In a series of three recent court decisions, New Mexico’s appellate courts have grappled with IPRA’s implications for private entities. In State ex rel. Toomey v. City of Truth or Consequences2 and New Mexico Foundation for Open Government v. Corizon Health, the Court of Appeals held that the records of a private contractor performing services on behalf of a public body were subject to inspection under IPRA to the extent they related to government business.

This article maintains that IPRA requests must be directed to the public body, not a private contractor, and that a private entity is not a proper defendant in an action to enforce IPRA. Based on IPRA’s plain language and overall statutory purpose, the decisions in Toomey, Pacheco, and Corizon should be read narrowly as holding only that the records of a private entity are public records when held on behalf of a public body. The nine-factor test from Toomey, weighing the circumstances to determine whether records are effectively held on behalf of a public body, should not be misconstrued to subject a private entity itself to IPRA. Instead, only a private entity’s records may be subject to IPRA through the public body on whose behalf the private entity is operating. An IPRA request should be directed to the public body, not the private contractor or employee. And, in the event of alleged noncompliance with IPRA, the public body is the proper defendant, not its private contractor.

The first section of this article describes the history of IPRA, particularly as it relates to private entities. First, it traces the evolution of IPRA over time, with an emphasis on its shifting scope and provisions, until the statute reached approximately its current form roughly thirty years ago. The article then discusses Toomey, Pacheco, and Corizon in detail, explaining each case’s procedural history and the respective court’s decision. The second section analyzes the holdings in all three cases and outlines various possible interpretations. Finally, this article argues that these three cases cannot, consistent with IPRA, be interpreted as holding that private entities may constitute public bodies for the purposes of specific public records requests.

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