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AG: Legislators can’t shield emails

SANTA FE – Attorney General Gary King weighed in Monday on a proposed legislative rule to limit public release of lawmakers’ documents, saying lawmakers’ constitutional immunity doesn’t extend to making emails and other documents private.

The analysis from King’s office came after the House voted 48-16 Sunday to advance to the Senate the proposal outlined in House Concurrent Resolution 1.

The rule stipulates that legislators act only as a body during public chamber or committee sessions and, therefore, actions of an individual lawmaker are private, according to the rule’s sponsor, House Minority Leader Donald Bratton, R-Hobbs.

Bratton and other supporters of the rule change have cited a unique constitutional immunity for legislators that, they say, allows documents to be withheld.

But King’s office said Monday that the immunity granted to lawmakers is intended to protect them from accusations of defamation or other crimes, not to conceal communications with constituents or special interest groups that relate to members’ legislative votes.

“On its face, (the immunities clause) does not appear to protect public records created, maintained or held by legislators or legislative aides and employees from disclosure under IPRA, and it does not appear that New Mexico courts have interpreted (the immunity) to provide that protection,” the legislative analysis published by King’s office said.

The rule’s co-sponsor, House Speaker Ken Martinez, D-Grants, said Monday that he had not seen King’s analysis. However, he said his intent with the rule change is not to shield lawmakers’ documents.

“I think it’s just saying even if there’s not a written statutory exemption and if there’s another very compelling reason under the (constitutional) privileges and immunities clause, we may not have to give it,” Martinez said. “The only (example) I could think of is a very coincidental communication from a constituent.”

Bratton declined to comment Monday.

King’s office said lawmakers would likely be required to pass into law a new statute that exempts them from IPRA requests to keep their emails and other documents private without violating the state open records law.

The New Mexico Foundation for Open Government has said it opposes the rule change because it would allow a different standard for legislators than other New Mexico public officials, including city councilors and county commissioners, who under IPRA are required to release personal documents and emails if they relate to public business.
— This article appeared on page A4 of the Albuquerque Journal