The local firefighters union and two Albuquerque Republicans are pushing legislation that would make statements given by firefighters and paramedics during internal investigations off limits to the public, prosecutors and even targets of the investigation absent a court order.
While the legislation sponsored by Rep. Paul Pacheco and Sen. Sander Rue is limited to firefighters, open government group spokeswoman Susan Boe said it was clear from discussion during committee hearings “that the intent is to eventually protect police officer statements from public disclosure.”
Firefighters union President Diego Arencon said in an interview that the union doesn’t want statements given in internal investigations made public under the state’s Inspection of Public Records Act.
“Those statements should be for internal use only,” Arencon said. “Unless a judge rules that someone has the right to them.”
The city of Albuquerque has released such statements under IPRA in cases involving both firefighters and police officers, most recently in regard to a number of shootings by Albuquerque Police Department officers.
Arencon said the legislation, which doesn’t include any language detailing under what circumstances a judge might order disclosure, would serve as a deterrent for people who seek to obtain these statements “to cause harm or retaliate against witnesses, who give truthful statements, that may cause employment consequences for targets of an investigation.”
House Bill 254 passed the House on Saturday by a vote of 51-10.
Rep. Jim Dines, R-Albuquerque, said he voted against the bill in the House Judiciary Committee “because I don’t believe these statements should be kept secret after the investigative process is completed. How else can the public evaluate the accountability within the department without access to those statements?”
Pacheco, a retired APD officer and former head of the police union, did not respond to telephone messages or email questions about the bill.
But Rue said he expects the bill to undergo close scrutiny in the Senate Judiciary Committee.
“I expect they will look at all the ramifications of the bill,” Rue said. “There are very good attorneys on that committee.”
The bill’s title appears to be directed at so-called “Garrity” statements. These are statements public employees are forced to give, agreeing to waive their Fifth Amendment right against self-incrimination or be fired. Those statements can be used in the disciplinary process but are not supposed to be used in any criminal proceeding or investigation.
But the body of the bill refers to all compelled statements given by firefighters or paramedics in internal investigations.
Arencon acknowledged in the interview that it includes all statements given during a fire department internal investigation – including internal investigations into sexual harassment, insubordination and other personnel issues.
“Any public employee has to answer questions in an internal investigation, whether they are the subject of the investigation or not. Those statements should be protected as well,” he said.
“Under IPRA, the person who was fired could get those statements (and) in a matter of days, there could be retaliation. This way there is a judge acting as an intermediary.”
Statements and internal reports have been released to the media and targets of investigations in some high-profile cases, including disciplinary cases that led to a civil lawsuit filed by three firefighters against the Albuquerque Fire Department claiming discrimination in the way their personnel cases were handled.
Another high-profile case surfaced recently when a woman firefighter filed a civil lawsuit claiming the department failed to act on sexual harassment complaints. She said she found a camera pointed at her bunk at her fire station while the case was pending.
Susan Boe, executive director of the New Mexico Foundation for Open Government, said there is concern that similar restrictions to public access will be granted to internal police investigations or investigations of civilian public employees.
“We feel if the Legislature is going to bring any clarity to this issue, the balance is on the public policy of transparency,” she said.
Meanwhile, the Attorney General’s Office has told the Legislative Finance Committee that the compelled statements may already be protected from disclosure.
Some personnel records and parts of internal personnel investigations are exempted from disclosure under IPRA, including “letters or memoranda that are matters of opinion in personnel files.”
Those records include internal evaluations, disciplinary reports or documentation, promotion, demotion or termination information and performance evaluations, according to the Attorney General’s review of the legislation.
Open government advocates, however, argue that much of what is in those documents does not fall under the protected “opinion” category.
Arencon said city and county governments around the state differ in how they interpret the exemption to IPRA.
“Some will release statements,” he said. “Others won’t. This (the bill) would give us some clarity on the issue.”
The Administrative Office of the Courts noted that there is no guidance to judges on when a court can order the release of a statement under the statute as written.
Public access to internal fire department investigations is already partially restricted by federal privacy laws protecting personal medical information.