This post contains the full text of the hand-delivered letter of June 3, 2016, regarding the Rules Violations that have prevented approximately 2,700 pages of Albuquerque BRT/ART Project public records, filed with the federal court, from being made available to the general public.
Of the 2,700 pages, there are evidently approximately 1,000 pages that are alleged, by the FTA, to constitute “environmental” studies done by the City of Albuquerque that support and justify the FTA’s decision to grant a “Catagorical Exclusion” to the requirement of further, even more exhaustive, impact studies regarding the ART Project.
A fair and reasonable evaluation and assessment of the impact study and the reasonableness of the FTA in granting the exclusion cannot be made by the public, if the public records are not made public. As a consequence of this fact, Donald Clayton was required to write the following letter:
June 3, 2016
Clerk of Court
United States District Court
District of New Mexico
Office of the Clerk
333 Lomas Boulevard NW – Suite 270
Albuquerque, NM 87102
Honorable M. Christina Armijo
Chief United States District Judge
United States District Court
Pete V. Domenici United States Courthouse
333 Lomas Boulevard, NW
Albuquerque, NM 87102
HAND DELIVERED DOCUMENT
THIS IS A PUBLIC RECORD
Reference is made to case No. 1:16-cv-00252-KG-KBM; captioned, in part, as it may be deduced from the record, in the attached Exhibit ‘A’.
Reference is also made to: District of New Mexico / United States District Court document http://www.uscourts.gov/court-records, and: United States District Court District of New Mexico Local Rules of Civil Procedure (December 1, 2014).
By such reference the contents herein referenced are incorporated into this communication.
On June 2, 2016, at approximately 2:30 PM, I (hereinafter: “Mr. Clayton”) requested from Court Clerk Staff (hereinafter: “staff”) information regarding the review, and the possible obtainment of copies, of Court mandated submissions of the Administrative Record pursuant to Case No. 1:16-cv-00252-KG-KBM, a public court record.
Pursuant to information contained in Court document #37 in the aforementioned case, the public record is composed of approximately 2,700 pages of information electronically transmitted to the federal judge assigned to the case, and to a select group of legal counsels involved.
In what is believed to be an extraordinary and wrongful procedure, the above referenced information (public court record) was hand-delivered to unknown staff on June 1, 2016, without documentation or identification being recorded by those involved in the event. The form of the hand-delivery was in the form of a physical object, described in document #37 as a “DVD.”
Mr. Clayton requested from staff a copy of the DVD. His request was met with argument by staff, claiming that the DVD was not, or may not be, a public court record. Mr. Clayton was informed by staff that he would not be able to either review the contents, nor obtain a copy of the DVD through staff. Further, Mr. Clayton was instructed to request the desired information from the select group of legal counsels involved. Staff acknowledged that such legal counsel had no legal obligation whatsoever to comply with, or even give answer to, such a request.
After three (3) staff T.O.’s (employee turn overs), Mr. Clayton was introduced to Nicole Gassner, a staff supervisor and fourth staff T.O., Ms. Gassner, who repeated the previously stated staff communications.
Mr. Clayton asked to speak to the Clerk of Court, Mr. Dykman. Ms. Gassner stated that that would not be possible, but records requests had to be in writing and “had to be communicated by written letter.” Mr. Clayton was specifically told that there was no email address for Mr. Dykman, or for the Office of the Clerk.
Mr. Clayton asked Ms. Gassner about the timeliness of a possible reply if a written request was tendered. Ms. Gassner stated that there “were no rules,” but that usually it “didn’t take too long” and it should not be more than “a couple of days.”
Applicable Rule and Law:
District of New Mexico / United States District Court document http://www.uscourts.gov/court-records, states, in relevant part: “Your request can be made via email, or in person.”
The directive further states, “Copy requests, in general, may be completed within 2-3 hours.” Note: Exceptions are made for documents that do not apply to the situation.
It is noted that the Fee Schedule (http://www.uscourts.gov/services-forms/fees/electronic-public-access-fee-schedule) has no provision for any charge for reproducing a “DVD.” The reason is clear, the submission of a non-paper hand-delivered physical object does not comport with the published Rules of the Court pursuant to document filings.
This fact is made clear by United States District Court District of New Mexico Local Rules of Civil Procedure (December 1, 2014); which states, in relevant part: “I SCOPE OF RULES, RULE 1.5 Definitions. (f) “electronic transmission” includes, but is not limited to: facsimile, electronic mail, or other electronic data transmission. (italics, underlining, and bold type added).” A DVD is not, pursuant to FCC regulations, an “electronic transmission.” The DVD was physically hand-delivered, not “transmitted.” [Note: the data sent to counsel originated in Washington D.C., ending in New Mexico. The FCC has jurisdiction over such interstate communications. It is unknown by what Interstate regulated trucking company the DVD was delivered.]
The staff was not remiss in accepting the DVD. Local Rules specifically require (at 10.3 (a)) that “The Clerk will not refuse to file any document because it is not in proper form.” However, the Clerk is required to give a party “written notice” of the deficiency. The assumption is that the notice is timely, but no rules have been identified as to the actual time allotted.
Summary and Complaint:
Staff failed to communicate to Mr. Clayton, proper Rule information; staff did not observe written rules. Most significantly they failed to produce the court documents that staff admitted were in their possession, and had not been deemed, at the time, to be “non-conforming.”
Mr. Clayton is entitled to view a copy of the document submitted, in its entirety, without charge (See: Electronic Public Access Fee Schedule). Mr. Clayton is entitled to obtain an electronic
version of the document for a fee of $3.00. Mr. Clayton is entitled to obtain select copies of the document at the rate of 10 cents per page.
Mr. Clayton herein requests that he be permitted to review the document within 2 hours. Please notify me by telephone: 505 / 842-1—, or by email: email@example.com
It is the information and belief of Mr. Clayton that substantial bad faith by the FTA has caused this dangerous, destructive, illegal, and wanton situation.
The complaint is far too vast, and too important, to be detailed here. It is the intent of Mr. Clayton to address the concerns to the Court legally in possession of the court records, at the place of possession. Mr. Clayton shall request remedial measures and also request sanctions.