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Records Act 'Sabotage' A Roundhouse Mystery

By Jeff Jones
Copyright © 2009 Albuquerque Journal
Journal Politics Writer

          SANTA FE — Who tried to deep-six New Mexico's public records law?
        It's a Roundhouse mystery with an intriguing cast, including a powerful veteran Democratic lawmaker, a freshman Republican and a behind-the-scenes state lawyer who isn't returning a reporter's calls.
        Some clues seem to lead back to Gov. Bill Richardson's Cabinet-level agencies, but the Governor's Office said he wasn't aware of the attempted hit.
        While questions abound, this much is clear:
        A sweeping rewrite of the state Inspection of Public Records Act was quietly inserted earlier this week into a bill aimed at beefing up the statute.
        And that rewrite, which now appears to be dead after an outcry from the attorney general and open-government advocates, would have gutted the law intended to shine a spotlight into how the state conducts business.
        "If you were trying to sabotage the act, you couldn't have written a more effective bill," said Kip Purcell, president of the New Mexico Foundation for Open Government.
        "It's just an awful piece of legislation — just terrible," said Dana Bowley, executive director of the New Mexico Press Association. "Nobody quite knows where it came from."
        The decades-old records act spells out public access to government records in New Mexico. There are a number of exceptions to the law, including some medical, personnel and law-enforcement records.
        For records deemed public, state agencies must allow inspection of the documents as soon as it is practical but at most within 15 days.
        The statute allows lawsuits and attorney fee awards levied against public agencies that are found to be in violation.
        House Majority Leader W. Ken Martinez, D-Grants, introduced a bill aimed in part at shortening the period of time agencies would have to comply with records requests. The bill, championed by Lt. Gov. Diane Denish, also specified that state agencies must treat faxes and e-mails as official, written records requests.
        Martinez's bill was slated to be heard Wednesday morning by the House Health and Government Affairs Committee. But in its place, a substitute was introduced that contained broad new exceptions to the existing law.
        Ultimately, the committee took no action on the substitute. But the state Human Services Department's top lawyer, Paul Ritzma, testified in favor of it and told the committee he was there on behalf of state executive agencies, state Chief Deputy Attorney General Al Lama told the Journal.
        Under the substitute supported by Ritzma:
        • State agencies could enact their own rules about which records they choose to keep secret.
        • Agencies might be able to withhold memos and letters.
        • Agencies would not be required to release "records of a public body that, by their nature, must be confidential in order for the public body to avoid the frustration of a legitimate government function."
        Open-government advocates said the exceptions could allow state agencies to withhold nearly any document from public view. They called the substitute a "Trojan horse" meant to eviscerate the current law.
        "The bill would almost define 'public records' out of existence," Purcell of the Foundation for Open Government said in an e-mail. "In short, it would be a disaster for the cause of open and honest government."
        Deputy AG Lama, who spoke against the substitute during Wednesday's committee hearing, said it could potentially create "unfettered discretion" in state agencies on disclosing records.
        Freshman Rep. Dennis Kintigh, R-Roswell, said Friday that Ritzma had approached him about the bill rewrite and asked him to lend his name to it.
        "I was trying to be helpful, and I probably should not have gotten myself in the middle of it," Kintigh said.
        "I had a copy. But, truthfully, I didn't read it," he said. "... I would call it a rookie error."
        Martinez said Friday that he also didn't see the substitute until he got to the committee hearing.
        Telephone message from the Journal for Ritzma were not returned, and a state Human Services spokesman referred questions to Richardson's office.
        Richardson spokesman Gilbert Gallegos said Friday that the Governor's Office "was not aware of specific changes proposed for the substitute bill."
        When asked whether Richardson supported or opposed the substitute, Gallegos said:
        "We don't generally comment on legislation that is not part of the governor's agenda."
        Denish, who has said she wants more transparency in state government, told the Journal she does not support the substitute.
        "It guts the bill almost completely," she said.
        Martinez said Friday that he plans to again pursue his original bill.

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