Lawyer: City’s lawsuit illegal

By Zsombor Peter
Staff Writer

GALLUP — A lawyer for Channel 13 reporter Larry Barker is demanding that the city withdraw the lawsuit it has filed against his client for requesting police photos of Roman Catholic Bishop Donald Pelotte. It if doesn’t, attorney Martin Esquivel warns, it will run the risk of a court sanction and fees.

A Gallup police officer took the photos of Pelotte at Rehoboth McKinley Christian Hospital July 23 after the bishop sustained suspicious injuries at his home. The bishop insists he fell down a flight of stairs. But when he arrived at the hospital, the extent of the injuries led an emergency room doctor to suspect assault.

Barker filed an official request for the photos Aug. 1. Trapped between the choice of violating the state’s Public Records Act on one hand and the federal government’s privacy laws protecting medical records on the other, city attorney George Kozeliski filed suit against Barker — and the diocese — in McKinley County District Court Tuesday.

Technically, Kozeliski filed a declaratory judgment, legal jargon for asking the court to decide whether the photos ought to be handed over.“When you have a situation such as this, when you don’t know what to do, you can ask the judge,” Kozeliski said.

Esquivel says Kozeliski has violated the state’s Public Records Act simply by filing the suit.

The act requires a public body to respond to a records request within three days and, if approved, to provide those records within 15. Kozeliski sent Esquivel a short e-mail Monday, within the requisite three business days, simply to acknowledge the request. He filed the lawsuit the next day.

Esquivel says the city attorney should have denied the request first.

“The action of filing a lawsuit without first providing an explanation for the denial of Mr. Barker’s request is a clear violation of the law,” he writes in an Aug. 8 letter to Kozeliski. “Regardless of whether there is or is not proper grounds for the denial, your conduct now creates a separate cause of action under the Inspection of Public Records (Act).”

“We have not denied the request,” Kozeliski said. “That’s why we’re going to court, to find out if we can deny the request or not.”

That’s not good enough for Esquivel.

“You take a stand, make a decision, and convey that back to the person that requested the record,” he told The Independent Thursday. “What you don’t do is run to the Catholic Church and ask, ‘Hey, what do you guys think?’”
Diocese lawyer Luis Stelzner urges Kozeliski not to give up the photos in an Aug. 6 letter to the city attorney, citing the federal Health Inspection Portability and Accountability Act.

“Let me add,” Stelzner’s letter goes on, “that any publication of those photographs, which are extremely graphic and not the kind of photographs that anyone would want others to see of them, would be a violation of Bishop Pelotte’s right to privacy and would serve no purpose but to sensationalize what is a very private matter.”

Based on that letter, Esquivel writes Kozeliski, “it appears to me that the Catholic Church engineered or affected your decision-making process.”

“I made up my own mind,” Kozeliski said, insisting he based his decision more on what the police told him.

According to Stelzner’s letter and the city’s lawsuit, a Gallup officer took the photos without Pelotte’s consent and after the department had closed its investigation, just in case the bishop might change his mind about having fallen down the stairs.

Esquivel said the officer may have taken the photos inappropriately. He wondered if the city’s suit was an attempt to protect itself.

“If the City of Gallup chooses to pursue this lawsuit,” he writes, “then I will predict it will be monumentally embarrassing to those who govern your good city.”

Kozeliski said Thursday that the city was going ahead with the suit.