AG Balderas Issues Guidance to Public Entities Regarding Open Meetings Act and Inspection of Public Records Act Compliance During COVID-19 State of Emergency

For Immediate Release:
March 17, 2020
Contact: Matt Baca — (505) 270-7148

Santa Fe,NM—Today, Attorney General Balderas issued the following guidance to public
entities across the State of New Mexico regarding their ongoing obligations to comply
with the Open Meetings Act (OMA) and the Inspection of Public Records Act (IPRA)
during the state of emergency in New Mexico.
“The health and safety of New Mexican families is the number one priority across our
State, but government must remain transparent and accountable, especially during a
state of emergency,” said Attorney General Balderas. “All public entities should follow the
guidance of public health officials and make any necessary adjustments to ensure
compliance with our transparency laws during this time.”
The Office of the Attorney General advises all public entities subject to OMA to first and
foremost follow the guidance of the Department of Health and other health officials to
ensure the health and safety of both members of the entity and the public. Accordingly,
the most prudent thing to do to ensure compliance with OMA would be to postpone any
non-essential public meeting during the pendency of the state of emergency. If, however,
a public entity has an emergency or time-sensitive matter to attend to, it may proceed
with a virtual meeting under the following guidelines:
• Notice of the meeting must still comply with the mandates of OMA, and it should
contain detailed information about how members of the public may attend and
listen via telephone, live streaming, or other similar technologies—this should
include such detail as relevant phone numbers, web addresses, etc.;
• While provided by alternative means, the public must have some form of access
to the meeting to substitute for the access it would during any normally
scheduled public meeting subject to OMA;
• Where possible, videoconference is the best alternative method of holding
• At the start of the meeting, the chairperson should announce the names of those
members of the public entity participating remotely;
• All members of the public entity participating remotely must identify themselves
whenever they speak and must be clearly audible to the other members of the
public entity and to the public;
• The chairperson or person leading the meeting should suspend discussion if the
audio or video is interrupted;
• All votes of the public entity should be by roll call vote;
• The public entity should produce and maintain a recording of the open session of
the meeting.
To comply with IPRA, the Office of the Attorney General recommends that, first, agencies
continue to satisfy IPRA’s deadlines and fulfill IPRA requests however possible in light of
Department of Health’s recommendations and any order pursuant to the state of
emergency. Of paramount importance, as is always the case, a public entity’s records
custodian should communicate promptly with the requesting party, however now
regarding the circumstances of production in the context of the state of emergency.
Pursuant to public health guidelines during the state of emergency, public entities should
suspend all in-person inspection of public records during the pendency of the state of
emergency. Public entities should make every effort to comply with the mandates of IPRA
by producing records electronically. If circumstances arise where records are not
available electronically and cannot be produced in the timeframes mandated by IPRA, an
agency may designate a request as excessively burdensome due to the state of
emergency, and communicate to the requestor that the request will be fulfilled as required
by IPRA when the state of emergency is lifted.
In short, IPRA very much still applies and all deadlines should be satisfied to the fullest
extent possible. Where the state of emergency hampers or otherwise prohibits an entity’s
ability to respond, we reiterate that the entity nonetheless should communicate promptly
with the requester to make alternative arrangements to allow for the inspection of records,
in keeping with the spirit and intent of IPRA.
The Office of the Attorney General continues to be available to any public entity that has
questions or concerns about OMA and IPRA compliance, and will also continue to take
OMA and IPRA complaints during the state of emergency.