Secrecy of State

The latest round of wrangling over a public-records complaint SFR filed last year may have serious implications for transparency in New Mexico. Last week, Assistant Attorney General Sally Malavé sent a sharply worded letter to Matthew Stackpole, the assistant general counsel to Gov. Susana Martinez, urging the governor's office to respond "immediately" to a public-records request SFR filed last June.

The issue dates back to May 2, 2012, when New Mexico Public Education Department spokesman Larry Behrens sent a now-infamous email.

"Hey All," Behrens wrote from his private Gmail account. "Attached are the teachers lists and here's how I got them just in case there's any holes I haven't thought of." Behrens went on to detail his process for compiling a list of all non-union teachers in New Mexico.

He sent it to top Martinez officials: then-spokesman (now deputy chief of staff) Scott Darnell, Chief of Staff Keith Gardner, PED Secretary-designate Hanna Skandera and Martinez' outside political adviser, Jay McCleskey. For each public official, Behrens used a private email account—susanapac.com addresses for Gardner and Darnell, yahoo.com for Skandera. That same day, Skandera forwarded the message to Martinez on a different email server: susana2010.com, the old address for the governor's 2010 election campaign.

In June, the email surfaced in the news. Behrens told a reporter he was responding to a public-records request, igniting a controversy over whether public officials should be allowed to use private email to conduct public business—and whether doing so amounted to trying to hide certain matters from public record. Martinez later ordered state officials to confine all public business to their state email accounts.

But the Behrens email raised another question: If public officials weren't using private email accounts to hide from public-records requests, would they willingly provide them when asked?

In June, SFR filed a test request under the New Mexico Inspection of Public Records Act. We asked for all emails sent and received on May 2 (and two other dates) to Gardner's and Darnell's susanapac accounts (among other private email accounts). After delays, the governor's office responded with a single email—and not the one Behrens sent on May 2.

So in August, SFR filed a formal complaint with the AG's office, which is responsible for enforcing IPRA. And since Malavé's response earlier this month, things have gotten increasingly heated.

On Feb. 5, Malavé informed Stackpole that the response to SFR's initial request was "insufficient." Stackpole replied on Feb. 12, insisting that "we have produced all responsive documents." He noted that the susana2010.com emails were allegedly stolen, even though Behrens' original email wasn't sent to those accounts. He also raised an interesting point: that SFR didn't specifically ask for the Behrens email—just for all emails sent on the same date, to the same private email accounts.

"[H]ad our Office been made aware that [staff writer Joey] Peters was looking for that specific exchange, our Office would have appropriately forwarded the request to the Public Education Department and it would have produced the responsive e-mail," Stackpole wrote.

To observers, that's a worrisome statement. Under state law, requesting a public record doesn't require saying exactly what you're looking for, in part to avoid tipping off public officials who may be tempted to hide or destroy records.

"It strikes me as absurd to take a position that you have to know all the information you're asking for before you ask for it," state Rep. Brian Egolf, D-Santa Fe, tells SFR. "For them to say they're not going to give it to you because you didn't know the to and the from—that's absurd."

On Feb. 18, Malavé wrote that the AG's office urged Pamela Cason, the records custodian for the governor's office, "to confer with Governor Martínez and Messrs. Gardner, [former deputy chief of staff Ryan] Cang[iol]osi and Darnell, and solicit from them any e-mails held in their respective susanapac or other private email accounts as identified in Mr. Peters' request."

If the governor's office did that, it's unclear why an email Behrens himself characterized as a public-records request didn't surface.

Kevin Goldberg, a Maryland-based First Amendment lawyer, says that's concerning. "[The emails are] already public, and they insist on treating them as private," Goldberg says.

"If such e-mails relating to public business are found," Malavé continued, "these should be made available or a denial letter…should be sent to Mr. Peters immediately."

The governor's office didn't respond to SFR's requests for comment, but has accused AG Gary King—who plans to challenge Martinez for the state's highest office in 2014—of "playing politics." But King's spokesman, Phil Sisneros, denies that, adding that follow-up letters to unresolved IPRA complaints are "standard operating procedure."

"It's the same thing I've always said: There are no politics involved in this," he says.

State law holds that agencies that fail to properly respond to public-records requests may be liable for up to $100 a day. As of press time, SFR's total stood at close to $20,000.

Read both the Governor's Office's and the Attorney General's letters below:

Santa Fe Reporter