It’s plain to any reader of Bliss T Blake’s Jan. 6, 2006 letter to the New Mexico Attorney General’s Office that the San Juan County resident is steamed. According to Blake, he was kicked off his local ditch management board because he wanted to tape-record the proceedings.
“The board that is now running the show has not been forthcoming,” Blake writes. “I have tried to get them to advise me as to when their regular meetings are and they refuse to tell me. I have asked them to post their meetings and they won’t.”
Five months passed before the Attorney General’s Office (AG) sent the Eledge Ditch Board its first letter of inquiry. The board ignored that letter, as well as a faxed follow-up. It finally responded a year later, by phone, to tell the AG that Blake had passed away.
That was how it went down when Patricia Madrid was attorney general. Her successor, Gary King, campaigned in 2008 on stricter enforcement of open government laws, which fall under the AG’s domain.
Those laws include the Open Meetings Act (OMA), which guarantees citizens’ rights to witness political meetings, and the Inspection of Public Records Act (IPRA), which protects citizens’ rights to view documents produced by government agencies.
Once in office, King’s staff even wrote a posthumous letter of chastisement to the Eledge Ditch Board—15 months after Blake filed his complaint.
Leonard DeLayo, the executive director of the New Mexico Foundation for Open Government (FOG), says for the most part King has held true to his promise to champion open government.
“I think the King administration is a lot more aggressive than the Madrid administration was in dealing with matters,” DeLayo tells SFR. “Gary does seem to believe in IPRA and OMA far more than Patsy did…”
Nonetheless, DeLayo agrees with critics that the attorney general “is very slow in coming to determinations.”
Those determinations refer to complaints the AG receives when an individual (or group) believes the OMA and IPRA haven’t been upheld, as in Blake’s case.
Last week, Gov. Bill Richardson signed a bill into law that allows citizens to send IPRA requests by email (King supported the measure). DeLayo says allowing electronic public records requests could increase the number of overall requests filed.
It remains to be seen if digital technology will speed up the AG’s response time to such complaints. Right now, it takes between three and six months to resolve the complaints.
This prolonged time frame occurs despite the online database King’s administration ushered in to allow constituents to track the progress of OMA/IPRA complaints.
As of April 1, 2009, the database contained a total 151 OMA/IPRA cases, 55 of which were listed as still pending. Among those open cases, 26 were more than a year old, seven were more than two years old and one was more than three years old.
Presented with the data, Communications Director Phil Sisneros claimed all of the “outstanding” cases were actually closed. Sisneros then granted SFR access to the state’s internal complaint database, which shows that the entire online site is outdated and inaccurate.
“Keep in mind that we did a different thing in terms of trying to corral all these together so people could go online and track their complaints,” Sisneros, who takes credit for the site, says. “Is it a perfect system? I doubt it. But it was better than what we had before.”
According to the internal database, the office has logged 131 IPRA complaints and 101 OMA complaints since 2006. Of those, SFR was only able to identify approximately 20 in which the AG determined an agency had violated the law. Although the office has the authority to level fines, King has not penalized a single agency for OMA/ IPRA violations since taking office.
“The attorney general’s office is worthless,” Diogenes’ Six Blogger Ched MacQuigg (ched-macquigg.blogspot.com) says. “There is no way to follow your complaint and they just seem to disappear.”
MacQuigg has four IPRA complaints on record: two against Albuquerque Public Schools and one each for the Bernalillo County Sheriff’s Office and the second judicial district attorney.
“It is always the same story: feigned ignorance of the law, followed by endless exchanges that always take the maximum time allowed by law,” MacQuigg says. “The only recourse is to sue them yourself, in which case you’re up against a fleet of lawyers who are working on the public dime to litigate against the public interests.”
Private investigator Eric Griego chose the trial route. In 2007, he won a $117,500 settlement from the New Mexico Taxation & Revenue Department in an IPRA case. Griego claims the attorney general has failed to act on several other IPRA complaints he filed.
“All my [complaints] are more than a year old and yet I have not received the records and the attorney general has failed in its duty to enforce,” Griego says. “I thought that, after losing the largest public records lawsuit in the state’s history, the [Taxation & Revenue] department would take inspection requests seriously. That’s clearly not the case.”
Zachary Shandler, deputy director of the AG’s Civil Division and the assistant attorney general who handled Griego’s cases, initially told SFR he had closed all Griego’s cases after the detective sent a letter withdrawing his complaints. Shandler even closed an unrelated complaint against the Bernalillo County Treasurer’s Office—even though his office had already determined there had been a violation of the law.
Griego provided SFR with evidence that his letter only withdrew two of several open complaints. After a second look at the records, Shandler told SFR he would be willing to reopen both the Taxation & Revenue Department and Bernalillo County Treasurer’s Office cases.
Private investigator Robert Homic says he’s run into similar problems with the complaints he’s filed against the New Mexico Private Investigator and Polygraph Board, a division of the New Mexico Regulation and Licensing Department. In his case, the attorney general closed the case before investigating evidence that RLD had destroyed records rather than comply with IPRA.
“The whole ‘investigation’ felt like a big cover-up,” Hamic tells SFR.
But some constituents are extremely satisfied with the AG’s performance, including Robert Stearns, a volunteer with Verified Voting New Mexico, who filed several requests for ballot box security information with the Office of the Secretary of State.
“We had asked for the records from the secretary of state and got no response,” Stearns says. “So, we went to [FOG] and they advised us to go to the attorney general and, in all these cases, the attorney
general came through…They went to bat for us with the state officials in these departments we were dealing with, and they did an excellent job.”
Most IPRA cases are closed once a complainant receives the requested documents
or, with OMA cases, when a government body holds a do-over open meeting. However, that same complainant can receive significant damages—up to $100 per day—but only if the case is filed in civil court before the agency remedies the problem.
Complainants aren’t likely to see either the AG or FOG pushing for restitution. DeLayo, who took over at the foundation after the 2007 death of its founder and executive director, Robert Johnson, says he’s less litigious than Johnson was.
“We’ve tried to become more of an educational institution in advising people in advance so that they don’t violate the law,” he says.
DeLayo adds that FOG hasn’t filed suit since he was appointed its director in 2007.
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