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Lawmakers move to keep emails secret

Copyright © 2013 Albuquerque Journal

Attempts to bring sunshine to state government can lead to odd political alignments.

Take the case of legislators’ emails.

Gov. Susana Martinez, a Republican, and Attorney General Gary King, a Democrat who hopes to oppose Martinez in her 2014 bid for a second term, say legislative emails dealing with public business should be publicly available under the state’s Inspection of Public Records Act – regardless of whether they are on personal email accounts of lawmakers or on the Legislature’s email system.

An overwhelming majority of Democratic and Republican legislators in the House and Senate said absolutely not. They decided – with some limited exceptions – that their emails are exempt from IPRA, regardless of which account they use.

They did this by passing a resolution, embodying a joint rule, rather than a law, in the waning hours of the 2013 legislative session.

The Journal recently tested the rule, filing an IPRA request for emails received by or sent by Albuquerque Sens. Tim Keller and Cisco McSorley, both Democrats, concerning the contract between Expo New Mexico and the Downs at Albuquerque.

Both have been critics of the Downs deal and have accused the administration of not being sufficiently transparent.

The Council Service said there were more than 200 emails fitting the description. The number of emails produced in response to the request: zero.

The rejection said the emails either didn’t fit the definition of public records or were protected from disclosure for other reasons.

Legislators said one reason they enacted the rule was the need to protect the privacy of constituents.

“People have to have a way to communicate with their legislators in private,” Keller said.

“Personally, I’m willing to share anything to do with my work in the Senate, but the average citizen isn’t in the same position,” he said. “Many emails I receive already have a disclaimer on them that the communication is meant only for the recipient. They don’t want it showing up in the newspaper.”

That argument had bipartisan support.

“Constituents do expect privacy,” said Senate Minority Leader Stuart Ingle, R-Portales. “A telephone call is private. Why not an email?”

Ingle carried the resolution in the state Senate and doesn’t use personal email. He does have a legislative email address.

Rep. Brian Egolf, D-Santa Fe, was one of 16 House members to vote against the resolution.

“The bigger issue is all the steps needed to be taken toward more transparency, not less,” Egolf said.

Rule vs. statute

King’s office had said that legislator emails dealing with public business are public record, and that if lawmakers wanted to exempt their emails from IPRA they would likely need to pass a new law or amend the current one.

But either of those options would have required Martinez’s signature, and her office said she would have vetoed a bill exempting the Legislature from IPRA.

And passing a new law or amending the current one presumably would have added more opportunity for scrutiny and comment from media and interest groups.

The Legislature’s email resolution, or joint rule, made the Legislative Council Service the legal custodian of legislator emails. So the Council Service, not individual lawmakers, responds to requests under IPRA.

In addition to protecting privacy of their constituents, legislators who supported the rule also argued their deliberative processes needed protection and that the communications had constitutional immunity from disclosure. They cited the same constitutional provision that protects them from being sued for comments on the floor of the House or Senate.

However, King’s office said the immunity granted under the state Constitution, Article 4, Section 13, is intended to protect legislators from accusations of defamation or other crimes, not to conceal communications with constituents or special interest groups that relate to legislators’ votes.

And the arguments of lawmakers supporting the rule don’t wash with the Martinez administration.

“The Legislature always points out that they’re an equal branch of government – in every regard, I guess, but this one,” said Martinez spokesman Enrique Knell.

Late-night action

With the 2013 session winding down, a House concurrent resolution passed that chamber 48-16 to move on to the Senate, where it passed 39-1. Only Sen. Pete Campos, D-Las Vegas, voted against the resolution in the Senate.

The joint rule set forth in the resolution says legislators act as a “body” during public chamber or committee sessions and therefore actions of an individual lawmaker are private. It was sponsored by House Minority Leader Donald Bratton, R-Hobbs, and co-sponsored by House Speaker Ken Martinez, D-Grants.

As a practical matter, it exempts all emails on personal accounts and severely limits public access to emails on the official accounts of lawmakers.

The New Mexico Foundation for Open Government opposed the rule because it allows a different standard for legislators than other public officials at the state, county and local level.

“The emails of legislators that address public business are public records, even if sent on private email accounts,” said Terry Schleder, NMFOG executive director. “The Legislative Council Service should not shield public records from the public, because doing so goes against our state’s policy of open government.”

‘Citizen legislators’

Months before the Legislature passed the resolution, leaders from both houses and parties showed they were inclined to restrict access to the emails of “citizen legislators” under the Inspection of Public Records Act.

In 2012, Monty Newman, then chairman of the state Republican Party, filed an IPRA for emails and attachments “concerning public business” on Democratic Senate Majority Leader Michael Sanchez’s personal email account.

The response denying Newman access to those records was signed by Sanchez; Ingle; then-House Majority Leader and now House Speaker Martinez; and House Minority Leader Tom Taylor, R-Farmington.

They acknowledged that responding collectively was an unusual step but took it because the issue had implications for all legislators.

“New Mexico legislators are ‘citizen legislators’ who juggle work, family, legislative and other obligations, and the tens of thousands of emails that certainly reside on legislators’ personal email accounts – no two of which are managed in the same way – reflect the diversity of those duties,” they wrote.

They made a veiled reference to the controversy over the disclosures of email traffic using Gov. Martinez’s campaign email addresses for public and private business.

The Martinez administration initially said the communications were not required to be on the state’s official email system because they were “transitory” in nature. However, the governor subsequently issued an order directing executive branch employees to use their official state email accounts for all public business.

The use of the campaign email account came to light through leaks by political opponents of the governor.

Martinez said the campaign website she used in her 2010 election bid had been hijacked. A federal investigation has led to two indictments, including one of a former Martinez campaign worker.

Newman filed his request for emails on the private accounts of legislators after Democrats publicly criticized the fact that public business emails were found on the Martinez campaign account.

However, it does not appear they were received by the intended recipients, because the account was no longer being actively used by the Martinez camp.

Newman’s request sparked a pointed legislative response.

“Requests solely motivated by political purposes will undoubtedly result in a waste of public officials’ time and taxpayers’ money and ultimately erode the public’s trust in government,” the legislative leaders wrote. “Our hope is to avoid that situation.”

They promised to pursue a legislative policy that would eliminate broad requests under the act.