Faux Transparency

Citizens are on their own when trying to pull back the curtain on the government's public records

A bout two years ago, Hanna Skandera, then secretary-designate of the New Mexico Public Education Department, started repeating a number. Under the state’s old teacher evaluation system, she would say over and over again, 99 percent of teachers were considered competent.

By contrasting that stat with low student test scores, Skandera was pointing to flaws in the teacher evaluation system and calling for a change.

"We knew, from the reality of working with educators across the state, that the figure couldn't be true," says Charles Goodmacher, government and media relations director for the National Education Association-New Mexico. They knew the numbers were off, just based on how many teachers had been fired or disciplined for low ratings. "We went about saying, 'Please prove that. Please prove your statement.'"

Ferreting out the proof should have been as simple as filing a request under the state Inspection of Public Records Act, or IPRA, and waiting up to 15 days for the documents. The law guarantees the public the right to see documents related to everything from health statistics and environmental studies to budgets, contracts and salaries. But in New Mexico, public agencies don't always follow the rules.

One way agencies skirt compliance, for instance, is by stalling the release of documents for so long that they are no longer relevant to the requester. Absent some strongly worded letters or the threat of paltry fines—picked up by taxpayers, no less—there are no real consequences when an agency or official violates the laws. With no one holding those agencies and public records custodians accountable, often the only path forward is for citizens or organizations to slog it out in court themselves. And that's what NEA-NM did.

Susan Boe, executive director of the nonprofit New Mexico Foundation for Open Government, whose organization received about 400 calls in a one-year period from people who had questions or concerns about IPRA and its sister law, the Open Meetings Act, says those laws are an important part of democracy, "an essential government function, not an interruption in the day-to-day of government."

The public would benefit, Boe says, from more enforcement on the part of the New Mexico Office of the Attorney General, which is charged with enforcing compliance with the two laws. "There are a couple of places in the state, and my phone just rings off the hook about violations there," she says. "In this one particular municipality, I even reached out on behalf of FOG to the Attorney General's Office…and nothing has happened."

According to Deputy Attorney General for Civil Affairs Peter Auh and Assistant Attorney General Luis Carrasco, the office receives about 25 complaints about IPRA and OMA violations each month.

Upon receiving a complaint, Carrasco explains that attorneys will examine the facts and decide if a violation occurred. Sometimes, he says, the issue can be cleared up with a phone call to the public body. Other times, it requires an investigation. "Once we have all the facts, we will apply what IPRA requires to those facts and then decide this was a violation or not. If this was a violation, [we say], 'Here's what you need to do to come into compliance.'"

But the state's top prosecutor has shied away from prosecuting violators. Hector Balderas became attorney general in January and almost immediately released a controversial behavioral health care audit his predecessor had refused to make public. But since then, he has done little more than bump up the number of training sessions on open records and open meetings the office holds for public officials and citizens across the state.

Balderas tells SFR that his agency has "completely revamped our prosecution unit to take on important cases in all areas of law."

He adds, "I'm approaching compliance as, this is a gateway risk to corruption and loss of public resources. Setting the proper tone at the top in government and making sure we comply with OMA and IPRA the best we can is a way of protecting good, honest employees as well as weeding out the bad actors."

Yet many end up filing cases on their own, in a slow and expensive wager. In September, KRQE-TV settled a case with the City of Albuquerque and the Albuquerque Police Department over IPRA violations they alleged took place in 2014. Earlier this year, the Associated Press settled a 2013 suit against Gov. Susana Martinez for refusing to release records related to her work and travel schedules, calls and expenses. A case that SFR filed more than two years ago alleging the governor's office violated IPRA, among other claims, is inching its way through the civil discovery process, while the public pays for a contract lawyer to defend the government.

Yet the NEA eked out a court victory, despite pressure to settle. Just this summer, a district court judge ruled in favor of the teachers union, ordering the state to pay legal fees and fines in a determination that it had failed to disclose information proving Skandera's statement.

In the coming months, Balderas says his office is working with legislators to codify the duties for public records custodians at state agencies and ensure officials set aside enough funding for them to carry out their IPRA and OMA duties.

Meanwhile, citizens, including journalists, can expect to remain largely on their own when trying to peer behind the scenes of government and hold public officials and agencies accountable.

But Goodmacher points out that the judge's ruling on the NEA-NM suit did include one major victory when the judge ordered the state to pay the full value of the plaintiff's legal fees.

"That's an advance in the IPRA world," says Goodmacher, who also sits on the board of NMFOG and believes some lawyers may now be more likely to take those kinds of cases. "It basically says there's a public good in making sure that lawyers who take on public interest cases…are not giving up their full-market rate in favor of taking on these public good or civil rights cases."

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