Attorneys for Los Alamos County now maintain that the County cannot be and is not responsible for Councilor Susan O’Leary’s failure to produce emails from her personal email account in a suit filed by former Los Alamos resident Patrick Brenner against the Los Alamos County Council and County Custodian of Records under the New Mexico Inspection of Public Records Act (IPRA).
Attorney Tony Ortiz of Ortiz and Zamora, LLC, representing the County in the suit, said in a brief filed March 6 in First Judicial District Court that by forwarding an email she received from Brenner to herself at her personal email account, O’Leary made that email a public record when she received it at her personal account. Ortiz said the email had become public record when it was first received at O’Leary’s County Council email account.
“She cannot escape that fact simply by forwarding that email to her personal email address in an attempt to launder the document,” he said. “That being said, the email from (Brenner) to her personal account has been produced to (Brenner). It is the forward that Ms. O’Leary received in her personal account that Ms. O’Leary refused to supply to the County when asked.”
“Additionally, the fact that Ms. O’Leary was allegedly forwarding a public record received by her as a County Councilor with her ‘political party or campaign hat on’, again does not change the nature of the document,” Ortiz said.
He added that O’Leary would not have the information with which to campaign had she not been a County Councilor and that any forwarding of the Brenner email would change the nature of it as a public record.
“While Ms. O’Leary undoubtedly will argue that her right to … is grounded in the Constitution, that has to be balanced against the public’s right to access public records,” Ortiz said.
He said that while O’Leary may have had an argument that any email forwarded from her personal email account is private, she may have waived that argument by forwarding it to a local newspaper and political allies.
“These actions seem to contradict Ms. O’Leary’s argument that she was forwarding the emails from (Brenner) out of fear for her friends’ and family’s safety,” the brief said.
Ortiz maintains that the County has fulfilled its obligation under IPRA and that O’Leary in her Feb. 23 brief is ultimately taking personal responsibility for her actions and for the emails she forwarded.
“By arguing that the emails that are in her possession are not public but instead personal emails, she has the responsibility of proving they are not public records and that if they are, they are protected from disclosure under a delineated exception,” he said.
Ortiz added that the County cannot be and is not responsible for O’Leary’s refusal to produce the emails.
County Public Information Officer Julie Habiger said the County has no comment at this time.
O’Leary’s attorney Kate Ferlic, a partner in the law firm of Egolf, Ferlic and Harwood, responded late today to a request for comment from the Los Alamos Daily Post.
“From day one, Councilor O’Leary has been committed to follow the spirit and letter of open records laws in New Mexico,” Ferlic said. “She has already provided all emails that are public records to the requestor. In the interest of transparency, she is submitting all of her personal emails to the judge in this case for review. She looks forward to a determination from the judge and will gladly comply with any ruling.”
A motion hearing in the case is slated for March 30 before Judge Greg Shaffer.
Editor’s note: Carol A. Clark contributed to this story.