Larry Barker's battle with APS

The following is a chronology of Larry Barker's efforts to get
APS to surrender public records that APS did not want to make public.

The records were the basis of a report that Larry Barker, KRQE,
did on the scandal involving APS Director of Internal Audits,
Michael Kimbrell. link

On October 7, 2008, Barker made his request for public records.
He asked for "reports, surveillance photos, videotape, notes, emails and letters: of the investigation of Internal Audit Director, Michael Kimbrell.

He couched his request by pointing out that the NMIPRA allows
certain parts of records to be redacted, but does not allow the
redaction of the entire record just because some parts of it
warrant redaction. He also specifically excepted "letters or
memorandums which are matters of opinion in personnel files";
another favorite dodge that the leadership of the APS uses
to secret the truth from stakeholders.

Barker wrote;

"As you know, the Act provides that if portions of a document are exempt from release, the remainder must be segregated and disclosed. Therefore, I will expect you to give me access to all nonexempt portions or the records I have requested, and ask you to justify any deletions by reference to specific exemptions of the act."

Note; If there are any inaccuracies in the transcription, it is because I cannot read my copy of the record released by to me by the APS. It appears to be a copy of a copy, of a copy, of a copy, and is nearly illegible in places. This is another favorite antic of the public servants in the APS whose job it is to secret the truth from public knowledge.

Apparently, Barker has had the same experience with APS as
others; APS claims entire bodies of records are exempt,
because some parts may actually be exempt.

APS Custodian of Public Records, Rigo Chavez replied to Barker the following day. (This is highly unusual and frankly surprises me.)

I am not surprised though, that Chavez went ahead and tried to illegally redact all of the evidence. He wrote;

"The information you are requesting is exempt from the NM Inspection of Public records Act because it contains "law enforcement records that reveal confidential sources, methods or information on individuals accused but not charged with a crime"

Chavez went on to add;

"Therefore, your request is denied by Bill Reed, director of APS Police, and Andrea Trybus, executive director of APS Human Resources."

This dodge is used every time APS wants to add an exchange of letters to an already cumbersome and deathly slow process.

You pay them $3C an hour, I'm guessing,
to pretend that they don't understand the law.
This not the first time. It could be the hundredth.

Consider how long it took them to finally obey the law
and tell the truth on this one.

Everything that Larry Barker got, should have been surrendered
to public knowledge within three days.

Every day after that used unwitting taxpayer support for "education"
to fund instead;
self exception to the law, for the leadership of the APS.

Further, neither Reed, nor Trybus, has the authority to deny a request. That responsibility falls exclusively upon the Custodian of Public Records. (I am not an expert on the NMIPRA, I will bow to controverting fact on this particular assertion.)

Barker and KRQE hired an attorney to press the issue.
At some point, APS has to pay attorney's fees for anyone who
successfully presses a request in court. I don't know whether
or not APS (you, as a taxpayer) paid for Barker's lawyer or not.

Their lawyer, Jim Dines, of Dines and Gross, PC wrote;

"Mr. Chavez's denial is improper in this matter pursuant to the requirements of the New Mexico Inspection of Public Records Act )"IPRA"). Mr. Chavez's letter is a blanket denial and does not even attempt to provide information in a redacted format. The IPRA "law enforcement" exception, NMSA 14-2-1 (4) does not allow a complete sealing of a file. This exception is intended to protect specific materials and procedures and not entire files. The New Mexico Attorney General's Compliance Guide's commentary adn examples support the position that the exception is to be used cautiously.

At this time I would request that Albuquerque Public Schools conduct the correct review of those materials and provide to me, on behalf of Mr. Barker, an invesntor of those materials to which the exception is being applied, along with providing me those materials that are either not covered by the exception or can be redacted in order to maintain the exception."

On October 31st, APS received another letter from Barker's
attorneys. They wrote;

"... APS has made certain materials available to Mr. Barker pursuant to the Inspection of Public Records Act. However, additional materials are still being withheld, according to a letter from Rigo Chavez dated October 27, 2008. Mr. Chavez confirmed in phone conversation with Mr. Barker today that certain portions of the file have been withheld."

As a side note; Rigo Chavez failed to surrender a copy of the Oct. 27 letter in the materials he surrendered to me, although he represented that he had surrendered all public records for which I had asked.

Mr. Chavez specifically referenced photographs, but declined to give Mr. Barker details regarding those photographs. He did not disclose, for example, the number of the photographs being withheld, their subject matter, the dates and times of the photographs, or the identity of the photographer. Without this information, we cannot determine whether or not these photographs may in fact be properly shielded from disclosure under the IPRA.

These photographs were of Kimbrell exiting a porn shop while he was on the clock, were incredibly damning, and were central to Barker's finished piece.

"Please immediately provide this information regarding the photographs. Furthermore, if additional materials other than photographs have been withheld, please identify them with sufficient description so that we may determine if they may be properly withheld."

The photos were eventually surrendered and the story that the leadership of the APS was trying to keep secret from stakeholders was finally told; but only after taxpayers underwrote what must be considerable expense to keep them secret.

Taxpayers paid through the nose to enable legal weaselry, and mis, mal, and non-feasance of public servants who tried very deliberately to keep the truth from stakeholders.

We will never know how much exactly.

You could ask for the records that report the expense,
but they won't give them to you; not without a fight.

The worst part;
you have no reason to expect that any of this will ever change.



end note;
Michael Kimbrell was fired three days after evidence
was collected by the APS Police Department
who apparently did a good job of collecting evidence and
documenting the misconduct.
The ball, with respect to fully informing stakeholders,
was dropped by the leadership of the APS,
not by the APS Police Department.