A lawyer for Gov. Susana Martinez argued during the first court hearing in SFR’s lawsuit against her that the Republican governor’s office isn’t a state agency. The claim from Paul Kennedy represents yet another eyebrow-raising argument on behalf of the self-proclaimed “most transparent” administration in state history.
SFR filed a court action in September against Martinez, alleging that she violated the Inspection of Public Records Act by failing to turn over documents requested under the law. SFR also accuses her of unlawful discrimination against the newspaper in a campaign of retaliation for unfavorable coverage.
First Judicial District Court Judge Sarah Singleton handed SFR a small victory in a June 25 motions hearing when she instructed the governor's office to turn over records that would help reveal its processes and procedures in responding to IPRA requests.
Just as it appeared the hearing was over, Kennedy made a statement that SFR's attorney, Daniel Yohalem, later characterized as "extraordinary" and "completely contrary to the separation of powers doctrine."
"Our position is that the governor's office is not a state agency," Kennedy said. "The governor is the executive of the state and is a separate branch of government—a different branch of government that, [by] our contention, is not subject to discovery or injunctions at the same level as an executive agency."
SFR's allegations that Martinez violated IPRA aren't the only such claims in court today. Three media outlets, an open-government nonprofit and at least two former officials who worked under Martinez have sued the governor for unlawfully withholding records requested under IPRA.
The cases claim that Martinez broke public records law in responses to requests to review her calendar, travel expenditures of her security detail, phone records and a secret audit of Medicaid providers in the state that has led to upheaval in the state's behavioral healthcare system.
Does this signal a pattern of state government officials making court arguments that chip away at the Inspection of Public Records Act in favor of secrecy?
President-elect of the New Mexico Foundation for Open Government Greg Williams tells SFR the organization believes "the governor's office is subject to IPRA just like any other part of the executive branch and the same legal standards apply to IPRA requests to the governor's office as they do to any other public entity."
Kennedy, a former state Supreme Court justice, invoked constitutional arguments in responding to an Associated Press lawsuit against the governor.
In that case the governor's office contends that a District Court forcing Martinez to turn over documents must consider due process clauses in the US Constitution, which says that a person cannot be deprived of life, liberty and property by people or states without proper legal procedures. Court enforcement of IPRA must take into account the governor's Fourth Amendment rights, Kennedy also contended. That amendment prohibits unreasonable searches and seizures.He argued that the AP would need to secure a search warrant to examine the documents.
More startling about the claims is that they work against Martinez' contention that her administration is transparent; a thick plank in her 2010 campaign platform was that she would herald in a new era of openness in state government. Once in office, she pushed for the inclusion of state employee salaries on an online database called the Sunshine Portal, a move cheered by media outlets and other transparency advocates.
Enrique Knell, the governor's spokesman, sent SFR a statement that Martinez has "in fact" led "the most transparent administration in state history."
Knell noted that she signed a law requiring agencies to deliver records electronically when possible, had her staff videotape legislative proceedings over the objection of lawmakers and requires more appointees to file regular financial disclosure forms.
"The previous administration," he writes "didn't even come close in terms of transparency."