On Wednesday, the Legislative Council Service provided SFR with relatively few of the legislative emails sought in a public-records request filed last Friday. The LCS says the rest of the emails were “exempt from disclosure,” even though the response was sent before lawmakers approved a rule effectively exempting them from public-records reqeusts.
SFR published an article this week on how House Concurrent Resolution 1, sponsored by House Minority Leader Don Bratton, R-Lea, and House Speaker Ken Martinez, D-Cibola, will likely limit the public’s access to lawmakers’ emails and other written communications.
Updated 8 am Thursday, March 14: The Senate approved the rule late Wednesday night, on a vote of 39-1. State Sen. Pete Campos, D-Colfax, was the only senator to vote against it. In the House, state Rep. Brian Egolf, D-Santa Fe, along with 15 other Republicans and Democrats, also opposed HCR 1.
On Friday, March 8, SFR submitted to LCS a public-records request for “all emails concerning public business sent or received by” Bratton and Martinez through their “public and private email accounts on March 7, 2013.”
Earlier that same day, Martinez told the House Rules & Order of Business Committee “there are times when I’ll get a thousand emails a day.” On March 10, during a House debate on HCR 1, Bratton said he has received “hundreds, if not thousands, [of emails] in a 24 to 48 hour period.”
John Yaeger, Assistant Director for Legislative Affairs at LCS, responded to SFR’s request on March 12. Eight emails “are responsive to your request,” five records are available “immediately,” and three are “exempt," he writes.
At the March 8 committee meeting, Bratton said “The first time I get a request for my emails, it’s probably going to court, because I won’t release them.” LCS did not provide SFR with any emails that belonged to Bratton.
Yaeger writes LCS “reviewed all the emails received or sent on March 7 by” Martinez and Bratton. They determined most “are not public records because they do not relate to public business…or were not used, created, received, maintained or held by or on behalf of a legislative body pursuant” to the Inspection of Public Records Act.
HCR 1 says while the Legislature itself is a public body subject to IPRA requests, individual lawmakers can’t act on its behalf—and hence, aren’t subject to public-records requests in the same way.
Yaeger also cites a state law about confidential legislative requests and the Speech or Debate Clause in the state constitution to explain why three emails could not be shared with SFR. HCR 1 says the Speech or Debate Clause exempts legislators from requests for “information.”
“Neither the director nor any employee of the council service shall reveal to any person outside of the service the contents or nature of any request or statement for service,” state law says, unless the legislator making the request gives permission.
John Hyrum Martinez, State Records Administrator, tells SFR these lawmaker requests submitted to LCS remain confidential for 75 years.
“It is unethical if not illegal to restrict public business from public scrutiny,” Meredith Machen, League of Women Voters of New Mexico Vice President, tells SFR. Taxpayers pay millions for legislative expenses, but legislative requests receive “complete confidentiality," she says.
The Speech or Debate Clause, according to recent analysis by the Attorney General, grants lawmakers immunity for things they say and votes they cast during formal legislative proceedings, but “does not appear to protect public records created, maintained or held by legislators or legislative aides and employees from disclosure.”
The courts could “rule relative” to the broadness of this clause, Bratton tells SFR. The HCR 1 language could be “brought before the judiciary for the final determination on constitutionality.” Everything the legislature does is “subject to challenge,” he says.
Gwyneth Doland, Executive Director of the New Mexico Foundation for Open Government, tells SFR she has not heard of IPRA responses from LCS mentioning the Speech or Debate Clause. She also says NMFOG and the AG may "end up in a lawsuit" against HCR 1.
State Sen. Daniel Ivey-Soto, D-Bernalillo, tells SFR he expects the Senate to vote unanimously for HCR 1 late tonight. Yesterday, the Senate Rules committee sent HCR 1 to the Senate floor, without ever voting on it or allowing any public comment.