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Gov. Susana Martinez
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Did Martinez Campaign Use Government Resources for Oppo Research?

SFR probes allegation that law enforcement database was misused

April 17, 2014, 8:20 am
By Justin Horwath
The most serious allegation in the new Mother Jones profile on Gov. Susana Martinez isn't the soundbites of Martinez wondering "what the hell" the Commission on the Status of Women does all day, referring to her Democratic opponent as "that little bitch" or implying that teachers are overpaid. 

It's a paragraph tucked in the middle of the profile that has gotten little attention: 

Martinez's crew saw enemies everywhere. A former staffer recalls the campaign on multiple occasions sending the license plate numbers of cars believed to be used by opposition trackers to an investigator in Martinez's DA office who had access to law enforcement databases. In one instance, a campaign aide took a photo of a license plate on a car with an anti-Martinez bumper sticker and emailed it to the investigator. "Cool I will see who it belongs to!!" the investigator replied.

Depending on the exact circumstances, using a federal law enforcement database to conduct political research on an individual constitutes a federal crime under a US computer fraud statute. Violators of the statute could face a year of imprisonment, fines or both for each unauthorized use—for each unlawful query in a federal law enforcement database. 


SFR has been unable to verify the allegation in its own investigation because a state agency destroyed the relevant records and a federal agency would not turn over records to confirm or deny it. 

We first turned to the National Criminal Information Center database.

NCIC, maintained by the FBI, is a sprawling law-enforcement database that allows tens of thousands of agencies across the nation to conduct various types of background checks during the course of a criminal investigation. It allows, for instance, police in Santa Fe to check whether a suspect officers apprehended has an active warrant in another state. A criminal's entire history might be found in an NCIC profile, and law enforcement officials must comply with strict requirements in conducting queries through the database. 

Police agencies and district attorneys offices across New Mexico use the database regularly. Martinez, who before becoming governor headed the Third Judicial District Attorney's Office, knows this well. From Jan. 1, 2009 to Jan. 1, 2011 the Third Judicial District Attorney's Office ran 7,013 queries through the database, according to data maintained by the FBI. Exactly 138 of those queries were checks on motor vehicles, according to the data obtained through a Freedom of Information Act request.

SFR gave the FBI one license plate number in which the campaign allegedly developed an interest, and a five-day time frame when someone allegedly ran the plate number through the FBI database. But the FBI did not turn over information.

"Based on the information you provided, we conducted a search of the Central Records System," the FBI wrote in its response. "We were unable to identify main file records responsive to the FOIA."

The letter also notes that "Congress excluded three discrete categories of law enforcement and national security records from the requirements of FOIA," adding: "This response is limited to those records that are subject to the requirements of the FOIA."

Information exempt from disclosure under FOIA include documents whose disclosure might invade someone's personal privacy and information that could disclose techniques and procedures for law enforcement investigations. The FBI, in standard practice, didn't confirm or deny the license plate query took place or whether it considered that query exempt from disclosure. 

In a separate request that sought to inspect all NCIC queries during part of the campaign, the FBI only turned over aggregate counts on the types of queries the DA's office ran, motor vehicle checks among them. 

The New Mexico Department of Public Safety, which oversees local agencies' NCIC terminals across the state, refused to turn over similar information after various public-records requests over a 6-month period. DPS eventually said it was only required to maintain NCIC transaction data for a period of three years. "The information being requested...has been purged," DPS wrote.

Officials in the Third Judicial District Attorney's Office also may access license plate information through the FBI's Criminal Justice Information Services system. 

Generally citizens cannot trace identifying information on someone with just a license plate number.

In 1994, the Drivers Privacy Protection Act became a federal law. On the House floor in 1993, Rep. Jim Moran, D-Virginia, an author of the bill, cited how crimes like robbery, murder, theft and stalking were aided by criminals who obtained personal information through motor vehicle records such as license plates. The act prevents state motor vehicle departments from giving out personal information on drivers to anyone not authorized to see it. 

Officials with access to law enforcement databases are restricted in using those databases only in the course of official duties. Sometimes abuse occurs. In 2013, an New York Police Department officer faced federal charges for unauthorized use of NCIC for accessing the database to compile dossiers on women  "that listed their birthdates, addresses, heights and weights," the Associated Press reported.

 In 2007, the US government charged Cory Voorhis, a Colorado-based Immigration and Customs Enforcement special agent, with unauthorized use of the NCIC database.  The US charged Voorhis after the state's Republican gubernatorial candidate Bob Beauprez ran a campaign ad that contained information from NCIC about how Beauprez' democratic opponent "plea-bargained a case against illegal immigrant and alleged heroin dealer Carlos Estrada Medina," the Denver Post reported, "who was given probation and later arrested on suspicion of sexual abuse on a child." Beauprez lost the race and a jury later acquitted Voorhis on all counts.

DPS did turn over data showing that ten officials working in the Martinez DA office were authorized users for its NCIC terminal. Kip Scarborough was not named as an authorized user, although records show he was listed as a "senior investigator" in the office. After being elected governor, Martinez appointed Scarborough to the Juvenile Justice Advisory Committee. The committee advises the Children Youth and Families Department.

Scarborough declined multiple requests for an interview for this story. Asked if he ran license plates for Martinez's gubernatorial campaign, he responded in a text message: "The claim is false!!!"

Martinez issued a broad statement Tuesday criticizing the Mother Jones report, but her top political advisor Jay McCleskey declined to answer specific questions from SFR about the license plate allegations.



 

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