Punishing gov’t employees who leak documents ‘extremely unwise,’ NM FOG says

Public Regulation Commission (PRC) Commissioner Sandy Jones’s quest to identify and fire the employee he believed leaked an audit report that was published Friday by The Independent is legally dubious, according to New Mexico Foundation for Open Government director Sarah Welsh.

“Retaliation against such a person would be extremely unwise – if they win in court, they are entitled to double back pay, among other things,” Welsh told The Independent.

It should be noted that the Independent obtained the audit report in response to a public records request.

But even if it had been leaked, retaliating against the leaker would be a bad idea, Welsh told The Independent.

“The state’s whistleblower protections become relevant and important when someone is ‘leaking’ unsolicited information that gives evidence of law-breaking or malfeasance,” Welsh wrote in an e-mail to The Independent.

“But no one can ‘leak’ public documents that have been requested under the Inspection of Public Records Act. Quite the contrary – they are obligated by law to provide such documents. In this case, it sounds like the employee providing the documents was just doing his or her job, and following state law.”

But much of Jones’s often-heated debate with Commissioner Jason Marks Tuesday over The Independent’s publication of an audit report critical of the Division, centered around whether or not “draft” documents should be released to the public.

Citing executive privilege, division attorney David Barton said the audit report and a Division corrective action plan written in response to that audit were “mid-process” and should not be disclosed to the public.

“There’s an ongoing dialogue with the NAIC,” Barton said Tuesday.

State law does allow the insurance superintendent to declare third-party documents confidential if the authoring organization states on the document that the record is confidential. The NAIC audit report disclosed to The Independent was indeed marked “confidential,”and could have been legally withheld under state law.

But there is no draft documents exemption to the N.M. Inspection of Public Records Act, Welsh wrote. Barton has argued that the Division’s action plan is a draft document.

“When a document deals with public business and passes from one public employee to another, it clearly fits the definition of a public record and must be released unless a valid exemption applies,” Welsh wrote. “(E)xecutive privilege can sometimes be invoked to shield deliberative processes among high-level policymakers within executive-branch agencies – internal processes, that is. Once a privileged document is transmitted to someone outside of the agency, the executive privilege no longer applies.”

Welsh pointed to the relevant part of the state public records law:

Recognizing that a representative government is dependent upon an informed electorate, the intent of the legislature in enacting the Inspection of Public Records Act is to ensure, and it is declared to be the public policy of this state, that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of public officers and employees. It is the further intent of the legislature, and it is declared to be the public policy of this state, that to provide persons with such information is an essential function of a representative government and an integral part of the routine duties of public officers and employees.

“The greatest possible information – not just the ‘massaged’ information that our elected representatives deign to share with us,” Welsh wrote, alluding to Jones’s comment Tuesday that records should be “worked over and massaged” within the PRC before they are released to the public.