At least one media outlet and the New Mexico chapter of the American Civil Liberties Union said in recent days that they are having a hard time getting documents from the Secretary of State’s office about alleged illegal votes in New Mexico.

Secretary of State Dianna Duran made the allegation that 117 foreign nationals were registered to vote and that, of those, 37 voted illegally during the last election. The Santa Fe New Mexican and ACLU-NM both submitted record requests under the Inspection for Public Records Act for the information.

ACLU-NM director Peter Simonson told Clearly New Mexico, a project of the non-profit the Center for Civic Policy, that ACLU-NM received information that was so heavily redacted it was essentially useless.

“The Secretary of State said she redacted the information we requested based on two issues: one, executive privilege; and two, driver privacy protection laws,” Simonson said.

Meanwhile, the Santa Fe New Mexican did not receive anything from the Secretary of State’s office.

The day after that meeting, I submitted a request to Duran’s office under the state Inspection of Public Records Act for copies of the 117 voter registrations, plus any records she had that indicated 37 of those people had voted.

After the 15-day response deadline allowed under the law, I was notified last week that my request was denied.

Citing state and federal privacy laws relating to MVD records, Secretary of State’s Office records custodian Christiana Sanchez wrote, “Based upon advisement of our legal counsel, the records are prohibited from release.”

Media outlets and the ACLU-NM will likely continue to attempt to get the information from the office of the Secretary of State and they may be aided by a Supreme Court decision.

Again from the Clearly New Mexico blog:

Simonson said it was interesting that Duran would use “executive privilege” as an defense, because that is the same defense Bill Richardson used a few years ago when the Republican Party of New Mexico sued to get exactly the same records from his administration.

In fact, that case is currently pending before the New Mexico Supreme Court, which heard oral arguments on it just a few weeks ago, Simonson said.

“We may want to see the outcome of that ruling, because it will directly affect what they are allowed to claim under the Open Records Act. We will also be looking into what the state’s driver protection laws say, and how executive privilege has been determined. At this point, we’re still trying to look at how to respond.”

The claim by Duran came during the legislative session where she was calling for requiring voter identification to vote. Duran has said that requiring identification to vote is one of her top priorities as Secretary of State.

Records from the final months of Bill Richardson’s administration will be unsealed following an opinion from Attorney General Gary King’s office.

According to the opinion from King’s office, Richardson’s public records should be subject to requests from the Inspection of Public Records Act. Private records, however, would remain sealed.

Richardson gave his records to the State Archives and had the records, including e-mails, sealed for eight years. Local media outlets had requests to inspect the records denied because of a 1967 law. According to the office of the Attorney General, that record does not pertain to “public” records but only to “personal” materials donated to the State Archives.

“The restrictions, moratoriums and limitations permitted under Section 14-4-11 apply only to ‘personal’ files, records and documents,” Chief Deputy Attorney General Albert J. Lama wrote in the opinion. “By limiting the statutory provision’s coverage to ‘personal’ materials, we believe the legislature intended to distinguish them from ‘public’ records that are already required to be retained and preserved under the Public Records Act.”

Later in the opinion, Lama wrote, “While permitting an elected or former elected state official to restrict access to his or her personal, private records makes sense, nothing in Section 14-2-11 suggests that the legislature intended it to restrict the public’s access to public records.”

The letter was sent to State Records Director Sandra Jaramillo, lawyer Justin Miller and Director of the New Mexico Foundation for Open Government Sarah Welch.

The full letter is available here.

“We’ve seen an up-tick in complaints regarding excessive charges for electronic copies, particularly at the local level,” Welsh said. “These include big bills to receive routine documents as e-mail attachments, and big bills for the privilege of making your own copies with a scanner or digital camera. Whatever the situation, unreasonable copy fees violate open-government laws and strongly discourage public access to information.”

The state Inspection of Public Records Act (IPRA) protects any person the right to inspect public records for free, Welsh said.

Fees not to exceed $1 per page may be assessed only if copies are requested, according to state statute.

In reality, however, fees vary dramatically among different government agencies, and in many cases arbitrarily exceed the actual cost of producing those copies, open government advocates have long complained. Per-page fees are routinely charged by New Mexico state agencies for the production and disclosure of digital documents like PDF reports.

Individuals may use their own scanners, copiers or cameras to make copies of public records without charge, Welsh said.

“There are already a host of practical barriers to obtaining public information,” Welsh said. “As a citizen, I have to know what I’m looking for and who’s holding it, and I have to take the time and effort to request it. Sometimes I’ll need to study the law and argue my case for weeks or months on end. If I’m successful, copying charges often represent one final barrier to access. Citizen requesters will balk at paying hundreds or thousands of dollars for information, and that’s harmful to the public interest in government transparency and accountability.”

The action plan was prepared for the National Association of Insurance Commissioners (NAIC) following the national accreditation organization’s audit of Division oversight operations eariler this year.

The Division has disclosed an Aug. 26 letter from the NAIC, placing the Division on probationary status. But other records requested (including the action plan) “are protected from disclosure under section 14-2-1A(12) of the IPRA, as well as NMSA §59A-2-12B, under the terms of which documents submitted to and maintained by the Superintendent as confidential are not subject to inspection as public documents,” according to the Division’s e-mail.

State Superintendent of Insurance John Franchini repeatedly delayed scheduled discussions of the NAIC audit and his Division’s response at Public Regulation Commission (PRC) public meetings — first seeking a closed-session meeting with the Commission and then resorting to separate meetings with individual PRC commissioners rather than discuss the NAIC audit or the Division’s response at a public meeting.

Staffers and one commissioner expressed surprise that the Division would refuse to disclose its plan to address criticisms from the NAIC audit, when the audit itself has already been published by The Independent.

“The draft (of the action plan) is something I’d be proud of,” Commissioner Jason Marks told The Indendent. “It’s well thought-out. I don’t know why they wouldn’t want to release it.”

Marks previously criticized Franchini’s secrecy about the audit at a Sept. 28 Commission meeting.

Afterward, Chief of Staff Michael Rivera announced that a new, more restrictive PRC-wide policy about employee contact with news reporters is being drafted.

During the meeting, Commissioner Sandy Jones demanded that Division officials ‘name names’ of employees who had access to what Jones described as a “leaked” document published Friday by The Independent.

“Who gave him the letter?” Jones demanded, referring to the audit report. “Who has access to the letter? Name who has access to that letter. Who? Who? Who? What are the names? I want to know who gave the letter to the press. How do we not know?”

Jones called for the employee responsible for the “leak” to be identified and fired.

In fact, the document Jones referred to, an audit report from the National Association of Insurance Commissioners (NAIC), was given to The Independent by the Division in response to a routine request made under the state Inspection of Public Records Act.

Nevertheless, Division officials listed aloud for Jones the names of employees believed to have had access to the report.

Jones’s demand for names troubled one union official.

“I think he was treading real close to personnel issues,” AFSCME Local 477 public employees’ union president Arcy Baca told The Independent. “You can’t talk about any employee in open meeting, if it’s about a possible personnel action.”

Reports should not be released until ‘worked over and massaged’

Giving The Independent a copy of the audit report was improper, Jones repeatedly asserted Tuesday.

“I don’t think the press has free and open access to everything done in government,” Jones said during the meeting. “There are certain practices that shouldn’t be released to the public until they’ve been thought out and worked over and massaged within the agency. It makes no sense to bring the public in while you’re working on a draft report.”

The audit report given to The Independent was marked “draft.”

But that is no reason to avoid public discussion of the audit findings, Commissioner Jason Marks said.

“This (audit report) is not going to be changed,” Marks said to the other commissioners and staff. “We’ve been told to address it and the press has it already. Why are we trying to hunt down a leak and sweep this under the rug? What do you guys think your job is? Who do you think you work for?”

Commissioners David King, Jerome Block, Jr. and Theresa Becenti-Aguilar remained largely silent during the contentious exchange between Jones and Marks.

The audit report and the Division’s final corrective action plan, written in response to the audit report, should be discussed in public, Marks said.

“Exactly why is this confidential, legally?” Marks asked. “And as a policy issue, what are you guys trying to hide? The purpose of the Open Meetings Act is that the citizens to whom we’re accountable know what their government is up to. … The purpose of the law is not to protect us from being embarrassed.”

But state law allows the insurance superintendent to declare documents from other organizations to be “confidential” and exempt from public disclosure, Division attorney David Barton told commissioners.

The NAIC considers most aspects of its accreditation process to be confidential and objected to the publication of its audit report, NAIC officials told The Independent.

Division officials were not attempting to hide anything, but rather to protect the integrity of the NAIC accreditation audit process, Barton said.

Jones was quick to agree that the PRC’s goal was to protect the “sanctity” of the process.

Citing executive privilege, Barton said the NAIC audit report and the Division’s corrective action plan were works in progress that should not be disclosed to the news media before a follow-up NAIC audit scheduled for next summer.

“I’d say once it’s approved by the superintendent for release to the NAIC, it’s a final document,” Marks said.

The Commission’s discussion of the audit report’s findings and corrective action plan has been delayed three times in the past two weeks.

Last week, Superintendent of Insurance John Franchini was scheduled to present the audit’s findings in public, but that meeting was postponed. Franchini and some commissioners then sought a closed-session discussion of the audit, arguing that personnel issues raised by the audit prevented a public discussion.

But after The Independent published the audit, which did not name any staffers, Franchini asked to meet separately with each commissioner rather than addressing the audit findings at a Commission meeting.

“I have real concerns when the insurance superintendent wants to meet with us individually instead of in public,” Marks said.

New policy will force PRC employees to seek permission before speaking to reporters

Currently, PRC employees are supposed to tell the chief of staff about conversations they have with reporters.

“The policy doesn’t necessarily prevent employees from talking to the media but we have to tighten that up a little,” Rivera said.

The new policy will require that employees get prior permission from Rivera before talking with reporters, Rivera said.

“One thing we’re looking at is having reporters visit with employees in the office next to my office,” Rivera said. “I may or may not chose to sit in on those meetings.”

But Rivera should bargain with the public employee’s union if he’s going to change a policy affecting the terms and conditions of employment at the PRC, according to Baca.

“There’s already a policy on talking to the media, first of all,” Baca said. “The policy hasn’t changed in six or seven years. If they want to change the policy, they need to bargain with the union. They’ve got to bargain in good faith.”

Division Compliance Director Johnny Montoya had called for the chief of staff to improve transparency and ethics at the PRC. Montoya was not available Tuesday to comment on Rivera’s plans for stricter control of employees’ contact with reporters.

“It was like the Nixon White House in there today,” Marks commented after the meeting. “We shouldn’t be chasing after whistle-blowers.”

Governor Bill Richardson’s office has claimed that it has no written-down records of the 59 exempt employees who were laid off.

“It seems implausible that your office would make a formal announcement when it had no set of records to support its numerical assertion,” Chief Deputy Attorney General Albert Lama and Assistant Attorney General Zachary Shandler wrote in the April 12 letter. “It creates the impression that some staff member in Governor’s Office possesses, contrary to your response letter’s assertions, records pertaining to the 59 exempt employees requested by Ms. Welsh.”

That’s Sarah Welsh, the executive director of NM-FOG.

“The AG’s office is essentially echoing the public’s gut reaction, which was – seriously? You can’t really expect us to believe that you don’t have any documents and you don’t know who does,” Welsh said in a statement. “The attorneys are much more diplomatic than that, certainly, but the upshot is that the Governor’s staff isn’t telling the truth and is illegally stonewalling the public. This information should have been released six months ago.”

The governor’s office disputed the claims by NM-FOG and the Attorney General’s office in a statement on Friday afternoon.

“We respectfully, but strongly disagree with the opinion,” said Gilbert Gallegos, the Governor’s deputy chief of staff, in a statement. “The Governor’s Office complied with the law and the Attorney General’s Compliance Guide when it turned over 98 pages of responsive records. The fact that the requestor was not satisfied with those records doesn’t mean the Governor’s Office must create new records or act as a clearinghouse for all of state government.”

The press has attempted to identify the 59 exempt employees who were laid off, but so far only a handful have been identified.

Here is the letter from the Attorney General’s office:

AGO Determination Letter

The SUN had filed a state Inspection of Public Records Act (IPRA) request in July 2009, seeking checks written since 1999 to Borrego and others implicated in the alleged embezzlement conspiracy. But only checks written between 2002 and 2009 were disclosed to the paper.

State District Court Judge Sheri Raphaelson ordered last month that the District must disclose to the SUN all checks written to Borrego and her alleged co-conspirators since 1999.

Not surprisingly, the disclosed checks dated from 2002 to 2009 do total the $3.4 million State Auditor Hector Balderas reported Borrego had embezzled during the 2002-2009 time period, according to the SUN.

Curiously, however, the District failed to disclose any checks dated before 2002, in violation of Raphaelson’s order. Nor has the District responded to a separate SUN request, submitted in February, for checks written to 20 other individuals, the paper reported.

District staff were unable to obtain copies of checks cleared by Valley National Bank prior to 2002, District Superintendent Adan Delgado told SUN reporter Lou Mattei.

But Valley National Bank President Al Hernandez questioned that explanation, Mattei reported.

“I don’t think they requested them that far back, but I believe we probably do have (the checks),” Hernandez said. “If we get a request by them, we always provide what they ask for through the legal means necessary.”

Borrego pled guilty this February to embezzlement. She faces up to 42 years in prison and will be sentenced after a psychiatric evaluation.

At issue were District checks written to former business manager Kathy Borrego and others implicated in Borrego’s embezzlement of an estimated $3.4 million of the District’s money over several years.

Borrego pled guilty to embezzlement in February.

The SUN filed a state Inspection of Public Records Act (IPRA) request in July 2009, seeking District checks written since 1999 to Borrego and others implicated in the alleged embezzlement conspiracy.

But District officials and attorneys refused to disclose the records, arguing that doing so could hinder Borrego’s prosecution. Under state law, public records may be withheld if they reveal confidential law enforcement sources, methods, or information or the identities of individuals accused but not charged with a crime.

Raphaelson ruled that the checks do not reveal such information, and ordered the District to disclose the requested records to the SUN by April 3.

“Common sense would dictate that the checks and payment vouchers had already been made public just by having traveled through the normal channels of commerce as would be necessary to accomplish the alleged embezzlement,” Raphaelson noted.

“We’re talking about checks written with taxpayer money, it seemed like such a no-brainer” New Mexico Foundation for Open Government Executive Director Sarah Welsh told The Independent. “This already cost (the District) extra money on top of what they lost in the embezzlement. I would hope they’d just comply with the law now and drop any further objections.”

Raphaelson’s ruling clarifies the narrow limits of the law enforcement exemption, SUN news editor Kevin Bersett told The Independent.

“The whole idea of the law enforcement exemption is (to withhold) police reports about things like undercover anti-drug work where they don’t want to reveal confidential sources,” Bersett said Tuesday. “Kathy Borrego was identified back in August. How could checks by a public entity reveal law enforcement sources?”

The ruling makes it clear that seizure of public records by investigators does not render those records exempt from public disclosure, Bersett said.

Evidence of how public money is spent is a “chief principle of open government,” Welsh said.

Susana Martinez

The Democratic Party of New Mexico is accusing Republican gubernatorial candidate Susana Martinez, Doña Ana County’s district attorney, of “hiding” public records.

Martinez, on the other hand, maintains that the district attorney office she runs has worked hard to comply with two massive records requests the party filed in January.

The Democrats’ complaints may not indicate a violation of the state’s Inspection of Public Records Act, but Martinez’s office should have standard polices for dealing with requests, Sarah Welsh, executive director of the New Mexico Foundation for Open Government, said of the situation.

“We want to see a consistent policy and good communication. (In general, that) would solve maybe 80 percent of the problems that arise,” Welsh said. “The burden is on both parties to keep those lines of communication open.”

Because the party has already been allowed to inspect the records, Welsh said it’s difficult to accuse Martinez’s office of hiding documents, even if the party has yet to receive copies.

As things stand now, the party is trying to decide whether it wants copies of some or all of the more than 2,000 pages it flagged when it inspected the records. Once the party decides, Chief Deputy District Attorney Susan Riedel, Martinez’s records custodian, will send an invoice.

Once payment is received, Martinez said, her office will make the copies and mail them.

Dems: ‘Hurdles’ have hampered process

The situation began Jan. 4 when the party filed two records requests (click here and here) with the Third Judicial District Attorney’s Office seeking to inspect tens of thousands of pages of documents including budgets, contracts, invoices, travel and expense reports and information about cases from the time Martinez took office in 1997 to the present.

That’s a pretty standard request from the opposing political party when a public official is seeking higher office. It’s commonly called “opposition research.”

Riedel responded in a Jan. 11 letter that the request was “excessively burdensome” and included “documents kept in approximately 48,000 separate files.”

State Democratic Party Executive Director Scott Forrester claims that, during a series of phone calls over the next few weeks, Riedel said she would allow only two hours to inspect the records, then revised the time to four, then six hours, with a “possible extension” if that wasn’t enough time.

In the end the party was provided 6.5 hours to inspect the records on Feb. 17, and another 6.5 hours last Monday. Though that was enough time to inspect all the records the party had requested, Forrester complained about several issues:

• Riedel didn’t allow the party to bring a scanner or camera to make its own copies.

• He claims Riedel hasn’t been courteous. As an example, he said she told the party’s representative who inspected the records the he was “a pain in the ass” because Martinez had Riedel sit with him while he looked through the documents.

• After the party’s representative inspected the first half of the records on Feb. 17 and marked pages for copying, Forrester claims Riedel told the party she would copy and mail the documents to the party along with an invoice – but that hasn’t yet happened. Martinez told this reporter the intent all along has been to invoice the party after all documents were inspected and only make copies after payment was received.

“It’s a totally different story now that you’re asking questions,” Forrester said. “They’re stalling.”

Forrester said he believes the party will eventually obtain the documents, but Martinez’s office is going out of its way to make the process difficult by placing “hurdles” in front of inspection and copying.

“It personally sounds to me like they’re hiding something,” he said.

Martinez says her office is working to comply

Martinez, on the other hand, says her office is working to comply with the request – the second massive records request her office has received during her tenure as district attorney. She said her office had just completed its annual audit when the request came in, and many documents had not yet been replaced in their normal files.

That, coupled with recent budget cuts, meant gathering the documents the party requested took longer than normal.

Martinez said her office didn’t allow the party to bring its own scanner or camera because she wanted to ensure the documents were in their entire and true form when they left her office.

And she says her office didn’t make copies after the first round of inspection on Feb. 17 because the party had, in its records requests, indicated a maximum budget of $200, but had flagged enough pages for the copying fee to go well over that. She said she wanted to be able to provide a full cost to the party and receive full payment before making any copies.

Riedel initially told the Democrats she didn’t know to whom they should make out their check. That’s because, Martinez said, her office has never received payment for documents during her tenure. When asked by journalists for copies of public case records, her office generally provides them without charge.

And the only other requests her office has received – other than the one for which payment was never received – involved case information that wasn’t public record at the time, so those requests were denied.

Because of that, Welsh said it is understandable that some issues would come up in this instance – such as Riedel not knowing whether the check should be made out to the district attorney’s office or their fiscal agent, the state Department of Finance and Administration in Santa Fe.

“If they don’t get a lot of requests then this is kind of new ground. It sounds like they’re aware of the law and they’re trying to work it out as best as they can,” Welsh said. “If this was a regular practice I’d be more concerned, but it sounds like it’s a special case.”

Riedel initially told the party the cost for documents would be $1 per page – the maximum the law allows – but later chopped the fee in half. Welsh said that’s indicative of the office’s lack of a standardized policy for the inspection and copying process. She said such a policy should be instituted, and it should include a uniform fee for copies of documents.

Martinez said she doesn’t believe a policy is necessary because the office is complying with the requirements in the public records law.

AG says requesters can bring cameras and scanners

Welsh said it sounds like the Democrats have “run into problems with attitude more than legal compliance” from the district attorney’s office, but she does take issue with Martinez not allowing the party to bring a scanner or camera to copy records.

Phil Sisneros, spokesman for the attorney general’s office, said scanners and cameras should be allowed. The public records act, he said, “requires the custodian of public records for a public body to ‘provide reasonable facilities to make or furnish copies of public records during usual business hours.’”

“This office’s position is that this provision permits a requester to use his or her own equipment to make copies of public records,” Sisneros said.

Martinez said the AG’s office doesn’t make that clear in literature it provides to government agencies to help them comply with the public records act.

The AG’s opinion is not legally binding. No court has ever ruled on whether the act requires that requesters be allowed to bring their own copying equipment.

Lt. Gov. Diane Denish (Photo by Heath Haussamen)

The office of Lt. Gov. Diane Denish says it inadvertently violated the state’s Inspection of Public Records Act late last year when it failed to forward two requests from Republican gubernatorial candidate Allen Weh to another agency that maintained some of the records that were sought.

Last week, after a legal threat from Weh, Denish’s office corrected those violations by forwarding both of Weh’s November records requests to the Department of Finance and Administration, as required by law, and notifying Weh that it had done that.

“We have recently learned that this office should have been aware that another state agency, the Department of Finance and Administration (DFA), had additional responsive documents at the time of our earlier response to you and should have referred your request to the custodian at DFA at the time,” Denish’s chief of staff, Joshua Rosen, wrote in a Friday letter to Weh. “We inadvertently failed to do so.”

The public records act requires that state agencies forward such requests to other agencies that possess the sought documents. That’s designed to be helpful to citizens, because agency records custodians are more familiar with who maintains which records, said Sarah Welsh, executive director of the New Mexico Foundation for Open Government.

Welsh said Denish’s action to correct the violation appears to be sufficient.

“It’s a little frustrating for us, but the courts say, generally, that if you get the documents, no harm, no foul,” Welsh said.

She added that the provision in the public records act that requires agencies to forward requests is “overlooked” frequently. Gov. Bill Richardson’s office recently refused to forward requests for information about the 59 exempt employees his office laid off in January to the agencies that maintain such records.

Weh’s requests

Weh, who is battling four other Republicans for the right to take on Democratic gubernatorial hopeful Denish in the general election, filed two records requests in November. The first sought records related to about $225,000 in federal stimulus funds the governor gave to Denish’s office in 2003. Denish’s office provided Weh with records detailing how almost $87,000 of that was spent. Rosen told The Independent last week that just under $11,000 of the $225,000 reverted because it was unspent.

That left around $127,000 unaccounted for after Denish’s office initially responded to Weh’s request in November.

Weh’s second request sought records of all contracts the lieutenant governor’s office entered into that provided her office “a service or product” since Denish took office at the beginning of 2003. Denish’s office responded on Dec. 1 that the request was “overly burdensome” and said it would take 90 days to fully respond. The request is pending.

Other than failing to forward both requests to DFA, Welsh said it appears that Denish’s office followed the law in responding – assuming it turns out that Denish’s office does possess a great deal of records responsive to Weh’s second request that justify the “overly burdensome” claim.

In fact, Welsh said, many agencies don’t give a specific timeline for when they’ll respond to requests that are overly burdensome, though providing a timeline is recommended by the attorney general.

“We like to see them giving a specific timeline because then a person has an expectation and can hold them to that,” Welsh said. “That’s much better than what we usually see.”

Weh still not satisfied

Weh, however, isn’t satisfied with the way Denish has dealt with the situation. He sent a letter to her office on Jan. 20 threatening legal action over the “overly burdensome” response to his second request and the fact that Denish didn’t account for all federal stimulus spending in response to his first request.

And after receiving Rosen’s letter admitting to and correcting the violation, Weh spokesman Christopher Sanchez said Denish has chosen “to play games with the law” as it relates to these records requests “instead of setting an example of transparency and coming clean on all of it.”

Sanchez pointed to some controversies over the way Denish spent the federal stimulus money, including a portion that was spent on political news releases.

“Voters will eventually learn about her spending priorities, whether she likes it or not,” Sanchez said. “Lt. Gov. Diane Denish may choose to drag her feet on a simple records request, but since the custodian at the DFA is not running for governor this year, we are hopeful that the department will comply with the request in a more timely manner.”

Rosen wrote in his Friday letter to Weh that his office has already provided all documents in its possession related to the stimulus spending, and is on track to respond with Weh’s second request for all contracts within 90 days of Dec. 1 as promised.

In an e-mail, Rosen said the initial failure to forward the requests to DFA was “an inadvertent oversight, and we did our best to correct it.”

Weh isn’t the only one in this political season to be digging for information using records requests. The Democratic Party of New Mexico has a request pending with the office of Doña Ana County District Attorney Susana Martinez, another Republican candidate for governor.

A prior version of this posting incorrectly stated that providing a timeline for response to requests deemed overly burdensome is required.