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John Lang


What every New Mexican needs to know about Emailgate

June 18, 2013, 12:00 am


Like most scandals, Emailgate started small.

One year ago, the media reported on a single email, sent by Public Education Department spokesman Larry Behrens to top staffers in Gov. Susana Martinez’ administration. Attached to the email was a list of  non-union teachers in New Mexico.

Behrens claimed he was responding to an official public-records request filed by Jay McCleskey, the governor’s top political advisor. But instead of emailing the list to administration staffers’ public email accounts, Behrens sent it to their private accounts. PED Secretary-designate Hanna Skandera then forwarded the list to the governor on her campaign email account,

At first, it seemed to suggest that Behrens and others were doing political work on state time. But Behrens insisted that his email was official business. (Still, while state agencies are not required to create new records where none exist, in this case, they did.)

That raised a different question, though: Why were state officials doing public business over private email? And how often were they doing it?

Frequently, it turned out. Last June, SFR and other media outlets received a cache of leaked emails, all with some connection to the Susana2010 web domain. The leaked emails revealed that public officials frequently used private email to communicate about both public business (redistricting and judicial appointments, for instance) and political issues like campaign contributions and election strategies. They showed the machinations behind a lucrative racetrack and casino lease awarded to the politically connected Downs at Albuquerque; they laid bare the level of influence people like McCleskey and other non-government staffers have over the administration.

The “why” question, however, remained unsolved. Behrens claimed his decision to send the teacher list over private email was simply a mistake. But then a former top staffer claimed, under oath, that the Martinez administration had a policy of using private email in order to keep emails from being uncovered through public-records requests.

SFR decided to investigate. Last June, we filed a public-records request with the governor’s office for all emails sent and received by the private email accounts listed on Behrens’ email on three dates (including the date of Behrens’ email). Since Behrens had already said his email was public business, we reasoned, the governor’s office would have to provide it.

They didn’t. SFR later filed a formal complaint with the attorney general’s office, which enforces New Mexico’s Inspection of Public Records Act. The AG’s office has maintained that any email concerning public business—regardless of whether it’s sent over public or private email—is a public record. However, it’s unclear whether records custodians in the Martinez administration actually search state officials’ private emails when gathering public records, or simply take their word for it that no public business has occurred.
Moreover, after a statement last summer that the emails weren’t public record, the administration has declined to comment on the content of them, chiefly on the grounds that they were stolen.

That’s where the story takes an intriguing twist. Last month, the US Attorney’s office indicted Jamie Estrada, Martinez’ former interim campaign manager, on allegations of illegally “intercepting” emails intended for the Susana2010 accounts of Martinez and her top staffers, and then lying to federal authorities about it. This week, Estrada pleaded not guilty; in a statement, his attorney said the government’s case has “legal and factual problems.”

But Emailgate isn’t just about a disgruntled former campaign staffer allegedly stealing emails. It’s also about the changing definition of transparency.

The question of what’s public and what’s private when it comes to email extends far beyond New Mexico. Two weeks ago, the Associated Press published an investigative report exposing the practice, among top officials in President Barack Obama’s administration, of maintaining “secret” email accounts for the public business that they don’t want nosy citizens or reporters to see.

The level of secrecy to which government officials seem to believe they’re entitled—regardless of whether they work under Republicans or Democrats—is particularly troublesome in light of recent revelations that the US Department of Justice and National Security Agency have seized the phone records and meta-data of American journalists and civilians. As SFR has often (admittedly, probably too often) emphasized, public-records laws exist to keep government officials accountable to the taxpayers who pay their salaries. When government sees its business as private rather than public—and interprets public-records laws accordingly—a key tenet of democracy is compromised. As The Economist warned in a briefing on the NSA programs, “Governments acting outside public scrutiny are not to be trusted...Our point is not that America’s spies are doing the wrong things, but that the level of public scrutiny is inadequate and so is the right of redress.”

In New Mexico, public scrutiny of official business is limited by how state officials interpret IPRA. Take, for example, two recent public-records requests. In the first, SFR requested all communications—email, text, written or otherwise—between McCleskey and Martinez since she took office in January 2011. In the second, we asked for all text messages, emails and other correspondence sent or received by the governor on her cell phone. In both cases, the Martinez administration claims no records exist.
Access to public officials is similarly limited—even those, like governor’s office spokesman Enrique Knell, whose $80,000  salary is paid with taxpayer dollars.

Knell did not respond to SFR’s multiple requests for comment on this story. That’s common—and recently, we got a clue as to why. Last week, SFR staff writer Joey Peters reached Martinez on her cell phone and requested a comment on a story about lavish per diem payments to Department of Health employees. Repeatedly, she referred him to Knell.

“Well, Enrique never calls us back,” Peters said.

Her response? “I wonder why.”


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