As Gov. Susana Martinez cruises toward what many predict will be her certain reelection, three separate lawsuits alleging that her office violated public records law remain unresolved.
Among them is a case SFR filed in September 2013, accusing her administration of withholding public documents and engaging in a campaign of retaliation against the newspaper's critical coverage. A court-ordered mediation is set for Nov. 20 and a number of motions are pending before District Court Judge Jennifer Attrep.
Though the litigation will likely stretch far beyond Election Day, the cases are shedding light on the loose methods the governor's office employs to handle public records.
One case in point is that of former New Mexico Finance Authority head Rick May, who sued the governor for failure to produce public records related to his firing after his comptroller faked an audit. Paul Kennedy, a former state Supreme Court justice now representing Martinez as a contract lawyer, argued that the governor's records custodian, Pamela Cason, keeps minimal records when she gathers documents for a public document request.
May's attorney wanted the custodian to hand over her file of a particular records request to reveal the sequence of events when the governor's office conducts research for such requests.
"He thinks there's a folder someplace that shows all this information. There's not," Kennedy said in court.
But Cason's own statements in SFR's case tell otherwise. When attorney Daniel Yohalem deposed her in August on behalf of the newspaper, Cason frequently talked about how she keeps a physical file for each records request.
"When we receive a request, we e-mail it out to the staff, and everybody in the office is included on that e-mail," she explained. "They are then asked to respond. We have a three-day and a 15-day [response deadline], which I calendar because we don't want to miss those deadlines. And as we get the documents in or responses that there are not any documents, then I keep them in a file."
Cason also revealed that she deletes some of her own government emails because she views them as "transitory" and not public.
"I know personally, as many e-mails as I get on a daily basis, if I didn't erase some emails, I would have thousands and thousands that would make no sense to keep," Cason said.
State law's definition of "transitory" e-mails is vague. It states that "non-records or transitory e-mails that do not provide evidence of official agency policies or business transactions may be deleted."
Enrique Knell, a spokesman for Martinez, did not respond to SFR's questions about what kind of system the governor's office uses to retain staff email messages.
Cason also said in the deposition that she never received official training about how to interpret which documents are "transitory." But she also said that the records archive office's attorneys gave her a "very clear" rule. She defines "transitory" emails as "if they are not having a final decision being made." One e-mail exchange her office didn't provide (but that another state agency gave to SFR through a public records request) was between the governor's Legislative Liaison Janel Anderson and state Sen. Mark Moores, R-Bernalillo.
The message was a letter from Anderson and Moores to the Senate Rules Committee Chairwoman Linda Lopez, D-Bernalillo. The pair urged Lopez to prevent the left-leaning director of a political action committee from testifying against state Education Secretary-designate Hanna Skandera at her legislative confirmation hearing.
In her deposition, Cason said that "it is possible" that Anderson didn't have the emails when she was asked for them in response to the records request.
The New Mexico Commission of Public Records, which gives state agencies guidance on public records retention, defines transitory messages as those that "may have an official context but may not be part of a business transaction."
Even that definition is vague, says New Mexico Foundation for Open Government Executive Director Susan Boe. Regardless, she adds, the email exchanges between Anderson and Moores don't seem transitory.
Linda Trujillo, the state records administrator for the public records commission, writes in a recent op-ed in the Santa Fe New Mexican, that "general correspondence" between public officials is supposed to be archived for one year after the end of the fiscal year in which they were created.
SFR requested the Anderson and Moores e-mails to the governor's office just three months after they occurred.
"Do you know how long people are supposed to maintain e-mail on their account?" Yohalem asked Cason in the deposition.
"No," she responded.
"As far as you know, they're never supposed to erase it, are they?" he asked.
"I guess I don't know how to answer that question," Cason said.
UPDATE: Knell responded one day after SFR's print deadline by simply writing, "Retention is handled according to state regulations."