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Copyright © 2017 Albuquerque Journal
Former University of New Mexico Athletic Director Paul Krebs “routinely deleted emails and text messages” that he decided were “not of consequence” from his UNM email account, and he testified in an ongoing public records lawsuit that those purged messages “probably” included correspondence involving other UNM employees or athletics donors.
The retired administrator said he thought what he was doing was allowed by university policy, but also said he didn’t know whether the university had a policy for preservation, maintenance and destruction of public records.
He also testified that he wasn’t aware the state of New Mexico has policies regarding the preservation and destruction of public records.
New Mexico administrative code on public records retention says “routine correspondence and related records of day-to-day office administration” must be held for at least one year after creation. Executive-level correspondence, meanwhile, must be kept permanently.
Krebs was questioned under oath about his record maintenance practices as part of independent journalist Daniel Libit’s lawsuit against the UNM Foundation and the university. Libit wants a judge to declare the foundation a public body subject to the state’s Inspection of Public Records Act.
Attorneys for the foundation, whose mission is to provide fundraising and investment management support to UNM, argue that it is a private, not-for-profit that does not have to comply with IPRA.
Krebs served as UNM’s athletic director for 11 years before retiring amid controversy in June. His Nov. 7 deposition – a copy of which the Journal has reviewed – covered a number of topics, including his working relationship with the UNM Foundation, his interactions with donors and his involvement in crafting the WisePies naming deal for The Pit.
Libit’s attorney Nicholas Hart also questioned Krebs on his response to requests under IPRA and how he determined which of his emails and text messages to retain and which to delete.
Krebs said he “routinely deleted emails and text messages that were not of consequence,” and that he made a subjective determination of whether they were “of consequence.”
He described getting an estimated 200 to 250 emails per day, and those he deleted “probably” included messages that included other UNM employees, UNM Foundation employees and donors.
No records retention policy
UNM does not have a specific records retention policy other than pointing employees to the state administrative code, spokeswoman Cinnamon Blair said. It also does not offer campus-wide training on record maintenance, though Blair said some departments may have their own protocols.
No UNM administrators were available Wednesday to answer whether Krebs’ actions were appropriate, Blair said.
“In order to operate efficiently, I didn’t need a lot of emails on my computer,” Krebs said at one point. “If I didn’t view it as critical, it potentially could be deleted.”
Emails deemed “transitory” are not considered public records. Such messages “are not required to control, support or to document the operations of government,” according to state code, and New Mexico Foundation for Open Government executive director Peter St. Cyr said that’s a narrow category.
“Transitory emails are talking about the administration of an office function – in other words ‘Did you get cake for Jessica’s birthday?’…” he said. “When you are dealing with substantive issues regarding public policy that involves taxpayer money we have a right to know from start to finish the activities of our government.”
Hart also asked Krebs if he had directed employees to delete public records, triggering one of many objections from UNM Deputy Counsel Kimberly Bell. Hart then broached an email recently obtained by the Journal in which Krebs told two subordinates to “delete this email.” The May 11, 2017, message contained a draft of a message to staff about a planned announcement that UNM intended to reinstate its ski team. Krebs signaled in the email to the employees he expected it would somehow reach Libit – who runs the watchdog website NMFishbowl.com – ahead of its scheduled release.
Under Hart’s questioning about the email, Krebs described portions of the message as “somewhat routine” but could not specify which elements. Krebs later said he considered part of the email a “draft of a document that was not ready for public consumption” and that he “typically did not keep drafts.”
But St. Cyr noted a 2012 ruling by the New Mexico Court of Appeals that draft documents from public agencies are public records.
“We’re entitled to know what’s going on from start to finish in the formulation of public policies and spending taxpayer money,” St. Cyr said.
Krebs did not respond to Journal messages this week.
Lawsuit still in discovery
Krebs’ testimony also spoke to the blurred lines between the university, its foundation and the Lobo Club, which raises money for the athletics department. It’s a network that state Auditor Tim Keller recently described as an “ungovernable ball of organizations.” Asked about the agreement between the Lobo Club and the Foundation, Krebs said he didn’t have a clear understanding of it, calling it a “very complicated situation.”
He also said he had paid for donors’ meals at restaurants and that “sometimes” the university would reimburse him for those costs.
An audit by Keller’s office recently criticized the athletics department for using public money to pay for golf packages for donors on a Scotland trip, saying it raised the issue of violating the Anti-Donation Act.
Libit’s lawsuit is still in the discovery phase. A judge has ordered mediation for March, around the same time Hart said the parties will be filing motions for summary judgment. If the case remains unresolved, Hart said it would go to a bench trial later in the spring.