“Evil is nourished and grown by concealment.”
Happy Sunshine Week!
It starts today, and it is being celebrated in New Mexico and across the nation to showcase how access to public information is one of the cornerstones of democracy – an element essential to allowing citizens to hold their government accountable.
Transparency is one of those concepts that most every politician advocates for, until it’s inconvenient. Being transparent isn’t always easy, but it’s the only way for a responsible government to operate. In the words of Louis Brandeis: sunlight is the best disinfectant.
Aphorisms aside, Sunshine Week is a good time to take stock of some of the transparency battles waged in New Mexico over the last year – the wins, the losses and those that are still being waged.
Transparency ended up winning this court battle, but not before a serious challenge.
During a trial involving the prominent Abruzzo family and an in-law, state District Judge Alan Malott barred a news reporter – and anyone else in the courtroom that day – from disclosing or publishing certain financial information that might emerge in open court. Anyone violating this order could be charged with contempt and jailed, and a motion to lift the order was denied. The Journal and New Mexico Foundation for Open Government asked the state Supreme Court to intervene, arguing that the judge’s order constituted unlawful prior restraint. Five months later, the state’s high court overturned the gag order. In doing so, it agreed that it was an unconstitutional prior restraint that far exceeded a judge’s powers – thus upholding one of the fundamental tenets of First Amendment law: that a judge can’t keep the media from reporting information except in very narrow circumstances. In its ruling, the Supreme Court also affirmed another basic tenet of the judicial system, that what is said in open court is public.
While that battle played out in the courts, several others have been waged in the Legislature. One involved Spaceport America, a $220 million taxpayer-owned facility in southern New Mexico. The taxpayer-funded, public agency that oversees the Spaceport insisted it needed a special confidentiality exemption in order to be competitive with other spaceports across the country. At one point, Spaceport officials backed a proposal that specifically said the Spaceport could keep tenant identities secret and clearly shielded how much rent those tenants were paying.
It was a tough dilemma for lawmakers: Spaceport officials argued that without such secrecy, the state was tossing the $220 million already spent down the hole. They did not produce any evidence – other than the fact that so far they have not had much luck attracting big-name tenants.
Several lawmakers, the New Mexico Press Association, FOG and local news organizations fought against those sweeping confidentiality provisions, while also trying to find a compromise. In the end lawmakers and the governor approved a bill that exempts from public disclosure aerospace customer information that would cause “substantial competitive harm” to the company. The exemption must be based on “specific factual evidence.”
The next step will be to see how broadly Spaceport officials interpret that language. Will they try to use the exemption to keep tenants’ identities secret? Will the public stand for that? Will courts eventually have to decide? Stay tuned.
Gubernatorial contingency fund
Lawmakers and the governor, meanwhile, signed off on a law that shines some light on the gubernatorial fund that has historically been used to pay for dinners and receptions. The law, which goes into effect next January, makes the contingency fund subject to audit and requires that monthly reports be filed about expenditures from the fund. In a message to lawmakers, Martinez said New Mexicans deserve to know how the governor is spending taxpayer dollars. But she criticized legislators for not making their own emails subject to public inspection.
The University of New Mexico has taken center stage this year in the issue of transparency – resulting in several investigations, including one by the attorney general, which is looking at, among other issues, how well it follows the Inspection of Public Records Act. Among a number of high-profile missteps, former Athletic Director Paul Krebs admitted under oath that he “routinely deleted emails and text messages” that he decided were “not of consequence” from his UNM email account, an apparent violation of state rules. The testimony was part of an ongoing public-records lawsuit filed by an independent journalist.
A new UNM president is stepping in to lead the state’s flagship university this month. Let’s hope she takes this issue seriously and makes it clear to everyone at UNM the university respects the pubic’s right to know and won’t tolerate any efforts to circumvent it.
And then there’s the city of Rio Rancho, which was told by the Attorney General’s Office in October that charging citizens $30 for copies of 911 call recordings was excessive and might violate the state’s Inspection of Public Records Act. Rio Rancho officials fired back, saying they disagreed and might actually start charging more.
Rio Rancho city officials should wake up and realize they work for the public and it’s wrong to put up barriers that discourage members of the public from accessing information that they’re entitled to.
One of the biggest transparency issues our state is grappling with is the push to make virtually all juvenile criminal records secret. The rule changes being considered by the judiciary would automatically seal records in juvenile cases, although records of juveniles 15 and older who are charged with first-degree murder would apparently remain public. The debate largely centers on whether the privacy of offenders under 18 outweighs the public’s right to view court files in these cases.
Opponents say the rule changes would deprive the public of its right to know what happens in certain cases involving juveniles – and even those whose job it is to reach out and help troubled youths as well as those affected by the crimes could be left in the dark.
Here’s hoping the state Supreme Court chooses transparency on this important issue.
Journalists and other transparency advocates have been battling for sunshine for centuries. But at the end of the day, it’s up to everyday citizens to recognize why it’s important for their government to be transparent and to demand that transparency.
Our democracy depends on 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.