Still in the Dark

Halfway through his term, attorney general's transparency enforcement pattern shows long wait—but he has a plan

New Mexico Attorney General Hector Balderas says the state is in a “transparency crisis.” He’s right.

It seems a near-weekly occurrence that another journalist or citizen has lawyered up and filed suit against some secrecy-happy state, county or city government entity for violating the New Mexico Inspection of Public Records Act, known as IPRA.

Judges have slapped governments around the state with the paltry fines allowed for breaking the law, which is supposed to serve as the public's open, sunshine-filled window onto how elected and appointed officials do business on paper.

But should it ever get to that point?

Balderas is New Mexico's top law enforcement officer. That means he must enforce IPRA—and every other state law. As such, his office offers an avenue to IPRA requesters who feel they've been wrongly stonewalled: File a complaint.

Last July, I did just that after Gov. Susana Martinez' administration refused to turn over records showing how much taxpayer money had been spent on a private attorney to—ironically enough and among other things—help the governor keep public records hidden from news organizations and others who had sued for them.

Five months passed before Balderas' Open Government Division ruled on my complaint. An analysis by SFR shows that's exactly the average amount of time it's taken a lawyer in the division to determine whether an agency broke the law after 89 total complaints since Balderas took office in 2015. Dozens of other complaints remain open.

"On the surface, that appears to be" too long, says Peter St. Cyr, executive director of the nonprofit New Mexico Foundation for Open Government (NMFOG). "We'd like to see it done faster since the information provided might not be of much use to citizens" five months down the track.

The AG's office has found IPRA violations in 20 of the 89 closed complaints, SFR's analysis shows. Mine was one of the 20, but despite an admonishment from the AG's staff, the Martinez administration still refused to turn over most of the records I requested.

I had to get my own lawyer and file a lawsuit for the records. The case is pending.

When Balderas was running for office in 2014, SFR Editor Julie Ann Grimm asked him in an endorsement interview: "Will you go to court to enforce the penalties in IPRA?"

"Absolutely," the would-be attorney general replied. "We will be."

He's done that once in the two and a half years since he took over as AG. Balderas sued the Española public school district under IPRA after officials withheld records he asked for. That case is also pending.

Balderas says the problem is not of his making.

He says he's frustrated with the slow pace of resolving complaints, but blames recalcitrant government agencies for the delays. And in a recent interview, he tells SFR that litigating IPRA cases is a long, difficult proposition with little return on the back end.

Successful IPRA lawsuits only earn plaintiffs a maximum of $100 for each day public records weren't turned over, plus attorney's fees. And even then, the state's high court has balked at imposing the penalties. Balderas says the state budget crunch means he has to "self-fund" nearly half the cases he takes to court.

"I have to be very particular which litigation I bring, whether it's water litigation or child abuse cases," he says. "What I was surprised with when I inherited the office is that [the Open Meetings Act] and IPRA, the system, both in penalties and resources, has been really set up to fail on behalf of taxpayers. And that's really the dirty secret that has not been uncovered and why we really have a transparency crisis in New Mexico."

Balderas, who announced this spring that he plans to run for a second term in 2018, is floating a pair of new ideas he says could create a more transparent New Mexico.

The first is an independent agency that would certify and oversee all records custodians—government employees who are responsible for fielding and filling IPRA requests—around the state. Balderas says "professionalizing" the custodians and making them accountable to an entity that doesn't have a vested interest in secrecy would open some doors.

Presently, many custodians are "moonlighting" in those jobs while performing other duties.

"I don't think agencies should be allowed to voluntarily comply with assigning a custodian of records or how much professional training they should get," Balderas says.

The second idea: "Put real teeth in the law so that I can enforce civil and criminal penalties," he tells SFR. For example: "In the event that OMA and IPRA are abused to advance other criminal activity, it would be a fourth-degree felony."

The latter would be accompanied by an increase in funding for more prosecutors under Balderas' plan. He figures both ideas could be revenue-neutral if the Legislature reallocated one-tenth of 1 percent of the overall state budget. That's about $6 million.

It would be worth it, Balderas says, adding: "I do think there is a direct correlation between transparency and mitigating criminal activity."

St. Cyr says NMFOG supports Balderas' idea for an independent entity to oversee the custodians as long as it is has "real oversight authority."

The venerable transparency organization also is in favor of a budget increase for IPRA custodians—and for additional prosecutors to target serial IPRA violators, he adds. But NMFOG has a simpler idea for more sunshine in the state.

"Ultimately, more is needed to build online records storage capacity," St. Cyr says. "Once that happens the public can search and download their own records."

Reams of public records sitting under the bright lights of the internet would make it harder for the transparency crisis to persist.

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