If a document isn't provided in a public-records request, does it still exist?

Last week, Gov. Susana Martinez scored points with transparency advocates when her office, after being told by a district judge to remove public employee names and salaries from the state's Sunshine Portal, posted them on a different web page. It's an example of her follow-through on a key campaign promise: to make state government open and accessible to the public.

But her office hasn't always followed through on that pledge, especially when it comes to public records requests. On June 20, shortly after revelations that her office was discussing public business on private email accounts, SFR requested emails from the private accounts of Martinez, Chief of Staff Keith Gardner, Deputy Chief of Staff Ryan Cangiolosi and Communications Director Scott Darnell.

Since then, Martinez has issued an order requiring all state employees to use public emails when conducting public business. But questions linger about the extent of her office's private email network. Until the Legislature tackles the question of whether private emails discussing public policy are public record—which it will likely do in next year's session—the only way to find out is through public records requests.

To make things simple, SFR picked just three dates for its Inspection of Public Records  Act request: Aug. 17, 2011; May 2, 2012; and June 13, 2012. Each date had a purpose:

—In a widely circulated email from Martinez' Susana PAC account, she wrote that Aug. 17, 2011 was the deadline for answers to questions she had about the Corrections Department.

 —On May 2, 2012, Public Education Department spokesman Larry Behrens wrote an email to the Susana PAC accounts of Gardner and Darnell—along with others including top Martinez advisor Jay McCleskey and PED Secretary-Designate Hanna Skandera—that included a list of nonunion teachers. (Susana PAC is the governor's political action committee.)

—On June 13, the Santa Fe New Mexican reported on Behrens' email, marking the first published news story about the private email network in the governor's office.

SFR's records requests were made after consultation with the New Mexico Foundation for Open Government, which takes the position that private emails discussing public business are public records. On July 5, 11 days after she acknowledged receipt of SFR's records request, Records Custodian Pamela Cason wrote, "due to the broad and burdensome nature of your request, the Office will need additional time to respond."

A month went by and SFR received nothing, not even an update.

On Aug. 7, after again consulting with NMFOG, SFR sent an email to Cason asking for an update on the records request. One week later, Cason replied with just one document­—an email from Phil Parker, a former Albuquerque Journal reporter who's now with the liberal, Martinez-critical Independent Source PAC. The email, to Darnell's Susana PAC email account, is simply a request for an interview with Martinez.

Cason didn't inform SFR that the governor's office was withholding any documents, which it is allowed to do under certain circumstances. Yet notably absent was the Behrens email, which has been widely circulated all summer.

"If the emails are already in the public domain, it certainly raises an eyebrow that they didn't conduct a full search," Mark Caramanica, the Freedom of Information Act director at the Reporters Committee for Freedom of the Press, tells SFR.

NMFOG says the Behrens email should have been produced.

"Emails dealing with public business are subject to New Mexico Inspection of Public Records Act regardless of where they are held," NMFOG board member and lawyer Marty Esquivel writes in an email to SFR.

Questions also remain as to what else the governor's office may have held back. State Rep. Brian Egolf, D-Santa Fe, argues that the governor's office can't be given the benefit of the doubt because leaks have given the impression of a private email network, and because the Behrens email had been circulating publicly for more than two months.

"You're asking for something that you know is there and they're not acknowledging it," he points out.

The question of whether private emails among state government staffers discussing public business are indeed public records will likely arise during the next legislative session. Egolf says one way to reform the process is to put all governor's office staffers' emails on a centralized server. A third party would respond to IPRA requests, presumably making the process more transparent.

Until then, Egolf says, much of Martinez' rhetoric on transparency is simply that.

"She makes a lot of statements that sound good but, of all things, the proof is in the pudding," he says.
The governor's office hasn't returned SFR's voicemails or emails about the June 20 IPRA since then.

Read the back and forth between SFR and the Governor's Office below:

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