Copyright © 2015 Albuquerque Journal
No formal complaint or new law prompted Bernalillo County to reverse course and start refusing to release booking photos and other arrest information on teenagers held at the juvenile detention center – a new policy criticized by local media and several attorneys with expertise in public records.
The change came about this spring after the director of the Youth Services Center – a 78-bed detention center in the North Valley – asked county attorneys to review state laws governing the confidentiality of juvenile records.
Craig Sparks, the director, said he sought the review based on his own reading of the Children’s Code. He said he also had been asked, in a meeting with others who work in the juvenile justice system, why the county was releasing the information.
“It wasn’t something we took lightly,” Sparks said of the change.
But the county’s new policy violates the state public records law, several local attorneys said.
The New Mexico Children’s Code says the state Children, Youth and Families Department can’t release juvenile detention records. But that prohibition doesn’t apply to county governments, which run jails and detention centers, the attorneys said. Those agencies are simply directed not to post the information online.
“I think the county is clearly misapplying and misreading the statute,” said Charles Peifer, an attorney for the Journal. “It’s unfortunate that, having interpreted this statute in a consistent way for many years, they decided just two months ago without any advance notice to read the statute 180 degrees the other way.”
The policy was announced and took effect in May without any discussion with news media, with open government groups or by the County Commission. But most commissioners say they will not now intercede.
Gregory Williams, president of the New Mexico Foundation for Open Government and an attorney who has represented the Journal, said it’s clear that counties may release juvenile detention records because the law specifically bars only one method of disclosing them: Counties and similar agencies are prohibited from posting the records on a public website.
There would be no need for such a law if counties couldn’t release the records at all, Williams said.
Martin Esquivel, an attorney who represents KRQE News 13 in public records litigation, said the county created a problem where there wasn’t one and failed to collaborate with news organizations.
“The county’s interpretation has no legal precedent in the 20 years I’ve been practicing media law in New Mexico,” he said Thursday.
Bernalillo County Attorney Randy Autio disagreed with their interpretation. He said it doesn’t make sense to prohibit the release of the records when the state possesses them but allow their release when the county has them.
“We understand that this is subject to interpretation,” Autio said in an interview. “This is our best call given the importance of the protection of the children involved in these cases.”
It would “absolutely gut the statute” if one agency could release the records but not another, he said.
Sparks, the youth center’s director, said the confidentiality provision in the law has been amended a few times over the last decade – in 2009, for example – to make it more restrictive about disclosure.
“My read on it was, it looks like we should be making sure that we keep these confidential,” he said.
Scrutiny over the refusal to release booking information intensified last week after Albuquerque police arrested six teens in connection with the killing of Steven Gerecke, a 60-year-old man shot dead in his driveway June 26, allegedly by a group of juveniles terrorizing the neighborhood in a practice known as “mobbing” that involved breaking into homes and cars.
The youths, who police say continued their rampage even after shooting Gerecke, were arrested as the result of video at a Wal-Mart where a stolen credit card was used.
Four of the six teens appeared in Metropolitan Court for an initial hearing, allowing photographers to take their pictures. The two youngest teens, both 14 years old, were charged as juveniles and appeared in children’s court, where photographers weren’t allowed to take pictures of their faces.
The county refused to release the booking mugs and other detention records for any of the teenagers.
Journal editor Kent Walz said it’s improper for the government to keep those records secret.
“The public has a right to know the full background about how these crimes occurred, who is accused of committing them and how they can be stopped in the future,” Walz said. “If the government is allowed to keep secret basic details about the alleged perpetrators, including their identities and backgrounds, the public cannot effectively contribute to the debate that needs to take place about solutions.”
The Journal is seeking to inspect and copy the photograph, booking sheet and related booking documents in the county’s possession of each juvenile. There has been no request to the county for other kinds of reports or evaluations.
Bernalillo County commissioners don’t sound inclined to intervene.
“I wholeheartedly support releasing all information allowed by law and believe we must take particular care where children are involved,” Commission Chairwoman Maggie Hart Stebbins said. “The statute reads ‘All records pertaining to the child … are confidential and shall not be disclosed directly or indirectly to the public.’ I think we should follow that direction until told by the Legislature or the courts to do otherwise.”
Commissioner Wayne Johnson agreed.
“The question is, ‘Do we want to be on the side of having a judge say that we released information or records inappropriately for a minor, or would we rather have you guys take us to court and get clear direction?'”
Commissioner Debbie O’Malley said she wasn’t familiar with the details of the policy change but doesn’t think the county will change its current interpretation unless there’s a court ruling.
Art De La Cruz was the lone commissioner to express support for reviewing the new policy.
“I do think it needs to be revisited,” he said. “I don’t think any of the policymakers have given it an awful lot of thought.”