

February 6, 2020
The GEO Group, Inc.
Attn: Public Records Officer
4955 Technology Way
Boca Raton, FL 33431
Sent via certified mail: 7017 3380 0000 0666 2601
Re:

Request for Settlement and Verdict Records

To the Public Records Officer:
The Human Rights Defense Center ("HRDC') makes this request pursuant to the New Mexico Inspection
of Public Records Act, N.M. Stat. Ann.§ 14-2-1, et seq. HRDC is a non-profit dedicated to advocacy and
education around criminal justice issues. Among other activities, HRDC publishes the journals Prison
Legal News and Criminal Legal News.
This request is directed to any confinement facility that GEO Group or any of its subsidiaries or affiliates
operates under a contract within the boundaries of New Mexico, in accordance with the recent changes to
New Mexico's public records law which affirm that private entities performing a public function for a
public agency are subject to the Inspection of Public Records Act.
HRDC is seeking all records of litigation against the GEO Group and/or its employees or agents where
the GEO Group and/or its insurers paid $1,000 or more to resolve claims against it. These payments
include but are not limited to settlements, damages, attorney fee awards, and sanctions, irrespective of the
identity of the plaintiff or claimant. Specifically, HRDC requests the following records, provided in
electronic native format where possible, and otherwise in electronic format:
1. Records, regardless of physical form or characteristics, sufficient to show for all claims or lawsuits
brought against the GEO Group and/or any of its agents or employees in which payments totaling
$1,000 or more were disbursed from January 1, 2010 to the present:
•

The name of all parties involved;

•

The case or claim number;

•

The jurisdiction in which the case or claim was brought (e.g., US District Court for the
District of New Mexico, New Mexico Supreme Court, etc.);

•

The date of resolution;

•

The amount of money involved, if any, in the resolution and to whom it was paid,

720 3rd Avenue, Suite #1605, Seattle, WA 98104
206-257-1355 I mdillon@prisonlegalnews.org

EXHIBIT 1

2. For each case or claim detailed above:
•

The complaint or claim form and any amended versions;

•

The verdict form, final judgment, settlement agreement, consent decree, or other paper that
resolved the case.

I request that the above-described public records be provided to me in electronic format if they exist in
electronic format, pursuant to NMSA § 14-2-9(B). In the event that such documents are only available in
hard copy format, I request an opportunity to inspect and copy the specific public records I select from the
records identified above.
If this request encompasses information or records that GEO Group claims are exempt from disclosure
pursuant to any applicable statute or law, then please redact such information, as required by NMSA
1978, § 14-2-1 (B), from the document or record rather than withhold the entire document from disclosure.
If you apply any redactions, please describe the redacted information and provide a basis for your claim
that the redacted information is not subject to disclosure.
If you claim that any of the requested records are not a public record, or if you claim a privilege not to
disclose any record, please describe the record(s) being withheld and state the basis for your claim of
privilege or confidentiality. Please produce all public records for which you do not claim an exemption or
privilege, as the above requests are segregable.
HRDC is a non-profit organization. These records are not for any profit-related or commercial purpose.
Should there be any fees incurred related to the production of the public records I am requesting, I request
a waiver of such fees.
Please respond to this records request within fifteen (15) days of receipt of same. Note that failure to
respond to this records request within fifteen (15) days will be considered a denial of my public records
request, and I will duly take appropriate action. If you need additional time in which to produce the
requested records, please advise in writing so I may consider your request for an extension of time.
Please contact me if this request does not describe all of the above-requested documents with sufficient
specificity for you to make a reasonable response, and I will attempt to reformulate the request in a
manner that meets your requirements. If you are not the custodian of the records I am requesting, please
promptly forward this request to the custodian of the requested records and notify me accordingly. Please
contact me via email, mdillon@prisonlegalnews.org, should you require any additional information.
Thank you for your time and attention in this matter.
HUMAN RIGHTS DEFENSE CENTER

Michelle Dillon
Public Records Manager

720 3rd Avenue, Suite #1605, Seattle, WA 98104
206-257-1355 I mdillon@prisonlegalnews.org

YLAW
ATTORNEYS

February 27, 2020
VIA ELECTRONIC MAIL
mdiilon@prisonlegalnews.org
AND REGULAR USPS FIRST CLASS MAIL
Ms. Michelle Dillon
720 '3 rd Avenue, Suite 160S
Seattle, WA 98104
Re:

HRDC Request for Settlement and Verdict Records dated. February 6, 2020

Dear Ms. Dillon:
YLAW, P.C. represents The GEO Group, Inc. ('GEO"). I am writing -in response to youf'letter
to GEO dated February 6, 2020, making a direct request of .GEO for certain records and asserting
that the terms and provisions of the New Mexico Inspection of :r>ublic Records Act ("IPRA") and
alleged "recent changes to New Mexico's public. records law" authorize you to make direct
request of GEO for "pub]ic records" and otherwise impose independent obligations upon GEO to
act in conformity with IPRA as a consequence of your purported IPRA request For the reasons
summarized below, the assertions .and assumptions underlying your request are in ·error, and
GEO has ho legal obligation to take any action in response to your le.tter.
GEO is not a "public body" within the meaning of Section 14-2-6(F) of IPRA and it necessarily
fo11ows that no one employed by or affiliated with GEO is or even.could be a "custodian" under
Section 14-2-6(A) of IPRA. Consequently, no public body- in New Mexico can designate any
person employed by or affiliated with GEO as. a custodian under IPRA, And to be sure, no
public ·body in New Mexico has eyer attempted to formally designate and publicly announce any
one employed by or affi]iated with GEO as a custodian under Section 14-2-7 of IPRA with
attendant duties thereunder� In sum, GEO has no independent obligation to.respond to your
request. See, e.g.. Pena v. The GEO Group, Inc., D-504-CV-2015-00349, 2018 WL 790759
(Fifth Judicial District Court Order filed 1/25/18); Pache.co v. Hudson� 415 P.3d 50$, 415 (2018)
(holding that the "designated records custodicµi in the only official who is assigned IPRA
compliance duties" under Section41-2-7 and "is the only official who statutorily 'is slibj,ect to an
action to enforce' IPRA" under Section 14-2-1 l{C)" (emphasis in.original). NMFOG v. Corizon
Health, -P.3d--, 2019 WL 4551658 (Ct. App. 9/13/19) is inapposite for a variety of reasons,
not the least of which is that threshold defenses under Sections 4°1-2-6 and 41-2-7 and the impact
of Pacheco v. Hudson were not raised or addressed. See, e.g.. , State v. Thompson, 146 N.M. 663,
667,213 p·;3d 813, 817 (Ct. App. 2009) (citation omitted) (cases are not authority for
propositions not considered).

EXHIBIT2

4908 AI.Aldl::DA BLVD, NE .A. ALBUQUtRQUE, !'IIM 87113•1736 .A

P 505•266·3995 A

F S05•268•6694 4 INFO@YLAWFIRM,COM

Michelle Dillon
February 27, 2020
Page 2

The New Mexico Corrections Department has designated its IPRA custodian v.ia its website. As
noted in Section l 4-2-6(A) ofIPRA, .a public body's custodian has duties and obligations
extending to records that may not be in that custodian's actual physical custo«y and
control. GEO, therefore, may have obligations to furnish to NMCD's public records custodian
those public records, if any, in its possession, but GEO's obligations run solely to the NMCD's
custodian, not any requester, and any such obligation by GEO to assist the NMCD's custodian
and furnish any such records to that custodian is triggered only when a proper request is made in
the first instance to NMCD'.s custodian and the custodian, in turn, contacts GEO in connection
with that custodian's discharge of his or h er duties and obligations to a requester. See Pena and
Pacheco, supra.
The New Mexico court system has likewise designated custodians via its website. IPRA does
not apply to the federal courts chambered in New Mexico. You may conduct your own search
for judicial records at your own time and expense.
Finally, subject to and without waiving the above-noted defenses nor any defenses not explicitly
set forth in this letter, and without conceding that any settlement agreement GEO may have
entered into in New Mexico to resolve disputed claims asserted in New Mexico is a "public
record" under IPRA, we also direct your attention to NMSA Sections 33-1.6-6 and 33-16-7 and
suggest you make request of applicable records custodians for settlement reports, if any,
submitted in accordance therewith.
Very truly yours,

?,-

MSJ/png
cc:

Brian Johnson via electronic mail

Human Rights Defense Center
DEDICATED TO PROTECTING HUMAN RIGHTS

February 27, 2020
New Mexico Corrections Dept.
Attn: Public Records Manager
P.O. Box 27116
Santa Fe, NM 87502
Re:

Request for Settlements and Verdicts Records

To the Public Records Manager:
The Human Rights Defense Center ("HRDC') makes this request pursuant to the New Mexico
Inspection of Public Records Act, N.M. Stat. Ann.§ 14-2-1, et seq. HRDC is a non-profit
dedicated to advocacy and education around criminal justice issues. Among other activities,
HRDC publishes the journals Prison Legal News and Criminal Legal News.
This request is directed to any confinement facility or services within any confinement facility
that GEO Group, Management & Training Corporation, CoreCivic, Corizon, or Centurion, or
any of their subsidiaries or affiliates (collectively "private New Mexico corrections companies")
which are operating or have operated under a contract within the boundaries of New Mexico, in
accordance with the recent changes to New Mexico's public records law which affirm that
private entities performing a public function for a public agency are subject to the Inspection of
Public Records Act.
HRDC is seeking all records of litigation against any private New Mexico corrections companies
and/or its employees or agents where the company and/or its insurers paid $1,000 or more to
resolve claims against it. These payments include but are not limited to settlements, damages,
attorney fee awards, and sanctions, irrespective of the identity of the plaintiff or claimant.
Specifically, HRDC requests the following records, provided in electronic native format where
possible, and otherwise in electronic format:
•

The relevant time period is January 1, 2010 to the present.

•

"Payments" includes, without limitation, settlements, damages, attorneys' fees, and
sanctions.

•

Records shall be produced in electronic native format where possible, and otherwise in
electronic format. To the extent production in electronic format is not possible, records
may be produced in hard copy.

EXHIBIT3

720 3rd Avenue, Suite #1605, Seattle, WA 98104
206-257-1355 I mdillon@prisonlegalnews.org

For each Relevant Claim, HRDC requests records sufficient to show:
1. the name of all parties involved;
2. the date of resolution;
3. the amount of money paid to resolve the claim;
4. the person or entity to whom the money was paid;
5. for those Relevant Claims that did not result in litigation:
a. the claim form or other document that describes the claim; and
b. the final agreement resolving the claim; and
6. for those Relevant Claims that resulted in litigation:
a. the docket number;
b. the jurisdiction in which the action was brought (e.g., US District Court for the
District of New Mexico, New Mexico Supreme Court, etc.);
c. the complaint and any amendments thereof; and
d. the verdict form, final judgment, settlement agreement, consent decree, or other
document that resolved the case.
If any of these requests, or any portion thereof, is denied in whole or in part, please provide an
accounting of each record being withheld, and the specific exemption being invoked for such
record. In addition, to the extent the New Mexico Corrections Department or any other party
claims that any portion of a record is confidential or otherwise protected from disclosure, please
redact the allegedly confidential or protected portion and produce the redacted record. By making
this request, HRDC does not waive, but rather expressly reserves, its right to challenge a claim
that any portion of a record is confidential or otherwise protected from disclosure.
Please contact me via email, mdillon@prisonlegalnews.org, should you require any additional
information. My phone number is 206-257-1355. Thank you for your time and attention in this
matter.
Sincerely,
HUMAN RIGHTS DEFENSE CENTER

Michelle Dillon
Public Records Manager
720 3rd Avenue, Suite # 1605, Seattle, WA 98104
206-257-1355 I mdillon@prisonlegalnews.org

Michelle Dillon
From:
Sent:

To:

Cc:
Subject:
Attachments:

Ahring, Catherine, NMCD <Catherine.Ahring@state.nm.us>
Wednesday, March 18, 2020 10:07 AM
Michelle Dillon
NMCD-IPRA
20-169
20200302140332216.pdf

Ms. Dillon:
It is my understanding that you had requested this separately from the private facilities and that they have responded to
you. NMCD has no additional documents to provide and is closing this matter.
IPRA PARALEGAL
NMCD-OGC
P.O. BOX 27116
SANTA FE, NM 87502
Catherine.ahring@state.nm.us
505-827-8719

This e-mail communication may contain CONFIDENTIAL INFORMATION and is intended only for the use of
the intended recipient(s) identified above. If you are not the intended recipient of this communication, you are
hereby notified that any unauthorized review, use, dissemination, distribution, downloading, or copying of this
communication is strictly prohibited. If you have received this communication in error, please immediately notify us
by reply e-mail, delete the communication, and destroy all copies.

EXHIBIT4

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