Los Alamos County Councilor Susan O’Leary

Los Alamos County Councilor Susan O’Leary’s personal attorney, Kate Ferlic, has filed a brief in First Judicial District Court on her behalf, in a case filed against the Council and the County’s Designated Custodian of Records Barb Ricci by former Los Alamos resident Patrick Brenner, under the New Mexico Inspection of Public Records Act (IPRA).

The brief is an unopposed motion for in camera review and bench memo on standard of review.

Judge Greg Shaffer gave permission for Ferlic to intervene on O’Leary’s behalf to submit a Vaughn index of her personal emails from May 15, 2017 to allow the Court to determine whether they should be considered public record and subject to review under IPRA. A Vaughn Index is a document that agencies prepare in Freedom of Information Act (FOIA) litigation to justify each withholding of information under a FOIA exemption.

The Council had asked the Court for an in camera review of the emails stating that it had not reviewed the documents that are in O’Leary’s control. Ferlic’s brief filed Feb. 23, notes that neither party has reviewed or accessed O’Leary’s emails and that the County is not the custodian. It also notes that O’Leary’s and the County’s interests are not congruent.

“Los Alamos County Council has an interest in producing all emails it has in its possession (regardless of whether they are public record) to avoid the potential for liability including penalties and attorney fees. On the other hand, Ms. O’Leary wishes to prevent further harassment and intimidation of herself, her family and friends – harassment that has arisen from (Brenner’s) desire to access her private email to which he is not entitled under the law,” the brief states. It adds that O’Leary is intervening in the case to assert that her personal emails are not public records, to protect her safety and the safety of her family and friends (the recipients of personal emails).

O’Leary denies she sent any emails from her personal email address on behalf of the public conducting business. She maintains personal emails from May 15 were created in her personal capacity and not in her capacity as a public official acting on behalf of a public body as defined in the IPRA statute. She claims in the brief that the emails sought do not relate to public business, that the subjects range from child pick-up plans to GAP ads to her efforts as a citizen to get out the vote for the recreation bond issue.

The brief states it is easier to determine if some emails are created by a public body than others.

“Advertisements, coupons and plans to pick up children are certainly not created ‘on behalf of the public body’ and do not ‘relate to public business’. Where the determination gets more difficult is where Ms O’Leary receives a threatening email at her Los Alamos County email address, then forwards that to her non-governmental email address and then forwards that threatening email on to friends, family, political campaign associates and the police,” the brief says.

O’Leary maintains if she puts on her “political party” or “campaigning” hat and discussed public issues, she is creating content on behalf of her campaign. She alleges she was being “prudent and careful” by not using her County email address and that she created an intermediate step which indicates she wanted to make a clear separation between her status as an elected official and her status as a political campaigner.

The brief states that O’Leary “received a message from someone who is not even a constituent and which made her feel uncomfortable”. It says she forwarded that message to her husband and friends and “discussed contacting the police”.

“A councilor trying to understand the state of mind of a potentially unstable person or talking about whether she should be scared for her safety is not a ‘function required by law’,” the brief states.

It also state that Brenner might consider calling councilors “pigs” to be public business but that she considered being called a pig “a threat to her personal safety and the safety of her family”.

Towards the end the brief states that O’Leary is “deeply concerned that if the identities and email addresses of all her correspondents are revealed to Patrick Brenner, he will use that information to harass them.

“She, as an elected official must expect a certain degree of public critique but that her correspondents, all private individuals should not have to experience any degree of harassment,” the brief says.

In an affidavit filed the same day, O’Leary says she was “deeply disturbed” by the email Brenner sent to Council members and feared he would continue to “escalate physical intimidation and harassment”.

“Mr. Brenner writes very personal and untrue insults towards me in his blog Mighty Leaks. Some of his posts are quite threatening including a photograph of me with my two front teeth blocked out indicating that he will punch me,” she says.

She also says on multiple occasions she has seen Brenner drive by her house slowly.

“The street where I live is not on a thoroughfare or regular route to anywhere,” she said.

Judge Shaffer has ordered that O’Leary submit to the Court by March 9 an indexed three-ring binder containing the Vaughn Index and all memoranda of law filed by all parties in the case as well as a copy of her personal emails in a sealed envelope so that should the Court determine it is necessary to resolve the issues in the case, it can review the emails in camera prior to the next hearing in the case, which is scheduled for March 30.