By MAIRE O’NEILLLos Alamos County Councilor Susan O’Leary’s personal attorney Kate Ferlic has responded to briefs filed by two other attorneys in a suit filed by Patrick Brenner in First Judicial District Court against the County Council and the County Custodian of Records.
The case, which has dragged on since June, involves a request by Brenner under the state Inspection of Public Records Act for all emails sent and received May 15 by Los Alamos County Councilors. Brenner maintains not all O’Leary’s emails from her personal email account from that date have been produced. The County has requested that the Court review O’Leary’s personal emails in camera to determine if they are public record and should be released to Brenner.
In her response to the County’s brief, which was filed by attorney Tony Ortiz of Ortiz and Zamora, LLC, Ferlic accuses the County of trying to limit its own liability to Brenner rather than provide the Court with a standard of review for personal emails.
“By attempting to argue O’Leary has become a records custodian, Los Alamos County Council seeks to shift an unlikely damages award onto (O’Leary) personally. It is clear that (O’Leary) is not a records custodian under IPRA,” the brief states.
It adds that emails have already been produced where O’Leary received content at her County email address and email where she forwarded that content to her personal email address.
O’Leary’s brief maintains records custodians are designated by the public body, that the simple fact of acting as a public official does not convert each public individual into a records custodian or require each public official to designate one. She asks the Court to look at the “plain” language of IPRA and perform the two-part analysis on whether the personal emails she submitted to the Court are subject to disclosure under IPRA and maintains those emails are not public records.
In response to the brief filed by Brenner’s attorney Blair Dunn, O’Leary claims it has a fatal flaw – that it only addresses one prong of IPRA’s definition of public records; that the records broadly relate to public business and that there is no evidence that she used, created, received, maintained or held any records on behalf of any public that relate to public business.
O’Leary claims Brenner “glosses over” this requirement and that he implies that any person who holds public office always acts as a “public body whether he or she is campaigning, engaged in a PAC activity, attending a soccer game or emailing a police department about her personal safety”.
The brief argues that O’Leary acted in her private capacity when she “forwarded a threat from Brenner to friends and family and participated in requesting advice from the chief of police”.
“These activities can be easily distinguished from the affairs of government and official actions of a public official as contemplated by IPRA,” the brief states.
“If the law was applied as Brenner seeks, any private person would be subject to IPRA if they discussed any topic ranging from a campaign for public office to a child’s soccer practice on a publicly-funded field. This would create an absurd result,” the brief states. “Brenner himself would be subject to IPRA on what he did with the IPRA response from Los Alamos County, who he sent it to and the hard drive where he keeps it.”
The brief also discussed the fact that the County produced a single email for Brenner where a personal email from O’Leary to Councilor James Chrobocinski is copied to Chief of Police Dino Sgambellone.
“This email is expressing fear for (Chrobocinski’s) personal safety and the safety of his friends and colleagues. It is clear from the email to the chief of police that Mr. Chrobocinski believes that because he was personally involved in a PAC campaign to get a bond issue passed by voters, that he may be a target of violence by Brenner,” the brief states. “Los Alamos County Council produced this email to Brenner, further inflaming potential for violence, but unrelated to public business, not conducting public business and certainly not related to an official act.”
Dunn declined Saturday to comment on the latest brief and Los Alamos County Attorney Alvin Leaphart indicated that his office does not comment on pending litigation. A motion hearing is slated for March 30 before Judge Greg Shaffer.