On any given day, hundreds of thousands of emails shoot into and out of the accounts of New Mexico's estimated 26,000 state employees.
The content of these messages can be as weighty as policy memos that shed light on how the public's business is being done, requests for help and demands for favors. They can be as trivial as a report that glazed donuts are available in the break room.
Deciding which are important enough to keep and which can be trashed presents a challenge. Finding the saved messages later adds another layer of difficulty.
And from the looks of things, state government doesn't have a good handle on the situation. The dilemma is illustrated by what happened last year, when SFR was tracking communication between two key public officials.
One of the players involved was a newly elected state senator who had just finished serving his first legislative session. The other was Gov. Susana Martinez' point-person for working with the state Legislature.
During the 2013 legislative session, Sen. Mark Moores, R-Bernalillo, had publicly made a fuss about a procedural action in the Senate Rules Committee.
His concern? The committee planned to allow Michael Corwin—a well-known political opposition researcher for Democrats and at the time the director of a political committee known for digging up dirt on the Martinez administration—to testify against one of her key political appointees.
"Your decision to grant special treatment to Mr. Corwin is unwarranted," reads a draft of a letter from Moores addressed to committee chairwoman Sen. Linda Lopez, a Democrat from Albuquerque. "I ask that you consider my request to reverse that decision."
Moores' apparently didn't write the letter all on his own. Janel Anderson, the governor's legislative liaison, emailed the draft to him from her government account in a message with the subject line "letter."
But that message wasn't provided by the governor's office in response to a public records request about correspondence related to the hearing. Instead, SFR hunted it down through the state's Legislative Council Service.
Tension over Martinez' assertion that many records kept by her office are protected by executive privilege have been well documented. But the situation goes beyond willful withholding. What if documents aren't retained at all?
As a part of a public records lawsuit filed against the administration in September 2013 by this newspaper, a district judge allowed SFR's attorney to depose the governor's records custodian. In the deposition, conducted in August, the custodian was asked why the exchanges between Moores and Anderson weren't provided to SFR. The custodian, Pamela Cason, replied that the messages weren't important enough for her office to keep.
"These are transitory documents," she said. "There wasn't any final decisions being made in them."
That response illustrates a problem increasingly rearing its head for watchdogs across the country. For the past few years, open government groups have focused on making sure that public agencies treat electronic documents like emails as public record. That's the first step. The second step is to make sure agencies actually keep these records. And it's a step that few seem to be taking.
"More and more I'm getting calls about the Public Records Act," says Susan Boe, executive director of the New Mexico Foundation for Open Government.
Susana Martinez’ successor in the Third Judicial District isn’t immune to her own allegations of mishandling public documents.
Amy Orlando served as district attorney from 2010-2012 as a Republican. Before that, she worked very closely with Martinez in the DA’s office.
This past September, Mark D’Antonio, the Democrat who beat Orlando in the 2012 election, released a report alleging that Orlando’s administration had deleted entire hard drives shortly before leaving office. It all stemmed from D’Antonio’s inability to track emails from her administration that were the subject of a recent public records request.
Orlando, who now serves as the top attorney for the state Department of Public Safety, has aggressively denied the allegations. But even if she did delete them, she didn’t completely succeed.
Scores of sent messages from her office—including ones that D’Antonio alleges Orlando attempted to delete—were backed-up in the Administrative Office of the District Attorneys.
At the very least, they show that Orlando had the idea of deleting some emails. One string of messages in October 2010 show Martinez’ then-campaign manager gathering information from her office to craft a campaign statement for the future governor.
Orlando forwarded Jay McCleskey’s statement to one of the office’s senior investigators.
“Here’s issue!” she wrote on July 12, 2010. “Double delete.”
She's not talking about the law that establishes what is and what isn't a public record, affectionately known as IPRA for the Inspection of Public Records Act. She's instead referring to a different law—with one less word in its title—that makes sure those records don't disappear. Governments need to keep public documents in order for people to see them, she explains.
"It's caught our attention," Boe says. "We're concerned about it."
State governments rarely give guidance to their employees about how to best manage their email software. So says Tanya Marshall, who is in charge of archiving state records in Vermont and also serves as president of the National Association of Government Archives and Records Administrators.
This is particularly problematic, Marshall argues, because so much public business has shifted to email in the past decade.
Before email, government employees would receive physical documents such as letters and memos that could be easily sorted and stored into large files that others could access. Email messages, on the other hand, usually just stay on a handful of computers.
"If you think about email, where else in government do you have one person managing their records that way?" Marshall asks. "It's not getting into a larger file for the rest of state government to know; it's just sitting in some person's email account. "
But this doesn't necessarily mean that New Mexico's records laws are ill-equipped to address public email messages. State Records Administrator Linda Trujillo says that's a common misconception in the Land of Enchantment.
"The definition is really clear," Trujillo says. "It doesn't matter what the medium is. It matters what the content is."
With very limited exceptions, state law defines a public record as a document that, "regardless of physical form or characteristics," relates to public business.
The Public Records Act stipulates how different public documents must be preserved over different periods of time. New Mexico's Administrative Code says that "transitory" emails do not have to be retained, but it defines them as "information of temporary importance in lieu of oral communication" that are "only required for a limited time."
Trujillo explains "transitory" emails by giving an example. If she uses her email account to ask one of her colleagues at the office to find her certain information, several email exchanges between the two of them will likely follow. Only the final message of the conversation between them needs to be saved, Trujillo says, because the thread of messages leading up to it will be kept on the last email.
"I would argue that all the emails prior to that are transitory because they're encapsulated in the final email," she says.
State agencies are supposed to send a request to dispose of records to the State Records Center and wait for permission and instructions. In the last four years, the center received over 70 disposition requests from other government agencies specifically for emails—none of them from the governor's office.
Geno Zamora is a firsthand witness to the sea change in this issue in local government. When he entered public service in 1994 as an assistant to then-Attorney General Tom Udall, Zamora says he typically received 10 to 20 emails a day.
"Emails weren't even a forethought back then," he says. "Usually you were dealing with hard documents."
Now the general counsel for Santa Fe Public Schools, Zamora says he receives about 50 to 100 emails a day.
SFPS works with a separate backup system for all of its staffers' emails. That means Zamora, who gathers and reviews all emails that are requested for inspection by the public, doesn't have to grab the messages from individual employees. Instead, he can access them himself from the school district's IT department.
"Even if I delete an email, it stays in the backup archive," he says.
Not every public agency in the state is set up this efficiently.
The records custodian at the governor's office, for example, simply asks staffers if they have documents related to a request and takes their word for it, according to her deposition with SFR. The state Public Education Department's records custodian says she follows a similar process. So does the state Attorney General's Office, but Records Custodian Richard Russell says he does that as "a courtesy" to the employee whose emails are being requested.
In some cases, Russell says he pulls emails directly from the agency's IT office.
Destroying public documents is a fourth-degree felony. Yet public email retention regulations aren't enforced in many cases.
Each state department must follow state archive laws, and some state agencies, such as the governor's office, have their own records disposition schedules to follow. According to state rules, Martinez' office is supposed to retain electronic communications through the end of her term in 2018.
Melissa Salazar, the acting deputy state records administrator, says that the governor's office has requested extra storage space to store its records.
But whether and to what extent the governor's office actively backs up its staffers' emails is unknown.
When posed with this question, the governor's office spokesman Enrique Knell offered only a terse response via email: "Staff are instructed to follow state regulations regarding email management, including transitory emails."
As she was deposed, the governor's records custodian Pamela Cason denied that her office purges emails. But she also acknowledged that one of the staffers, Janel Anderson, didn't have the specific emails SFR requested just three months after they were created.
SFR's attorney asked Cason if Anderson had deleted her emails to and from Moores.
"I don't have any control over Janel, and I don't—I don't know the answer to that question," Cason said.
Cason was also asked if there was a written policy authorizing her to delete emails. She responded in the negative. As to how long staffers are supposed to keep emails on their servers, Cason said she didn't know.
"I know personally, as many emails as I get on a daily basis, if I didn't erase some emails, I would have thousands and thousands that would make no sense to keep," she said that day.
Part of the problem lies with the fact that some state agencies use Microsoft Outlook for their public email accounts. Space on the Outlook server is limited, which means that employees need to clear their accounts often in order to keep email programs running smoothly on their computers.
Deciding how to save these messages before they're deleted from a user's account is up to each agency.
The Attorney General's Office uses a Gmail system for its public emails, which stores messages for up to a year, according to Russell. Once that year is over, the agency's employees get to decide which emails they want to keep for future archival.
"There's really no way someone can stay on top of every individual's emails," Russell says. "It would be really impossible for somebody to monitor that."
Estevan Luján, the spokesman and records custodian for the state Department of Information Technology, says many believe in error that his department backs up emails from other agencies.
"With my department, I back up all my people's stuff," Luján says. "I'm guessing every custodian has their own policy."
Plenty of public officials have resorted to more cynical measures to deal with the issue: private backchannels that circumvent the records-compliance process. Even before she was first elected governor four years ago, evidence points to Susana Martinez running a network of private emails to conduct public business with her top staffers in the office where she served as district attorney for 14 years.
In an email from July 2010—four months before her election to the governor's office—Martinez tells her DA staffers how they can in touch with her. After giving out a private cell phone number, she lists a new private email address.
"Please do not give it to anyone outside the office," she writes. "My office email has remained the same. My NEW private email is email@example.com."
This message was recovered from the Administrative Office of the District Attorneys, which provides services and technical support for all of the DA's offices in the state.
Martinez is not by any means the only public official in New Mexico to communicate with her staff via a backchannel.
Actions of the mayor of a northern New Mexi
Jesse Chaney, then the Chronicle's managing editor, found private emails between Cottam and the village's fire chief. The same month Chaney published a story about this, the village enforced a measure to put all of its public officials' emails on a public server.
Chaney calls the mayor's practice "fishy," explaining that public emails from government officials have given him stories in the public interest. One such email exchange shed light on why Angel Fire canceled a contract with a company that performed the village's audits.
Journalists like Chaney (and, yes, those of us here at SFR) usually fall on the same side of the issue.
"When it's being conducted on Gmail and Hotmail, that's public business that's not being done in front of the public," he says.
Former Albuquerque-based Associated Press reporter Jeri Clausing makes the same case. Clausing says one example is in email exchanges she recovered that led to stories about Virgin Galactic strong-arming New Mexico officials over the publicly financed Spaceport America.
The spaceport was built largely with the promise that Virgin would lease the quarter-billion dollar facility. But emails that Clausing found through public records requests revealed that the multinational corporation was refusing to use it unless state officials provided more incentives.
"I was able to see what was going on behind the scenes," Clausing says. "[Virgin] was jockeying and objecting to what needed to be done to activate their lease."
The magnitude with which public business is conducted via email arguably gives more people access to how government works than ever before. Clausing, whose been a professional reporter for 30 years, admits that she might not have been able to get to the meat of the Spaceport issue the same way in the 1980s. That's because back then, government negotiations mostly took place in person or on the phone.
The issue also blurs the amount of privacy government employees can reasonably expect to have during the workday, especially in New Mexico, where public records laws cover much more ground than most states.
"People are usually astounded at how broad the scope of the [Inspection of Public Records Act] is," Zamora says. "I say, 'If you have good practices in your emails, you never have to be worried.'"
Specifically, Zamora says he instructs school staff to write emails from their government accounts with the presumption that someone else is always going to see them. Government practices, he argues, are trending toward transparency, and excuses for protecting public emails will only weaken in the near future.
But one thing's for certain: Using private emails for public business and deleting public communications before they can be retained is a threat to true transparency.
Similar private network scandals have surfaced in other parts of the country.
In New York, Democratic Gov. Andrew Cuomo didn't disclose that he and his staffers use the Blackberry Messenger service to communicate. To open government advocates, the revelation was especially troubling given the practical impossibility of tracing these messages.
And Florida Republican Gov. Rick Scott got caught in a related circumstance. The revelations were particularly Kafkaesque given that Scott had just launched "Project Sunburst," an online database of emails from his administration that the public would be able to access at any time. He then meticulously shifted government communications to another channel.
"They quietly set up a procedure where they'd use private emails and text messages," says Mary Ellen Klas, capital bureau chief for the Miami Herald.
Klas says that fishing for Scott's texts and emails from private addresses is especially hard because she has to know they exist in advance. Meanwhile, emails posted on Project Sunburst remain mostly worthless.
"It's actually made transparency worse," Klas says of Sunburst. "It's left the impression that communication is out in the open, when in fact it sent the real communication underground."
It's clear that the state's training and accountability on email practices are not universally effective. Trujillo says her office plans to redouble training efforts on those fronts along with its pending rollout of a new database for email retention.
When it comes to archiving, different time rules apply to different documents. Attorney Charles "Kip" Purcell, who sits on the board of the New Mexico Foundation for Open Government, criticizes the state's many rules around archiving records as "byzantine" and "voluminous."
"The question is how long you have to keep it," Purcell says. "That is something we're struggling with."
Other states have extreme retention policies. As reported recently in Stateline, many open government advocates look up to North Carolina, where all government emails, no matter how seemingly pointless, must be saved for five years. The flipside of that is South Dakota, where the majority of messages need not be kept at all.
New Mexico is at work creating a large database to capture government email messages. The database, called the Centralized Electronic Records Repository, will be accessible to employees of various agencies across the state from their computers.
Workers will be able to organize and archive their emails by dragging them from their inbox to CERR. The idea is to simplify keeping track of public emails as much as possible.
A launch date for the database, however, is still not yet determined, says Trujillo. The longer it takes, the longer the greater issue with public emails remains unsolved.
And even once New Mexico finds more footing with keeping government emails away from secrecy, it isn't nearly ready to deal with capturing electronic documents like text messages, which are harder to trace.
After being caught with using a private email network, Martinez issued an order to all state employees to do public business on government email accounts. Yet, use of private email by officials isn't technically illegal, leaving open the possibility that officials are still conducting the public's business in the shadows.
When she was still district attorney, Martinez gave her staffers access to her Blackberry PIN number, which allows people with only Blackberry smart phones to send secure messages that are hard for others to track. This is the same messaging system that got New York's governor under fire.
"Please enter my PIN # in your contacts so we can communicate via Blackberry Messenger," Martinez wrote in July 2010, just four months away from her historic election as the nation's first Latina governor. "Please feel free to always contact me."
As governor, her administration is still facing four lawsuits, including the one from SFR, alleging that it violated public records laws. But Clausing laments that not enough press outlets are holding Martinez accountable.
"I find it very disheartening that the mainstream media is not being more aggressive in finding this stuff, which is why we're seeing less and less transparency in government," Clausing says. "Nobody is challenging the Martinez administration."
An earlier version of this story misstated how the governor's office requested for records storage space.