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Proposal by NMSU would limit access to public records

Copyright © 2015 Albuquerque Journal

New Mexico State University plans to propose extensive changes to restrict the reach of the state’s public records law – amendments that transparency advocates call “troubling” and vow to fight.

A document prepared by NMSU and obtained by the Journal describes a litany of proposed exemptions to the Inspection of Public Records Act, including some that would make secret much of the public sector hiring process and certain law enforcement activities.

The changes have also been a topic of discussion at the Council of University Presidents, made up of the heads of seven New Mexico public universities.

“All of the proposed changes are very troubling,” said Albuquerque attorney Greg Williams, president of the New Mexico Foundation for Open Government.

Williams said the proposed amendments – should they make it into legislation – represent “the most substantial revision of IPRA since it was enacted.” The changes, he said, “would serve to severely restrict access to information by the public.”

IPRA dates to 1977, although it has been revised, and is New Mexico’s version of the federal Freedom of Information Act, but it provides far greater public access.

NMSU President and former Gov. Garrey Carruthers said the effort stems from the university’s recent experience hiring a new athletics director.

He said several qualified candidates pulled out of the running when they knew their names could be made public.

“We wanted to see if we could get some kind of relief where, much like for the presidents of universities, you have to provide to the public five finalists but up to that point you can keep it confidential as you go through the vetting process,” Carruthers said in a telephone interview. “But it’s pretty clear to me that, for certain jobs, it has a very dampening effect on getting a pool together.”

Jamie Koch, current UNM regent and the former New Mexico legislator who sponsored both IPRA and the Open Meetings Act, said, “I don’t think anything they’re recommending should be done, period.”

“I would say maybe it needs to be toughened and not weakened,” Koch said.

New Mexico courts have disagreed with the notion that IPRA should take a back seat in the public hiring process.

In 2009, FOG and the Farmington newspaper The Daily Times won a court fight to get records of all applicants for the position of city manager. The city of Farmington had refused to produce the records but first the state District Court and then the state Court of Appeals ruled that “when, as here, the application is for a high-ranking public position, the public’s interest in disclosure outweighs the City’s concern that fewer people will apply, and, thus, disclosure is required.”

Since then New Mexico’s Supreme Court has further opened public access to records in decisions in other cases, narrowing or eliminating the grounds on which they can be denied. Courts have relied on language legislators put into the law that says it is the public policy of the state to allow citizens “the greatest possible information regarding the affairs of government.”

Long history

Universities in New Mexico historically were among the most resistant to public records requests.

The Albuquerque Journal, KOB-TV and the New Mexico Foundation for Open Government sued the University of New Mexico in the 1990s seeking the names of applicants for the position of president. That ended with a settlement governing at what point in the search process names and other records had to be produced in response to an IPRA request.

The Journal and FOG prevailed in a similar lawsuit some years later, and argued that all applicants should be made public. The result of that case led to a statute requiring universities to make at least five finalists public within 21 days of making a decision, even though other public bodies must release all applicants upon request.

The plaintiffs in both cases argued the public had no way of knowing whether good candidates who applied were overlooked or whether candidates with certain connections might be given preference over better qualified applcants.

In preparing its current proposal, NMSU branches out beyond university records to include new restrictions on what the public can obtain from other public agencies, including police.

The amendments include:

  • An exemption to keep secret the identity of applicants to public jobs, including university and other public sector hires;
  • An exemption to limit access to records revealing the identity of individuals making civil rights complaints, as well as those accused of civil rights violations but not yet found guilty;
  • Various exemptions for law enforcement records “that could reasonably be expected to interfere with law enforcement proceedings” or that “would deprive a person of a right to a fair trial” or that “could reasonably be expected to constitute an unwarranted invasion of personal privacy;” and
  • An exemption for “trade secrets and proprietary information” provided to universities to support research activities.

“We’re a little shocked at the extent of the suggested changes,” said NMFOG executive director Susan Boe,

With regard to the exemptions to keep private the identity of applicants to public sector jobs, Boe said, “Our position would be that public employees are important to our democracy and we have a right to know who is applying.”

“The presumption under the law is that records are public and the public should have the greatest access it can,” said Jim Dines, a retired attorney who has represented the Daily Times and the Journal in the IPRA cases. “What this does is flips that on its head to say that, because of all the exemptions, the presumption is secrecy, and you the public have to prove otherwise.”

The revisions would have to be written as draft legislation and sponsored by a legislator before they could be debated by either the House or Senate. The Legislative Council Service drafts bills for legislators and public agencies but cannot comment on potential bills, according to assistant director John Yaeger.

Carruthers said NMSU has not sought a sponsor for legislation and is in talks with the Foundation for Open Government to see where there may be compromises.

“We’re going to get a lot of opposition from your estate,” Carruthers said, referring to the press, “and we understand that.”