Still Secret

That's how long state Attorney General Hector Balderas has been sitting on a request from then-Santa Fe Mayor Javier Gonzales asking whether the city's policy of keeping information about police officer discipline secret violates New Mexico's public records law.

SFR surfaced the issue in a cover story last June that noted Santa Fe's secrecy policy mirrors others around the state, but stands in contrast to more open practices in places such as Grants, Rio Rancho and even the notoriously transparency-averse Albuquerque Police Department.

Gonzales said at the time he was "troubled" by the policy's implications for taxpayers who fund the police department, even though it was his legal department that continued to insist that officer discipline was exempt under the New Mexico Inspection of Public Records Act, known as IPRA, because it is a "matter of opinion." Some city councilors also questioned the policy last year. And transparency and good government advocates have said this one's a no-brainer: Police officer discipline is a fact, not someone's opinion, and should therefore be public.

But rather than move toward sunshine himself, Gonzales dashed off a letter to Balderas on Halloween asking for an advisory opinion from the AG, whose job includes enforcing IPRA.

Halloween—as in, Oct. 31, 2017. And now, SFR has learned, there is no end in sight to the waiting.

"Because they may be directly related, the Office of the Attorney General has paused on opining on this issue until we have completed our statutorily mandated work on two legislative memorials that require the office to convene a group of stakeholders to study law enforcement body camera issues."

That's the response James Hallinan—Balderas' former spokesman who is now running communications for US Rep. Michelle Lujan Grisham's gubernatorial campaign—sent SFR after our most recent request for an update last month.

Neither of the nearly identical documents appears to have even a tangential connection to whether the fact of police officer discipline should be disclosed to the public. In fact, Rue's memorial states in its second paragraph: "The use of body-worn cameras by law enforcement officers conveys that the actions of law officers are a matter of public record and concern." (Chasey's HM 104 contains a verbatim second paragraph.)

Rather than officer discipline, the memorials are concerned with whether video captured by body cameras should be released publicly if it bumps up against peoples' mental health care privacy rights and the rights of crime victims.

But that's not how the Balderas administration sees it.

SFR wrote to David Carl, Balderas' new spokesman, last week asking how on Earth the work mandated in the memorials could possibly slam the brakes on answering the simple question of whether a suspension, letter of reprimand or firing of a police officer is something residents have a right to know.

"To give a thorough opinion to the city regarding the requested legal question, the OAG made the decision to first fully analyze the impact of the legal questions raised in the memorials, including how lapel cameras may impact personnel disciplinary matters," reads Carl's emailed response. "The office will provide the opinion once that analysis is complete, and in accordance with the law."

Again, neither of the memorials raises a "legal question" about officer discipline.

As for the "pause" Hallinan described in his June email to SFR, it is not at all clear when the AG's staff stopped work on an advisory opinion or when Balderas told Santa Fe officials about it.

In response to an IPRA request from SFR for all correspondence on the issue with the city, the AG's Office provided two emails: One from former mayor Gonzales with his letter attached and another from Patricia Salazar of Balderas' Open Government Division saying she'd received it.

That's it.

In any case, an advisory opinion from Balderas, while not binding, could have far-reaching consequences around the state. As SFR uncovered last year, New Mexico law enforcement agencies vary widely in their approach to transparency on discipline. Should Balderas write that officer discipline is in fact a public record, many departments would have less cover if they faced litigation seeking to pry loose facts about whether cops have been punished.

Meanwhile, the city of Santa Fe's new administration under Mayor Alan Webber—which could choose a more transparent path any time, regardless of how Balderas comes down on the issue—doesn't want to talk about its policy.

In an emailed response to SFR on March 22, Webber told SFR that he was open to revisiting the issue once he had a new city attorney in place. City spokesman Matt Ross sent out a news release on June 21 announcing Erin McSherry as Webber's choice for that job, which she formally began on July 16.

Ross declined to make McSherry available for an interview for this story, writing in an email that Webber and McSherry have not yet had discussed the policy in a "serious and thorough fashion."

Ross promised an interview once that conversation has happened.