Sunday, September 16, 2007
State Winning License Fight
By Mike Gallagher
Copyright © 2007 Albuquerque Journal; Journal Investigative Reporter
The state of New Mexico has issued an estimated 30,000 driver's licenses to foreign nationals, requiring them to present only one form of identification such as a card issued by the Mexican consulate.
And the Richardson administration has fought tooth and nail to keep from providing a list of those licenses to state Republican Party officials who want to cross-check them against the rolls of registered voters.
The GOP argument is that the licenses, which aren't distinguishable from those issued to citizens, can be used as identification to register to vote which non-citizens are not allowed to do.
So far, the state is winning the legal fight.
District Judge Valerie Mackie Huling of Albuquerque ruled recently that state and federal anti-stalking laws trumped public records arguments and the GOP's attempt to make sure non-citizens aren't voting.
The dispute began last year when the Republican Party sought access to MVD records compiled for an audit to determine the validity of documents used by foreign nationals to obtain state driver's licenses.
Gov. Bill Richardson ordered the audit after allegations that Mexican nationals and others were using phony documents to obtain driver's licenses and identification cards from a Tijeras MVD office last summer.
The department issued the results of the audit last month, which found 63 questionable licenses out of the 12,275 issued for which the department had supporting documentation either a "matricula" card from the Mexican consulate office or a tax identification number from the IRS.
Another 18,000 licenses identified as being issued to foreign nationals weren't audited because MVD field offices didn't keep photocopies of source documents used to prove identification numbers and for proof of New Mexico residency, according to spokesman David Harwell.
Public Records Act
In addition to the license information, which would include a name and address, the Republicans also sought documents compiled for the audit.
In response to the request, the state released heavily redacted records and refused to release the lists of licenses compiled for the audit.
Unsatisfied, the state GOP and Lyn Ott, director of the Help America Vote Act for the state party, filed a civil lawsuit under the state's Inspection of Public Records Act.
Huling ruled the state GOP can't have access to driver's license personal information because of the federal Drivers Privacy Protection Act and a similar state law.
In a letter to attorneys, Huling wrote that she found none of the documents she reviewed in secret "contain information that would suggest the voting process has been compromised."
Robert Johnson, executive director of the New Mexico Foundation for Open Government, said in an interview prior to his death earlier this month that he was puzzled by the ruling because "the state argued that these records are sacrosanct.
"These records are not locked away," Johnson said. "There are at least two data collection companies that offer access to these records to a wide range of entities willing to pay for it."
Julia Belles, a staff attorney for the Taxation and Revenue Department, said that under federal law, MVD has "a duty to protect the confidentiality of not only driver's license information, but a wide range of information.
"If we respond to a public records request and the department is found to be in violation of those confidentiality laws, the employees can face criminal charges and the department can face daily fines," Belles said.
Johnson's response: "Far from keeping driver's license (information) sacrosanct, the department has been trying in at least two legislative sessions to create a profit center for itself by selling the information through a special agent."
Belles said any data collection company that distributes the information from driver's licenses is bound by the same federal and state laws as state employees.
Drivers Privacy Act
The federal Drivers Privacy Protection Act was passed in the 1990s as an anti-stalker law and restricts states from releasing driver's license information. It was upheld in a unanimous U.S. Supreme Court Decision in 2000.
The federal law has 14 major exceptions regarding who can access the information. The list includes law enforcement agencies, courts and car insurance companies.
But it also includes marketing companies, automobile companies, private investigators, towing companies and data collection companies that sell the information.
The law also provides that the information can be made available for research purposes, and for producing statistical reports so long as the personal information in the records isn't published, redisclosed or used to contact individuals.
States were required to follow the law or face fines and criminal sanctions for employees. New Mexico state law mirrors the federal law with some minor differences in language.
Huling ruled the state agency was following those laws.
Johnson said the exemptions to the federal law make claims about the confidentiality of driver's license information "laughable."
Attorney Jason Bowles said the state GOP filed a motion last week asking Huling to reconsider.
Bowles argues in the motion that the GOP hadn't known personal driver's license information was for sale by data collection companies when it argued the case.
Open government advocates are also concerned about Huling's decision on a secondary issue in the case.
In response to the request for documents used in the audit, Taxation and Revenue turned over some heavily redacted material and claimed the rest was exempt from disclosure because of executive privilege.
Huling upheld the denial, ruling the state didn't have to turn over internal memos generated by department employees under the principle of executive privilege.
She said memos she reviewed didn't reflect any problems involving foreign nationals registering to vote.
Johnson said he found the ruling "mysterious" on several counts.
"First, when you're asking for public records, you're not required to say why you want them," Johnson said. "That's part of the law.
"Secondly, executive privilege is usually defined as involving the chief executive's closest advisers. This opens it up to every employee in the state."
Patrick Rogers, a former president of FOG who also has represented the Republican Party in court, described it as "the most expansive claim of executive privilege that has ever been made."
In upholding the executive privilege claim, Huling relied on a 1981 case spawned by lawsuits filed in the aftermath of the bloody riot at the New Mexico State Penitentiary.
The state Supreme Court found some material compiled by the Attorney General's Office in producing a public report on the riot wasn't subject to discovery by attorneys suing the state because of executive privilege.
Rogers and Johnson said Huling's decision could send many more public records requests into the courts, something they said the Inspection of Public Records Act was designed to prevent.
"Based on this, just about any employee can deny access to a broad range of records and the public would have to take their request to court," Johnson said.
Lawyers for the state praised Huling's rulings.
"There is really no reason to criticize her rulings in this case," Santa Fe attorney Mark Baker, who represented the Taxation and Revenue Department, said during a telephone interview.
Baker said Huling's ruling reflected the law and said government officials have the right to rely on it.
He said the Supreme Court recognized there are competing interests and that the courts have to apply a balancing test.
"The Legislature doesn't have the right to dictate to the executive (branch)," Baker said.
Executive privilege, he said, allows "the fostering of candid expressions of opinion without fear of exposure to the public."
Rogers said the Supreme Court case predates the 1993 Inspection of Public Records Act by 12 years.
"It is not even the same situation," he said.