Copyright © 2017 Albuquerque Journal
SANTA FE – Secrecy is the exception under New Mexico’s open records law.
The Inspection of Public Records Act makes it clear that lawyers, journalists and all other members of the public are entitled to the greatest amount of information possible about the work of their government, with just a few exceptions.
But state lawmakers this session are debating whether the law goes too far.
They’ve heard proposals to keep secret the identities of applicants for government jobs, remove information that identifies victims and witnesses listed in certain police reports and shield some university research from disclosure, among others.
One measure – a proposal to limit the public disclosure of checks issued by a government but not yet cashed – has already cleared the Senate and is under review in the House.
Gregory Williams, board president of the New Mexico Foundation for Open Government, a nonpartisan advocacy group, said the efforts to carve new exemptions into the Inspection of Public Records Act are nothing new.
“This is, unfortunately, normal,” Williams said in an interview. “Basically, every session we deal with several attempts to roll back public access to public records.”
So far, the public records act, passed in the 1970s, has remained intact.
But records kept by public universities, in particular, are often a point of debate. Just this year, current or former university officials have testified in favor of bills to restrict disclosure of job applicants, parts of police records and research.
During a recent floor debate, Sen. Jacob Candelaria, D-Albuquerque, said lawmaking often requires an effort to balance competing interests. He is pushing to exempt from public disclosure identifying information regarding witnesses to and victims of certain crimes, such as rape and stalking.
“It’s not an attempt to live in darkness,” he said, just because a lawmaker wants to discuss policy goals that would change the public records act.
“I don’t think that’s healthy for democracy – to hide behind some kind of smokescreen” every time a transparency question comes up, Candelaria told his colleagues in a recent meeting of the Senate.
Each proposal, nonetheless, is generating robust debate.
Sen. Bill Tallman, D-Albuquerque, didn’t expect much controversy this session when he asked the Senate to support Senate Bill 158, which would prohibit disclosure of “outstanding warrants” on government checks that haven’t been cleared by the bank.
Tallman described the documents as essentially uncashed checks, and he said “unscrupulous” people were requesting the warrants, then altering them so they could cash the check themselves. He said he sponsored the bill at the request of state Treasurer Tim Eichenberg.
The measure passed on a 32-7 vote after significant debate.
Sen. Joseph Cervantes, D-Las Cruces, was among the dissenters. Government agencies can almost always find an excuse for why they shouldn’t have to disclose information, he said, but sunshine is the better policy.
“Democracy is very inefficient and messy,” Cervantes said. “I think we have to embrace that sometimes.”
Protection vs. transparency
As the Legislature enters its last two weeks, debate over open records may intensify. Besides potential changes to the records law itself, there are other transparency debates before lawmakers this session, such as proposals to create a Public Accountability Board that wouldn’t release ethics complaints unless there’s a finding of misconduct and a measure that would keep customer information confidential at the spaceport.
Rep. Jim Dines, an Albuquerque Republican, spent decades working in open-records law before retiring from his legal practice. He doesn’t believe the Inspection of Public Records Act is too broad.
“I think it’s one of the best protections for our citizens to learn what’s going on in the government,” he said in an interview.
Candelaria said the consideration of public-records bills doesn’t mean a lawmaker is anti-transparency. There are good reasons that a taxpayer’s private information is kept confidential, he said.
“We all believe very firmly that transparency and openness are important in government,” Candelaria said as the Senate debated Tallman’s bill recently.
Meanwhile, Candelaria’s proposal on witness and victim confidentiality is ready for action on the Senate floor, though it isn’t clear when it will be voted on.
Williams, the FOG president, said he understands that the sponsors of bills to scale back IPRA mean well and are trying to solve a specific problem. But their solutions are often too broad, he said, going beyond the problem they want to address.
The open records law as it stands now is a strong one, Williams said.
“Our Legislature has found it important to keep our government as open as possible,” he said, “and that’s a good thing.”
A closer look at the legislation
Among the proposals triggering debate this session:
- Senate Bill 149 would empower New Mexico’s law-enforcement agencies to keep secret the names of victims of and some witnesses to rape, stalking and similar crimes.Sen. Jacob Candelaria, D-Albuquerque, is the sponsor. He and other supporters say it would prevent retaliation and spare rape victims from having their names made public.
The Foundation for Open Government and other opponents say it would interfere with the public’s right to view police records. Without access to names, it’s difficult to verify the official statements released by police or gauge the strength of a case that’s led to someone’s arrest. And media organizations generally avoid identifying rape victims when covering criminal cases.
The proposal has cleared two Senate committees unanimously and is awaiting action by the full Senate.
- House Bill 267 would exempt from public disclosure “data, records or information of a proprietary nature” generated by university research before the information is published or patented.
It’s sponsored by Reps. Jason Harper, R-Rio Rancho, and Carl Trujillo, D-Santa Fe.
The bill has not yet cleared its first committee. Members of the House Education Committee asked the sponsors to make the proposed exemption more narrow.
- Senate Bill 93, sponsored by Sen. George Munoz, D-Gallup, would have kept secret the names of applicants for public jobs in New Mexico.
The Senate Public Affairs Committee voted unanimously to table the bill. Opponents said transparency helps build public trust and shine a light on cronyism.
- House Bill 10 would create a state Public Accountability Board that would enforce campaign-finance reporting regulations, state sunshine laws and other ethical rules.
The measure has faced criticism because the board would do much of its work in secret, unless there’s a formal finding of misconduct in response to a complaint.
Supporters said that’s necessary to protect people from frivolous complaints with unfounded allegations.
The bill needs approval by the House Judiciary Committee before it will reach the House floor.The sponsors are Sen. Daniel Ivey-Soto, D-Albuquerque, and Rep. Daymon Ely, D-Corrales.
- Senate Bill 429 would create a Spaceport Confidential Records Act.
It’s sponsored by Senate President Pro Tem Mary Kay Papen, D-Las Cruces, and needs approval by two committees before it could reach the Senate floor.
The measure would make customer information confidential, along with “cyberinfrastructure” and security information.
- House Bill 505 would remove public access to some criminal records. It would allow people to apply to have a criminal conviction expunged from their record in limited circumstances.
Supporters say a criminal record can keep someone from getting a job and that it isn’t fair for one mistake to follow a person for the rest of his or her life.
Opponents say it’s bad policy to destroy or hide public records, especially when it comes to the work of law enforcement.
The proposal is sponsored by Rep. Antonio “Moe” Maestas, D-Albuquerque.