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Editorial: Legislature should let sun shine on emails

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While government at all levels increasingly is embracing the public accountability that comes with transparency, some in the Legislature are moving in the other direction.

Citing the privileges and immunities clause in the state Constitution, the House on Sunday voted 48-16 to send a concurrent resolution to the Senate that would limit public access under the Inspection of Public Records Act to records such as emails to and from lawmakers doing their official business.

The resolution is actually a directive to the Legislative Council Service to come up with a process for handling legislative emails and is sponsored by the top legislative leaders of the two political parties, Speaker Kenny Martinez, D-Grants, and Minority Leader Donald Bratton, R-Hobbs.

Bratton has made his views clear. It’s hands and eyes off when it comes to the public.

He says subjecting such communications to possible public scrutiny under IPRA — a statute with many exemptions limiting what records must be made public — will “make it very difficult for us to do our job in an effective manner.”

He goes on to say he sees no difference between one of his emails and a telephone call. That analogy likely came about because many legislators use their personal email accounts to conduct public business, and that is really the crux of this issue. The attorney general has said such records are public regardless of where they reside.

Spurious arguments also have been advanced that steps are needed to protect private matters lawmakers deal with from inspection under IPRA. In fact, IPRA governs only those matters dealing with public business.

As for the immunity argument, the U.S. Supreme Court in cases involving a similar federal clause on which New Mexico’s is based, has found it does not protect “informal contacts with constituents and other sources of information and opinion.”

A legal analysis by the New Mexico Foundation for Open Government concluded that “to accept the argument that legislative emails outside the confines of ‘formal, official proceedings’ are immunized from IPRA … is to place legislators above the law whenever they claim to be conducting legislative business outside the Roundhouse.”

The attorney general weighed in on Monday, also concluding the immunity clause doesn’t provide for this secrecy and further stating that a legislative rule can’t trump IPRA.

Lawmakers, could, of course, amend IPRA to exempt themselves. Assuming Gov. Susana Martinez would sign such legislation — she wouldn’t — they would then have to answer to voters. When confronted last year with the issue of members of her executive branch conducting public business on private emails, Martinez responded by directing agencies under her authority to use public email for public business.

It would be nice if some of the bipartisan cooperation in this case could be turned around toward greater transparency rather than trying to come up with a way to escape it.

This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.

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