091228 Motion to Dismiss

8/3/2019 091228 Motion to Dismiss

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,.,

STATE OF NEW MEXICOCOUNTY OF SIERRASEVENTH JUDICIAL DISTRICT COURT

S T I~T E 0 F N E 8 M E X I CSEYEN TH JU D IC 1A LD ISTR IC T COUR T

F IL ED

No.: D-0721-CV-2009-00098Judge: WILLIAM SANCHEZ 'C O 'U R T CLERKBY_----~EP

]]]]]]]]]]]]]]]]]]]]]]]]]]

STATE OF NEW MEXICO, ex. reI.DEBORAH TOOMEY, Individually,

Petitioner,vs.CITY OF TRUTH or CONSEQUENCES, a Municipality;LORI MONTGOMERY, Individually,and in her Official Capacity as Mayor;JERRY D. STAGNER, Individually,and in his Official Capacity as Mayor Pro-Tern;FRED TORRES, Individually,and in his Official Capacity of City Commissioner;EVELYN RENFRO, Individually,and in her Official Capacity of City Commissioner;STEVE GREEN, Individually,and in his Official Capacity of City Commissioner;JAIME AGUILERA, Individually,and in his Official Capacity of City Manager;MARY PENNER, Individually,and in her Official Capacity of City Clerk and Custodian of Records;BERNADINE GARCIA, Individually,and in her Official Capacity as Utility Billing Supervisor;DISTRICT ATTORNEY FOR SIERRA COUNTY,

Respondents.

RESPONDENTS' MOTION TO DISMISS

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COME NOW the Respondents (with the exception of the District Attorne ),and hereby move that this matter be dismissed pursuant to the provisions ofS.C.R.A. 1-012(b)(6), and as grounds therefor would show unto the Court asfollows:

1. In reading the Petitioner's Reply, it is clear that she is under heassumption that ADG Software could automatically create daily and monthly au itreports and is capable of automated redaction. (See paragraph 2 on front page, dparagraphs 2, 7 and 8 under Discussion).

2. After reviewing the Reply, the Respondent Bernadine Garcia contac edthe American Data Group (ADG) for clarification.

3. Attached hereto as Exhibit "A" is a letter dated December 1, 2009 fr mADG's representative.

4. As per enumerated paragraphs 2 and 4 on the second page, there are 0automatic auditing reports created.

5. The requested information could only be created in the burdensome a dcostly manner outlined on pages 4-5 of our October 21,2009 response.

6. In the absence of the documents being created, the requested audit Igsd o not ex ist.

7. The Inspection of Public Records Act does not contemplate creating newdocuments to satisfy a request. Rather, the IPRA only contemplates public records

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that are already "made or received by any agency in pursuant of law or illconnection with the transaction of public business." See 14-3-2(c).

8. As noted, this is not a case where the City has public records which it isrefusing to produce. Rather, this is a situation where the Petitioner is asking t eCity to create over 50,000 pages of new documents.

WHEREFORE, the City moves that this(l\/e~~e dismissed.\ \~) .-'I - .JAIMIE F. RUBIN, Esq.City-Attorney

Jaime F. Rubin, LLCP.O. Drawer 151Truth or Consequences, NM 8790575.894.3031 Fax: 575.894.328

CERTIFICATE OF MAILINGThe undersigned hereby certifies that a copy of the foregoi g

RESPONDENTS' MOTION TO DISMISS will be hand delivered to DeborToomey, Petitioner, at 415 W. Riverside Dr., Truth or Consequences, NMexico, 87901, on the 28th day of December, 2009. ./\(\ /()

\\/X (\L-/

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' I ~ 1 : I ~. * . . . AMERICAN DATA GROUP5730 E OteroAve Suite 300Centennial, CO 80112-6600Telephone (303) 741-571 IFAX (303) 741-4966

December 1, 2009

Bema GarciaCity of Truth or Consequences505 Sims StTruth or Consequences, NM 87901

Dear Ms Garcia,Per your request, below are my responses to the "Petitioner's Reply to Defendants

_____ ...,.....Responseo. Complaint-To. Enforce Provisions of the Public Records Act'; .. It.is.my goal ---,--.--~--to clarify items that may not be correct or misleading.1) Any information provided to the defendant by any ADG representative other than

myself, may be incorrect. The City is using the Progress Relational Database and4 GL application since purchased in February of 2001. The City has not yet themigration to our new browser based application. The Progress database may beonly accessed in two ways a) via the Progress Client or b) an OnBC connectiondeveloped by Merant to interface with the Progress database. The OnBC clientmust be installed on the client workstation wishing to access the database;whereas, the Progress client may be accessed from any workstation.To use the ODBC client, you must know SQL programming or use a 3rd partysoftware application which will interface with the ODBC client which isconnected to the database. Microsoft Excel and Access may accomplish this. Asfar as I know, the ODBC driver has not been installed on any city workstations.The ODBC connection would also provide complete access to all data - whichcould present a security risk unless special access rights are granted by user id.The Progress Client allows access to the Progress Editor which allows us to writeprograms and access the database. The workstation icons to access the ADGapplications have a parameter set that only allows them to run existing programs.The Progress Report Writer - Results - was installed on your system. I am sureno current employees know how to access or use it.

EXHIBIT "A"


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2) Regarding Audit Logs. The existing system may create audit records for selectedfiles changed in the file maintenance process if the option is turned. In theaccounting system it is the employee master, vendor master, and PIR type codemaster. In utility billing the files are: Customer Master. Location Master, andServices. In the company master maintenance program you can see which filesare turned on for file auditing.There are no automatic auditing reports created. You may run the audit reportbased on a number of parameters (determined by which application you arerunning it for). Generally you may select a date range, which of the master filesto include, a single or all operators, and for a certain key value of the file beingselected. For example the Customer Master in utility billing, you may select onlyaccount# 100. The audit file will contain changes to the tax id, credit card, andbank info fields. The values are not masked on the audit report.

3) Tax ill, Credit Card, and Banking Data fields. The fields are not stored asencrypted in the Progress database. These values are stored encrypted in the newapplication that you are not using yet. These values are masked when displayingin an inquiry program or printing on a report (excluding the audit log). A report

.- -----'"~writet or ODBC-connectionwQuld display the actual values which may be asecurity concern.4) In the System Administration Menu, there is a program which allows you to select

a single master, select any or all fields of the master file, add some selectioncriteria, and output to a csv formatted file for use by a spreadsheet. I'm sure noemployees at the city know how to use this program. It is located on the SystemAdministration Menu, and Mr. Hupp is probably the only one with access to it.

I hope this clarifies some of the issues brought up in the document, and some of thecapabilities of the system. If you have any other questions, or need training on any of theabove mentioned features, please feel free to contact me.Sincerely,Mark J. JostMJJ:ms

091228 Motion to Dismiss

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