“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.

Following a series of well-publicized ethical and legal lapses by PRC officials, the state’s top regulatory agency surveyed its employees’ understanding and concerns about professional ethics.

More than 80 percent of respondents reported unethical behavior at the agency in the past year, and half reported being asked to do something they believed to be unethical.

That prompted outgoing PRC Chief of Staff Johnny Montoya to call for an ethics and transparency overhaul.

But ironically, the agency was reluctant to release the survey responses to the public.

“The Public Regulation Commission released its anonymous employee ethics surveys late last year with huge portions blacked out,” FOG Executive Director Sarah Welsh said. “FOG said we wouldn’t challenge the withholding of comments about individual employees, but we think the public has a right to see allegations regarding the five elected commissioners.”

Privacy protections for public employees “simply don’t apply” to PRC commissioners, Welsh said.

Commissioners are elected representatives, Welsh emphasized, “and they’re accountable directly to the public.”

PRC Commissioners Jason Marks, Sandy Jones and Jerome D. Block Jr. agreed May 6 to release portions of the survey comments staff made about each of them.

But the disclosed pages posted on the FOG website contain entire paragraphs of blacked-out text, presumably redacting descriptions of allegations against public employees.

“Marks, to his credit, has spoken in favor of releasing the information since the beginning, and he cast the lone vote to comply with FOG’s request back in late March,” Welsh said. “We’re still waiting to hear from Carol Sloan and (PRC Chairman) David King.”

Disclosure of the surveys is a matter of law and principle, Marks told The Independent Wednesday.

“From a legal standpoint, I have consistently taken the position that the ethics survey responses should be released, except for comments whose release is specifically prohibited by NM law,” such as opinions about public employees, Marks said. “As a citizen, I find it frustrating and wrong when elected officials conceal documents related to what they are doing in their official capacities, for example when former Vice President Cheney withheld schedules that would have revealed who he met with on energy policy issues.”

Many staffers complained that there appears to be a different ethical standard for commissioners than employees, a source of low morale, outgoing interim Chief of Staff Johnny Montoya recently acknowledged.

Heavily-redacted copies of questionnaires were disclosed to FOG in response to Welsh’s request, which was filed under the state’s Inspection of Public Records Act.

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.

Photo by Sara Grajeda

A bill that would require the Educational Retirement Board to publicly disclose the pension amounts for each of its 30,000 members passed the Senate Tuesday night and will now go to the governor for his signature. As The Independent reported in December, a state law passed last year prohibited disclosure of such information.

The Independent discovered the new rules in December, when in the course of investigating double dipping, it requested pension amounts for retirees. Retirees who return to work do not contribute to the pension system–but the state continues to pay into the system on their behalf.

During the floor debate, Senate Majority Leader Michael Sanchez asked if members would be able to opt out of such public disclosure.

“No one can opt out of this,” said Steve Fischmann, D-Las Cruces, who presented the bill sponsored by Rep. Jack Thomas, D-Rio Rancho.

“You must be able to disclose their disability or their pension amount…that is public information,” Fischmann said.

After more questions from Sanchez, Fischmann clarified that the disability benefit amount–but not the nature of the disability–would be public information.

Sanchez repeatedly questioned whether the bill might somehow jeopardize patient confidentiality and Fischman repeatedly denied that it would.

“Why would we need this bill?” asked Sen. David Ulibarri.

“Right now we’re frankly out of compliance with the legal requirements …of public information and this brings us into compliance. ..The salaries and benefits and the contributions are all public record and are required to be public record,” Fischmann responded.

“Because it’s public money paying for these pensions, disclosure is required,” Fischmann added, in order to comply with the New Mexico Inspection of Public Records Act.

IPRA prohibits the release of any medical records.

Sen. Richard Martinez opposed the bill on privacy grounds, saying “I’m retired and I really don’t think it’s anyone’s concern what I’m making in my pension.”

In his closing statement, Fischmann acknowledged the privacy concerns.

“This is simply an attempt to be sure we come into conformity with the current IPRA act and some small attempt to come into parity with PERA. I certainly und the chamber’s concerns and…maybe we need to go back and look at IPRA itself,” he said.

The measure passed by a vote of 21-18, with Sens. Richard Martinez, Mary Kay Papen, Nancy Rodriguez, George Muñoz, Linda Lovejoy, Cynthia Nava, Mary Jane Garcia, Howie Morales, Bernadette Sanchez, John Arthur Smith, David Ulibarri, Kent Cravens, William Sharer, Clint Harden, Steven Neville, Carroll Leavell, Gay Kernan and Dianna Duran voting in the negative.

After the vote, Sarah Welsh of the Foundation for Open Government told The Independent: “I’m glad that the Senate voted for more transparency for public money. …We’re giving out taxpayers’ money and they have a right to monitor expenditures. That’s the idea of government for and by the people.”

The Santa Fe New Mexican’s Kate Nash didn’t get much – including anything that identifies the people who are being laid off – in response to her request.

“All I got back were a bunch of e-mails I and other reporters sent on the topic. Oh, and the press releases sent to us media on the lay offs,” Nash wrote in a posting on her blog. “Nothing else that gives any clue as to who was laid off. No letters to people who were fired. No letters to the department heads of people who were to be fired. Nothing outlining who would be chosen to get the boot or how.”

“Does anyone else find it hard to believe that e-mails from reporters on this subject are the only documents out there on this topic?” Nash asked.

Because we’re dealing with attorneys and the wording of requests is important, Nash revealed that her request sought from the governor’s office “any or all correspondence, including but not limited to e-mails and traditional mail, written memos or other communication, to or from anyone in your office related to the 59 people who were notified this week they are being laid off.”

The governor’s office has until Thursday to respond to my request, which asked for “any information available (such as, but not limited to, a list) about which 59 exempt employees are having their positions eliminated, which departments they work in and what salaries they were being paid before their positions were eliminated.”

Photo by Sara Grajeda

The New Mexico Independent, with experts from the New Mexico Foundation for Open Government, on Tuesday night hosted a free seminar on the Inspection of Public Records Act (IPRA) and how to obtain government information. Click the box below to watch the video of the seminar and read a transcript of the live blog.

Part of the seminar includes a Power Point presentation; you can download that Power Point here and follow along. We also look at a sample IPRA request letter and the IPRA Guide.

After the presentation, we had a great question and answer session with Sarah Welsh, executive director of the New Mexico Foundation for Open Government, and Kip Purcell, who is an attorney with the Rodey Law Firm and the FOG board president.

We talked about what’s considered a public record in New Mexico, how to request records, what the law requires of government agencies, and what options you have if you receive a denial.

If you watched the seminar live, or if you’re watching the webcast afterwards, would you mind telling us what you thought of it? Please take our very brief survey.

The seminar will be held from 5:30 until 7:30 p.m. on Tuesday, Dec. 1. If you’d like to join us in person, e-mail gdoland@newmexicoindependent.com RIGHT NOW. You’ll be able to ask questions of the presenters and you’ll go home with a packet full of information.

You can also join us live online and have the opportunity to ask questions of the presenters, Sarah Welsh, executive director of the New Mexico Foundation for Open Government, and Kip Purcell, who is an attorney with the Rodey Law Firm and the FOG board president.

At the seminar, we’ll talk about what’s considered a public record in New Mexico, how to request records, what the law requires of government agencies, and what options you have if you receive a denial.

If you’d like to watch the seminar live online, enter your e-mail address in the form below and we’ll send you a reminder when the webcast and live blog begins.

The seminar will also be webcast live, from 5:30 until 7:30 p.m. on Tuesday, Dec. 1.

It will also be archived here for you to watch any time.

At the seminar, we’ll talk about what’s considered a public record in New Mexico, how to request records, what the law requires of government agencies, and what options you have if you receive a denial.

There are still seats available for the free seminar, which will take place in the KNME-TV studio. If you’d like to join us in person, send an e-mail to gdoland@newmexicoindependent.com.

Participants joining the webcast will have the opportunity to submit questions for the presenters.

If you’d like to watch the seminar live online, enter your e-mail address in the form below and we’ll send you a reminder when the webcast and live blog begins.