To Release or Not to Release?

State Attorney General Hector Balderas is weighing a decision that could have far-reaching consequences for how much residents in Santa Fe—and around the state—get to know when police officers screw up.

Finally.

The question has frustrated journalists and transparency advocates for years in New Mexico, where cities and counties operate under individual policies that range from absolute secrecy to the prompt and full release of details about police discipline.

SFR documented the hodgepodge in a June cover story, finding, among other things, that the city of Santa Fe lives at the dark end of the spectrum, favoring a policy that keeps punishment for officers hidden from public view.

City officials believe telling residents how officers have been disciplined could get the city sued—and that keeping the information secret is perfectly legal under the section in the New Mexico Inspection of Public Records Act (IPRA) that exempts "matters of opinion" from disclosure.

SFR and the New Mexico Foundation for Open Government (FOG) disagree. So do government attorneys, politicians and law enforcement officials in places such as Las Cruces, the Santa Fe County Sheriff's Office and even Albuquerque, which has been repeatedly criticized and successfully sued for its lack of transparency.

The fact that a police officer has been disciplined is a fact, not someone's opinion, the opposing view goes.

In August, Mayor Javier Gonzales said he was troubled by the Santa Fe policy and promised to ask Balderas, the state's arbiter and enforcer of IPRA, to weigh in with an advisory opinion. After repeated inquiries about the status of that request from SFR, Gonzales sent a letter to Balderas on Halloween.

It is an odd document. Gonzales writes that city officials do an incredible job of holding Santa Fe's few bad apples accountable when they make mistakes. But the city can't "share these stories with the public" because of legal constraints, including portions of IPRA.

"Too often, we let the public think the worst, because we are limited in what we can reveal," the mayor writes. He implores Balderas to "provide clarification" regarding the section of IPRA city officials use, among other things, to justify their secrecy policy.

For a page and a half, the mayor writes about his struggle with a desire for transparency, counterweighted by towering legal hurdles.

The rest of the six-page document could be summarized like this: After I've asked you to tell me which view of the law is correct, now please enjoy four and a half pages prepared by my City Attorney's Office (CAO) describing the vast legal authority under IPRA and the US Constitution we have to keep the public in the dark when our officers get punished.

"Based on this body of law, it is the CAO's position that internal affairs investigations and disciplinary actions are not subject to public inspection under IPRA," reads the final sentence of the letter.

SFR provided a copy of the letter to outgoing FOG President Greg Williams, himself a longtime transparency advocate and First Amendment lawyer.

"FOG's position remains as before: All citizen complaints against police officers are public record," Williams says. "If our police officers are being investigated, the public is entitled to know what that investigation reveals as well as the outcome. … FOG's position is that the law is clear, based on the plain language of that IPRA exception, and any inconsistent policies of entities around the state are due only to a misunderstanding of the law or an unwillingness to comply with the law."

Williams adds that FOG has no problem with Balderas penning an advisory opinion on the issue, particularly given the inconsistency around the state when it comes to police discipline.

Balderas' spokesman, James Hallinan, tells SFR the AG's Open Government Division is reviewing Mayor Gonzales' letter. He could not provide a timeline for when the review will be completed.

An advisory opinion, however Balderas falls on the issue, will carry much weight in New Mexico—giving secrecy fans cover, or providing a forceful legal document for transparency advocates and journalists to pry police disciplinary records loose.