The secret still isn't out.
Two and a half years of journalism, including at least five published stories by SFR, concerns voiced by top city officials, a request for guidance from state Attorney General Hector Balderas and a pair of legal actions filed by this newspaper have not moved Santa Fe's higher-ups to abandon their questionable policy of burying whether city employees—police officers, in particular—have been disciplined for misconduct.
But last week came a wee crack in the policy's dark, concrete edifice.
First Judicial District Court Judge Bryan Biedscheid on Jan. 8 denied a motion from the city asking him to dismiss SFR's most recent lawsuit aimed at freeing Santa Fe disciplinary records. This time around, SFR seeks records that would show whether three officers whose conduct led to insurance payouts have been sanctioned for SFPD policy violations during their careers.
A separate request, which is also part of the lawsuit, seeks eight years' worth of possible disciplinary records for now-Deputy Chief Ben Valdez, who was the commanding officer on scene at a fatal police shooting in 2017.
Greg Gurule, the police department's records custodian and spokesman, denied our requests for those records under the New Mexico Inspection of Public Records Act last year. The rationale: Any records related to internal investigations or discipline are "matters of opinion," some of which governments may lawfully withhold under IPRA.
So SFR filed suit against the city and Gurule who, we learned in court last week, did not so much as search for the records to determine whether any existed or could be released.
The lack of review itself appears to violate IPRA, a notion Biedscheid nodded toward during his back-and-forth with Assistant City Attorney Gabriel Smith and SFR's lawyers, Daniel Yohalem and Katherine Murray.
"Why would it not be necessary for the records custodian to review those records and determine what, if anything, in the personnel file isn't a matter of opinion?" the judge asked from the bench.
Smith replied that Gurule knows the city's policy—so why would he review records for release that his bosses consider secret?
Smith's legal argument relied exclusively on a series of New Mexico court decisions dating back to the 1980s that, according to some interpretations, allow government entities to shield disciplinary records. He also pointed to an unpublished state Supreme Court opinion he claims means "this is a settled matter."
Murray countered that a handful of more recent court decisions have essentially nullified the older case law and mandate more transparency. She also reminded those in the courtroom that there's nothing in the law itself that exempts information about discipline for public employees or how their bosses arrived at it.
Biedscheid denied the city's attempt to toss out SFR's case quickly, but he walked a bit of a tightrope in so doing.
His review of the IPRA statute and what he called the clearest of the "less than clear" case law "points to the notion that there can be properly produced public records in a file such as at issue in this case," Biedscheid said, adding that he was not ordering the city to turn over any records straight away.
Instead, he asked the two sides to confer on a "mechanism," a "path forward" that would allow him to determine whether SFR should receive any of the records.
"I realize it's difficult to do that when we're talking about documents we haven't seen," the judge said, then acknowledged that however the case proceeds from here, any decision will impact disciplinary records for all public employees, not just police officers.
In an interview the day after the hearing, SFR attorney Yohalem acknowledges the potential scope of the case, but draws a sharper focus on police officers because of the powers and responsibilities they're granted when they put on the badge.
"When the city or state does conduct an investigation and it does lead to discipline, it's important that the records be available," he says. "We need to know. And burying this, which is what too many departments do, is ultimately a tremendous danger to our society."
Indeed, SFPD is not alone in embracing a secrecy policy for disciplinary records. A 2017 review of several departments around the state found a patchwork, with some favoring maximum transparency and others entombing disciplinary records with the force of a stonemason.
Yohalem says he's concerned that a SFR victory at the District Court level in this case could fail to create a better, more transparent statewide policy. That level of change would have to come from a decision from one of the state's higher courts.
"A wholesale change in the law will force agencies that have been protecting records to divulge them," he says. "That's what's at stake."
And big change is what SFR sought with its first legal salvo aimed at opening up discipline records. The newspaper sought to move the case quickly to the state Supreme Court, but a district judge shot it down, relying on the old case law.
That led to the current lawsuit.
One man sitting in Biedscheid's courtroom during last week's hearing lays out even broader stakes.
Thomas Grover is a former Albuquerque Police Department officer. He now works as an attorney, often representing officers who are the targets of internal investigations aimed at determining whether cops broke department rules—those that find violations and those that don't.
Grover favors transparency for disciplinary records, too, particularly in the age of cellphone cameras, police-worn body cameras, surveillance cameras and social media.
"This kind of secrecy obviously erodes public trust in law enforcement, but it also leaves officers, deputies, whoever, in a position where they either can't explain a policy violation or go out and say they'd been exonerated," Grover says, adding that many of the officers he's represented can't even get their own internal affairs files via IPRA requests. "Now more than ever, the public can see police conduct which, in some cases isn't necessarily pretty, but they can't see how departments decided whether that conduct amounted to good policing or overreach. It's just bad public policy."
Biedscheid has not set a date for a second hearing in SFR's case against the city. There's much to do before anyone even knows what the parameters of such a hearing would look like.