Judge: Gov. Martinez Violated Public Records Law, Not Constitution

Judge issues long-awaited ruling in SFR's four-year-old lawsuit against the governor

In a 65-page ruling handed down Thursday afternoon, state District Judge Sarah Singleton ruled that the governor violated no constitutional provisions in limiting the access of SFR to her administration. Susana Martinez' staff, however, did break the law three times in its tardy or non-existent responses to public records requests.

The long-awaited ruling, which comes after a three-day bench trial in March, presented a mixed bag, both for the newspaper and for the governor, who is entering her final year in office.

SFR filed suit in 2013, claiming the governor discriminated against the newspaper in retaliation for critical coverage, and that her office violated the Inspection of Public Records Act.

Reached Thursday evening, SFR attorney Dan Yohalem said he is reviewing the ruling and will meet with the newspaper to discuss the next steps. SFR Editor and Publisher Julie Ann Grimm said she was waiting to meet with the paper's attorneys before commenting.

Martinez' contract attorney, Paul Kennedy, did not immediately return a phone call seeking comment.

SFR filed suit over five requests for public records. Singleton ruled that the governor and her staff violated various provisions of the state law in three of those requests. She awarded the newspaper attorneys fees for each violation. The judge awarded costs associated with making the inquiry and the delay in providing records one of the requests. And, in a separate instance, ordered the governor to conduct a proper search of her campaign email records—which are now at least five years old.

In that case, the judge wrote, "It does not appear from the testimony that anyone searched any of the susanapac emails, other than [former staffer Scott] Darnell's."

"It is the Court's opinion," Singleton said, "that if people create public documents on private email accounts, then when an IPRA request is made, the governmental body for whom those people are employed has an obligation to search or at least attempt to search those private accounts. To hold otherwise would make it too easy to hide from inspection the very types of public records which are most in need of disclosure."

Singleton said Martinez' claim that records related to pardons were privileged information did not withstand legal scrutiny and that her offer to release a year's worth of records by waiving the claimed privilege forced the newspaper to sue. "The Reporter was not satisfied with this approach because it did not want future requests to be subjected to the same claim of privilege," Singleton pointed out.

The judge rejected claims by Kennedy that SFR's requests for public record were not specific enough. She also declined to order the governor's office to change its IPRA-response procedures after the newspaper claimed they were legally deficient.

Singleton did not award damages to the newspaper in any of the three public records violations.

When it came to SFR's claims of unconstitutional viewpoint discrimination, an unprecedented claim in New Mexico, Singleton wrote the newspaper's "requests for information or interviews which went unanswered were not comparable to the mundane requests made by other newspapers."

Singleton cited a litany of federal cases that held the Constitution doesn't guarantee the press any special right to information that is not routinely available to the public. Providing minimal answers—or even no answer—to a news organization's inquiries is allowable, Singleton held, if the questions do not directly pertain to "routine information" broadly distributed to the public and other news organizations.

Giving special interviews to publications that haven't covered the governor critically is permissible, Singleton said, as is shutting off access to news outlets, including SFR, that have approached government with a more critical eye.

When SFR complained that the governor's office refused to respond to requests for an interview with the governor regarding stories on her administration's lack of transparency, Singleton said, it was "the type of information the press has no right to demand."

"In the Court's opinion … these requests are not asking for routine information, generally available to the public or other media. Each of these emails contains unique questions and each concerns a story that is specific to the Reporter," Singleton wrote.

If Martinez and her staff gave the same information SFR requested to a journalist from another news organization, doing so did not make that information routine, the judge said. In an example cited by Grimm during court testimony, the Albuquerque Journal received comments from Martinez for a story on the same general topic as an SFR inquiry that got no response. It wasn't discrimination, Singleton wrote, but "communicating with a favored reporter."

Often, Singleton cited the specificity of SFR's requests as their damning element. If other news outlets wanted a prepared statement, SFR asked for an interview. Similarly, on immigration issues, the judge wrote that SFR "asked for more in-depth analysis … and for contrasts between the governor's positions in national forums and in state [ones]."

Singleton said statements by former Martinez spokesman Enrique Knell that referred to SFR as a "left-winged weekly tabloid" clearly expressed his perception of the paper's political viewpoint, and "Knell's explanation that he meant that, because the lawsuit came out of left field, the Reporter was left-winged begs credulity." However, the judge held, it was not "these flimsy rationales" offered by Knell, but the nine months that had passed between when SFR published a story on Martinez' claims of transparency and Knell's later comments that made it difficult to prove the governor or her staff could hold a grudge for such a length of time.

Martinez' office did not respond to request for comment.

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