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Proposal could shield lawmakers’ emails

SANTA FE – House leaders are proposing a change in legislative rules that could shield some emails sent or received by lawmakers from Inspection of Public Records Act requests.

House Concurrent Resolution 1, sponsored by House Speaker Ken Martinez, D-Grants, and House Minority Leader Donald Bratton, R-Hobbs, stipulates that individual members create public records only when they act in committee and on the House or Senate floor.

Bratton said he interprets that to mean all lawmakers’ email accounts – both state and personal – are exempt from public inspection.

“Probably, the position is going to be that individual members’ emails, whether in their capacity as legislators or privately, are not information that’s accessible under IPRA, because we don’t act singularly in our capacity,” Bratton said of the bipartisan proposal to restrict the release of emails.

Martinez, however, said he had a different interpretation. He said the proposed rule should shield only members’ private accounts.

“What I think every member should do is segregate their emails so that you have a legislative email, which is for legislative purposes – which is subject to IPRA – and private emails which aren’t, just like any other private person,” Martinez said.

The rule change is scheduled to be debated today by the House Rules and Order of Business Committee. It requires approval in both the House and Senate to take effect.

Martinez said different interpretations would be clarified in that hearing.

The proposed rule also would require all IPRA requests related the Legislature to be filtered through the Legislative Council Service, making that agency the custodian of legislative email records. Martinez said the Council Service would create new rules on how legislative emails records are kept or accessed if the rule is adopted.

“We’re part-time volunteers; none of us is going to be able to maintain the (email) records,” Martinez said.

Gwyneth Doland, executive director of the New Mexico Foundation for Open Government, said Bratton’s interpretation of the rule would create a different standard for lawmakers than all other public officials when it comes to releasing emails that relate to state business.

“The public’s right to know is one of the most fundamental rights afforded to people in a democracy, and thanks to the Inspection of Public Records Act, the policy of this state is to give them as much access as possible at every level of government,” Doland said in a statement.

“Exempting the state Legislature from open government law would be step backward into secrecy that’s inconsistent with the great positive steps we’ve made toward transparency,” she said. “Last year we applauded Gov. Susana Martinez for ordering all executive agencies to conduct public business on official email accounts. The Legislature should do no less.”

The email debate heated up last year when members of the Martinez administration sent or received emails dealing with public business on private accounts.

The governor subsequently ordered the executive branch to use the public email system for official business.

Then, the state Republican Party last June submitted a request to view emails related to public business sent or received by Senate Majority Leader Michael Sanchez, D-Belen, dating back to January 2010. Sanchez at the time was facing a contested bid for re-election.

Legislative leadership – both Republicans and Democrats – denied that request saying lawmakers’ emails mails should be treated differently from administration or state employees’ emails when considered for public release because members are citizen representatives who juggle nongovernment work responsibilities alongside state business.

The legislative leaders said new rules would be adopted during this year’s legislative session, which ends March 16.

The proposed rule change specifies that the House and Senate, and chamber committees, “exercise authority collectively and not through the actions of individual members.” The rule also cites various legislative immunities established in the state Constitution that would protect release of some documents that might otherwise be considered public.

“There’s all kinds of communications that come forward, even on our legislative email accounts, that I don’t think anybody could convince me are items that should be in the public realm,” Bratton said.

The Inspection of Public Records Act says emails are subject to the act – which has various exemptions – if they deal with public business and are held by or on behalf of a public body. However, the law has many exemptions, ranging from trade secrets to matters of opinion in a personnel file, that shield them from public inspection.

Attorney General Gary King’s Office has said that emails on private accounts that relate to public business are subject to public release under IPRA.
— This article appeared on page A1 of the Albuquerque Journal