Keep Combing the Desert

In a court-mandated response to a now six-year-old records request from the Santa Fe Reporter that will likely be used to define the term "Pyrrhic victory," Gov. Susana Martinez' office says it didn't find any emails involving public business on her old susanapac.com email account.

Go figure.

When state District Court Judge Sarah Singleton ruled last month that the governor broke public records law in three instances, she ordered Martinez and her chief of staff, Keith Gardner, to search their email accounts from her political action committee to see if there were records responsive to a 2012 request by the paper for emails from three specific dates that year and in 2011.

In a court filing last week, Pamela Cason told the court that she'd attempted to search both email accounts with Gardner and then Martinez in early January. Cason is a legal assistant in Martinez' office. In Gardner's case, she says he told her it wasn't possible to do a search because he didn't have the password to his account and even if he did, he didn't think the account still existed.

"The susanapac.com email accounts are administered by a private organization that is not a party to this lawsuit or a part of state government," Cason's statement reads. It appears to imply that the governor's staff was making every effort to comply with Singleton's order.

The judge left no doubt about how she viewed emails, writing, "if susanapac or a personal email was used to communicate about public business, the email was a public record."

Cason reported that the administrator said Gardner's account no longer existed and "had not existed for quite some time." Using an internet search for the domain administrator, SFR was able to determine that the governor uses a Jacksonville, Florida-based company named Perfect Privacy, LLC to administer the website, which is still active.

Judges have a lot of power, but so far, none has been able to turn back time. The order underscores the dual nature of the state's Inspection of Public Records Act. While the law says a public agency or official has to release most public records with a few narrow exceptions, the penalties for breaking it are often light, and the remedy usually has to come through a court filing, which can take years. SFR sued the governor in 2013. By the time the case was decided in December 2017, it seemed unlikely any of the emails SFR originally sought would still be maintained by the governor or her staff.

While Gardner's susanapac email account wasn't extant, the governor's apparently is. The next day, Cason told the court, she "personally witnessed" the governor search her account first chronologically, scrolling through the account until she found the dates, and then specifically for emails from each date. Finding nothing, Cason said, she had no need to determine if any emails from those dates contained public information.

In Gardner's case, Cason took care to explain that the office had reached out to the private organization (Perfect Privacy, LLC) that maintains the governor's susanapac.com account, but she did not make any special mention of any extra effort made to search the governor's account. It appears from Cason's statement that the search took a matter of minutes.

In 2012, Cason had initially asked SFR for more time because the request for emails from the three days was "broad and burdensome."