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Mark Woodward

Three Days in Court

Press access, strength of state open-records law are at issue in SFR v. Gov.

April 5, 2017, 12:00 am
By SFR

It’s been over three years since SFR filed a District Court lawsuit against Gov. Susana Martinez alleging her office discriminated against the newspaper and violated the state’s open-records law. Last week, on March 29-31, we finally got our day(s) in court. Now it’s time to wait some more as lawyers for both sides await a final court transcript, draft and file written closing arguments, and wait for the judge to rule. Here are highlights from our coverage in the courthouse from independent Albuquerque-based journalist Marisa Demarco:

Judge Sarah Singleton tells the governor’s private attorney to slow his roll.

 

Day 1 ‘The Journalism Racket’

The first day in court featured the governor’s high-powered contract defense lawyer attacking the credibility of SFR’s journalists, suggesting they were not precise, not knowledgeable, not prepared and not invested in the profession.

“How long have you been in the journalism racket now?” lawyer Paul Kennedy asked former Santa Fe Reporter staff writer Joey Peters, prompting chuckles in the courtroom. Kennedy used the term “racket” several times to describe the profession.

Peters testified about a brief 2013 phone call with the governor. During the call, Peters told Martinez her spokesman wouldn’t reply to his requests for comment. She replied: “I wonder why.” The comment, Peters said, was sarcastic.

Alexa Schirtzinger, former SFR editor, testifies that the paper’s access was “cut off.”
The governor’s recalcitrance and tone in the call signaled to SFR’s staff that its increasingly frosty relationship with the Martinez administration—brought on, the newspaper contends in its lawsuit, by critical coverage of the administration—could not be salvaged. So the newspaper filed suit.

SFR was known as an investigative newspaper and aimed to get at the “why” behind a story, as opposed to simply covering the news of the day, former editor Alexa Schirtzinger said from the witness stand. The paper’s policy was to always ask for comment on any story that pertained to Gov. Martinez’ administration and officials’ activities.

Responses to those requests came consistently through the early part of Schirtzinger’s term as editor, even if Martinez’ officials got back to journalists with a “no comment.” But then, in 2012, the paper published a year-end cover story that emphasized the hypocrisy of the administration’s secrecy.

After that article, SFR stopped receiving responses at all, Schirtzinger testified. “We certainly had the feeling that we were being completely cut off.” This not only contributed to an erosion of the paper’s credibility, but “readers weren’t able to get as full of a story that we wanted to get to them,” Schirtzinger said.


Day 2 The Governor’s Message

A former spokesman for Gov. Susana Martinez testified that pushing her message, not responding to inquiries from journalists, was his top priority.

Enrique Knell was Martinez’ public voice between 2012 and April 2015. During questioning, he said responding to media inquiries “was a small part of [his] job.” The rest of his job, he testified, was conveying the governor’s message to the people of New Mexico. Knell said he chose which reporters to respond to based on which ones best carried what the governor wanted to talk about on a given day.

Enrique Knell was paid $80,000 to speak for the governor—but not to everyone.

He testified about an email comment he sent to news organizations after word of SFR’s lawsuit spread in 2013: “It’s not a surprise that a left-wing weekly tabloid that published stolen emails containing the governor’s personal underwear order would file a baseless suit like this.”

On the stand, Knell said he referred to the newspaper as “left-wing” because the lawsuit “came out of left field.”

Kennedy spent the day trying to prove SFR was inferior to other news organizations and also that Knell was often too busy to respond. “Do you give priority to the governor’s message? Or do you give priority to what some weekly tabloid wants to know?” Kennedy asked.

“I give priority to the governor,” said Knell, who was paid an $80,000 annual salary by New Mexico taxpayers to speak for Martinez.

Kennedy showed that SFR filed 23 Inspection of Public Records Act requests in 2013—the most of any news organization in the state that year. SFR journalists have said in interviews that they increasingly turned to IPRA requests because they were not receiving responses from Martinez staffers.

One of SFR’s attorneys, Daniel Yohalem, asked Knell about instances when he didn’t respond to SFR journalists’ emails and phone calls. Yohalem also admitted into evidence multiple emails from Knell offering comment to other news organizations on topics about which SFR had inquired. Yohalem asked whether Knell would ever get back to SFR in the months after they covered the Martinez administration’s use of private email.

“I know that in that time, on various issues, I did respond to the Reporter on a case-by-case basis,” Knell testified. Yohalem pressed him to remember an instance. He couldn’t. Yohalem also showed emails with news tips Knell sent to other news organizations without, it seemed, ever being asked a question.

SFR’s case hinges on the idea that when government officials get picky about which media outlets they communicate with—and when they blacklist news organizations that are critical of the government—they’re trying to influence what the press reports.


Day 3 Size Matters

Testimony ended with Mark Zusman, who co-owns SFR and two other weeklies, saying all three prioritize the watchdog function of journalism.

Mark Zusman, co-owner of SFR, says the press is “standing in the way of tyranny.”

“We strongly believe that the most important thing standing in the way of tyranny is a truly independent press that understands the watchdog role,” Zusman said from the stand.

Kennedy spent much of the trial trying to paint SFR as an insignificant entertainment tabloid. Zusman testified that the bulk of the paper’s resources are devoted to news as opposed to entertainment.

You can’t do investigative journalism without source documents, Zusman said. When he and the newspaper’s staff decided to sue Martinez in 2013, he wasn’t sure whether they would win or lose, he said—but he knew it was a fight worth waging.

“Is this a government of the people, by the people, for the people?” Zusman said in an interview in the courthouse hallway. “Or is it simply for the ruling class who’s in power right now, who can determine what information they want to give to which reporters, and who can show favoritism depending on the coverage?”

The lawsuit alleges the governor’s office doesn’t have an adequate method for handling public records requests. Former records custodian Pamela Cason testified that it would not have been humanly possible to search each employee’s email herself when seeking records to fulfill a request. The way she ensured compliance was to “instill the fear of God into the employees that you have to respond to these in a timely manner.”

Before she left the stand, she testified that she still doesn’t keep a log of IPRA requests as they come in.

Gov. Martinez’ current spokesman, Chris Sanchez, was questioned about a tweet he posted following a story written by former SFR staff writer Justin Horwath for The Santa Fe New Mexican, where Horwath works now: “Embarrassing. Reporter should have done his homework. No surprise given his previous ‘reporting’ for liberal tabloid.” From the stand, Sanchez testified that when he said “tabloid,” he meant the size and shape of the newspaper.

SFR Editor and Publisher Julie Ann Grimm said if the newspaper receives a judgment in its favor, it will send a message to elected officials that “you can’t, as a public official, pick and choose which members of the media you are going to communicate with.”

And if it doesn’t break SFR’s way? “Although we like to think our place in the journalism landscape in New Mexico is important,” Grimm says, “it’s true that we’re not as big and well-funded as the Albuquerque Journal, for example. So if it’s OK to ignore small media organizations, that’s dangerous.”

Yohalem, who represents SFR, said, “We should not have had to go to court to resolve these issues. We should have been able to sit down with the governor’s office and work this out,” he said. “I think it’s going to take a court case, and maybe ultimately a change in government, before we’re going to see improved relations with media.”

Yohalem took the case pro bono; Kennedy did not. Kennedy was contracted for more than $500,000 to represent Martinez, but the governor’s administration has refused to turn over his billing records.

When asked about his fee after the trial, Kennedy said, “You’ll have to contact the governor’s [communications] people.”

Even though her office employs no fewer than four staff lawyers, the governor hired Paul Kennedy, left, to fight SFR’s team, led by Daniel Yohalem, right.


 

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