What began as a simple records request eight months ago could now cost the state tens of thousands of dollars, according to a letter sent by the Attorney General's Office last week.
It's also turned into a political battle pitting Attorney General Gary King, a Democrat who has announced his intention to run for governor in 2014, against Republican Gov. Susana Martinez, whose commitment to transparency and open government hasn't always lived up to her campaign promises [cover, Dec. 18, 2012: "The Year in Closed Government"]—with SFR in the middle.
The dispute began last summer, when news surfaced that state officials were using their private email accounts to conduct public business. The AG's office has since maintained that emails concerning public business—regardless of whether they're sent using public or private email accounts—are public records.
In June, SFR filed a public-records request to inspect three days' worth of public officials' private emails. The request included the date May 2, 2012—the same day state officials sent a widely publicized email containing a list of nonunion teachers to Martinez' top political advisor, Jay McCleskey.
That request—which SFR made with guidance from the New Mexico Foundation for Open Government—was a test to see whether the governor's office would consider the May 2 email a public record.
Apparently, it didn't. After initially calling SFR's request "broad and burdensome," the governor's office finally responded, nearly two months later, with just one email—and not the May 2 email [news, Aug. 22, 2012: "Undocumented"]. The response did not indicate that the governor's office had withheld any records.
In August, after receiving that response, SFR filed a formal complaint with the Attorney General's Office, which is responsible for enforcing the state's Inspection of Public Records Act.
It took the AG's office nearly six months to respond—but then, last week, Assistant Attorney General Sally Malavé wrote in a letter to Martinez' assistant general counsel, Matthew Stackpole, that the response the governor's office made to SFR's public-records request was "insufficient because it did not clearly cover any responsive public records in the private e-mail accounts specified in the request."
Under state law, agencies that fail to properly respond to public-records requests can be liable for up to $100 a day "from the day the public body shows its failure to provide a timely explanation of denial." But in this case, the AG's letter offers the governor's office two other options: (a) Give SFR the records it originally requested or (b) Give SFR a proper denial of its request—one that "includes all the information required."
So far, that hasn't happened. Since Feb. 5, the day King's office sent the letter, the governor's office has repeatedly declined SFR's requests for comment. Last week, seeking a response to King's letter, SFR made several phone and email inquiries to Martinez spokesman Enrique Knell, but received no reply. On Friday, SFR staff writer Justin Horwath finally caught Knell in person and asked if he "would ever comment on the AG letter." Knell declined to comment.
Knell did, however, respond to an Albuquerque Journal story that King was "made aware" that all the proper records were provided in the governor's office's initial response to SFR. He also accused King of "playing politics."
(As SFR reported online last week, the Journal revised that story to include Knell's comments, and changed the headline from "AG: Governor Wrongfully Withheld Emails" to "AG Tells Gov. To Reconsider Email Response." Although Journal Editor-in-Chief Kent Walz told SFR the story was revised to include "additional reporting," the updated version did not include a comment from King's office [SFReporter.com, Feb. 8: "Abq Journal Changes Tone in Private Email Story"].)
Kevin Goldberg, a Maryland-based lawyer who specializes in the First Amendment and the federal Freedom of Information Act, says it's rare for attorneys general to come down on the side of the complainant in public-records disputes.
"Even at the state level, where the attorney[s] general have this power, it's not something that you see a lot of," Goldberg says. "They tend to side more with the governor than not."
That King's office has frequently opposed the governor has prompted criticism from her allies.
Last November, for instance, King's office responded to a different public-records request by giving SFR hundreds of private emails involving governor's office staffers. Independent Source PAC, the liberal political action committee heavily critical of Martinez, had given the emails to King earlier in the year. The governor's office, which has maintained that the emails were stolen, claimed that King's decision to release them was politically motivated.
Indeed, the fact that public-records issues sometimes devolve into allegations of partisanship and bias may be a key weakness in New Mexico's system of IPRA enforcement. In 2011, the Washington, DC-based Center for Public Integrity ranked New Mexico 39th out of 50 states in its "corruption risk report card." And when it comes to public-records requests, CPI found that King's office only investigates potential violations when "prompted and pushed by official complaints." That means it's up to the media and the public to make the complaints that trigger enforcement.
NMFOG Executive Director Gwyneth Doland says New Mexico's system offers an advantage for complainants who "don't have to wait for some big, clunky bureaucracy" to respond to their complaint and can go ahead and sue. The disadvantage, especially for individuals and media outlets without the extra cash to spend on a lawsuit, is that "the official process lacks muscle—and suing is expensive," Doland says. "Our New Mexico system for enforcing public records and open meetings logs is very frustrating for the public."
The CPI survey also notes that "partisan fights" over public records have become more common during King's tenure.
And they continue. Last week, for instance, media outlets reported on a letter from the Federal Bureau of Investigation that ordered King's office to turn over all "intercepted" emails as a part of its investigation into whether Martinez officials' private emails were stolen. Releasing documents "known to have been illegally intercepted," the letter noted, would violate the law.
In response to SFR's questions, Attorney General spokesman Phil Sisneros provided a letter the AG's office sent back to the FBI, explaining that they were unaware of any FBI investigation. Sisneros denies that politics played a role in the office's most recent decision, adding that, anytime the office looks into an IPRA complaint, it has to comb through the applicable statutes to make a final determination.
"It's pretty cut and dried," Sisneros tells SFR. "You don't selectively pull things out of the law that you like."
In the meantime, the fine the state may face for improperly responding to SFR's June request increases every day. As of press time, it was up to $18,300.
In the Center for Public Integrity's State Integrity investigation, New Mexico received the lowest possible score—zero—for open-records enforcement, which the state Attorney General investigates only "when prompted and pushed by an official complaint."
"The process is painfully slow and only a few determinations or opinions are released each year," the CPI report states. "The office does not monitor the process. And partisan fights have become more common with the current Attorney General, Gary King."
States with independent records commissions fared better in the CPI survey. New Jersey, which scored 100 percent, has an independently staffed Government Records Council that fields and investigates open-records complaints with, according to CPI, "no bias or favoritism."