Secretary of state fails open government test
Last month Dianna Duran claimed to have evidence of foreign nationals illegally voting in elections, but she won’t share that evidence with the public. I’ve identified several potential public records act violations stemming from her dealings with me.
When Secretary of State Dianna Duran claimed last month that her office had evidence of 37 foreign nationals illegally voting in elections, I expected documents to be forthcoming.
Instead, I’ve spent a month going back and forth with the Secretary of State’s Office about my requests for records, and I have almost nothing to show for it except a handful of denials. Duran, in my view, has pushed the limits of what can be kept secret under the state’s Inspection of Public Records Act (IPRA) and is on very shaky ground.
In other words, I’ve identified several potential IPRA violations stemming from her office’s dealings with me.
An ongoing investigation
Duran initially said on March 15, at a legislative hearing and in a news release, that her office had matched 117 voter registrations to people in the MVD foreign national database using names and dates of birth. She also said 37 of those 117 had voted in New Mexico elections.
The secretary of state used those findings to try to convince a legislative committee to approve a voter identification bill. The committee killed the bill.
Interesting, right? We’ve heard Republicans claim to have evidence of voter fraud every so often over the years, but proof of widespread voter fraud has never been made public.
Duran’s claims sounded at first as though they had a chance of being more credible than past instances. Plus, the evidence existed at least in part in public records, so I thought I could get my hands on it.
Nope. The state’s elections director, Bobbi Shearer, told me the office wasn’t releasing any documents because there was an ongoing investigation. But public records are public records regardless of whether they’re part of an investigation, so that isn’t a valid reason to withhold documents.
I kept trying. There was a potentially valid obstacle to me obtaining some of the records. A state law makes driver’s license records confidential except for certain purposes, including research, to protect people from stalking.
I had no problem keeping confidential the names of those the secretary of state said appeared to have voted illegally, since her determination was based in part on records subject to this law. I simply wanted to do my own research to verify Duran’s claim.
So I e-mailed Shearer, asking her to release the Motor Vehicle Division records for research purposes only. I promised not to publish names or other information.
After receiving a tip that the secretary of state also found some voter registration forms on which the registrants indicated they are not U.S. citizens (non-citizens can’t register to vote or vote), I also requested those.
Told to go elsewhere
Shearer replied to my records requests by saying her office was checking with the office of Attorney General Gary King on what it could disclose.
The eventual response, which came 15 days later (the maximum time allowed unless the request is deemed “overly burdensome” – and this one was certainly not), was that the secretary of state wouldn’t hand over any records.
The secretary of state cited the law keeping MVD records confidential in telling me I couldn’t have those forms. Her office told me to go directly to MVD if I wanted to try to obtain records by claiming the research exemption. But the SOS didn’t forward my request to MVD, as required by the public records act.
As for the voter forms Duran’s office compared with MVD records, I was told the office “does not maintain the original voter registration forms” – the county clerks have the original forms for 1.6 million registered voters in the state. Again, my request wasn’t forwarded.
And anyway, I didn’t ask for 1.6 million forms. I asked to view some examples of those the secretary of state compared with MVD records to determine that foreign nationals may have illegally voted. My request was specific to a unique set of documents possessed by the secretary of state.
The databases of 1.6 million registered voters and 83,000 foreign nationals with driver’s licenses weren’t what I was looking for. I was looking for documents that indicated how the secretary of state determined that foreign nationals had illegally registered to vote and voted so I could determine if there was any validity to her politically charged claim.
Duran blames AG
I sent an e-mail clarifying that I thought my records request would also cover any other documents related to the voter and MVD forms, such as “memos, e-mails, or reports,” and asked them to release those. I also asked for a list of all documents they were withholding.
I got a call from Duran herself, who told me she couldn’t give me anything because she was advised by the AG to withhold it all.
“We want to be as transparent and open as we can,” Duran told me, but “with certain advice from our attorney, we’re limited at times.”
She noted that her office had communicated with the AG via letters. When I asked for those letters she told me she couldn’t release them either, saying it’s “all attorney-client privileged information.”
Hogwash. Duran is the client, and she can release whatever she wants. In addition, she doesn’t have to follow the AG’s advice if she thinks it’s wrong, because it’s just that – advice.
Gary King is not the emperor of New Mexico. In fact, he’s not even necessarily an expert on IPRA. A district judge recently ruled that King’s office violated the public records act.
Following my phone conversation with Duran, I sent a follow-up e-mail. One point I wanted to make clear, in writing, was that I didn’t ask for the original voter registration forms possessed by county clerks. I requested the copies Duran’s office reviewed to determine foreign nationals may have voted illegally. Copies of documents, like originals, are subject to IPRA.
I also noted that her office’s denial didn’t address my request for any related documents such as memos, letters, or reports, and asked for those to be provided or for the office to deny my request as it related to those records.
The SOS responded by denying all my requests, saying it couldn’t release anything related to the investigation – driver’s license records, voter registration forms, or related documents – because all fall under the exemption in the law that keeps driver’s license records private.
“Since it would be impossible to reveal the names of the individuals designated as foreign nationals who illegally voted, without disclosing the information as it correlates with MVD records, it would be likewise be impossible for us to give you copies of voter registration forms, or refer you to any specific county clerk, without disclosing the same information (i.e. protected personal information),” Duran’s records custodian, Christiana Sanchez, wrote to me.
She also denied my request for a log of documents they were withholding, saying IPRA “does not require us to provide you with one, and therefore we are unable to fulfill this request.”
“Unable?” I think it would have been more accurate for her to say the office “won’t” fulfill my request.
Claiming executive privilege
While I was corresponding with Sanchez, I learned from this blog post on Clearly New Mexico that Duran’s office had given the ACLU some documents related to the investigation – copies of e-mails and other correspondence that were heavily redacted. Why wasn’t I given those documents when I requested e-mails and memos related to the situation? Was I being treated differently than the ACLU?
“We looked at your request again, and didn’t find your IPRA request to include, with reasonable particularity, this specific request,” Sanchez wrote. She offered to forward me the e-mails her office gave to the ACLU. You can view them here.
The e-mails are so heavily redacted that they’re mostly useless, but there’s one interesting letter in that batch of documents – a letter from Duran to the AG’s office asking for advice on what the office could release in response to records requests from me and others.
In fact, it’s the very letter I asked Duran to release when I had her on the phone – the letter she told me she could not release.
Why the redactions in the documents provided to the ACLU? Executive privilege, Sanchez told me.
“Revelation of the information within these emails will compromise the Secretary of State’s decision-making process, and thus outweighs the public’s interest in disclosure,” Sanchez wrote.
That sounds familiar. During the years Bill Richardson was governor, executive privilege was known as the way to keep documents secret when there was no other way to legally do it.
I made one more request. The letter from Duran to the AG mentions the existence of voter registration forms on which “the person registering to vote checked ‘no’ to the question ‘Are you a citizen?’” Those weren’t compared with MVD records, so the SOS wouldn’t cite the MVD law, I figured. I asked for those forms.
Again, nothing. Those documents, Sanchez said, were turned over to the Department of Public Safety for investigation. The secretary of state apparently no longer has possession of any of those forms. The office conducted a massive investigation into voter fraud and then gave the evidence to DPS without keeping copies. Sanchez told me how to contact DPS to make a request for the records.
I walked you through this lengthy process to show you how dizzying it’s been. To summarize, here’s what the Secretary of State’s Office said in response to my requests:
- It can’t provide documents because there’s an ongoing investigation – which is clearly not a valid reason to withhold public records.
- It can’t provide voter registration forms or other related records because of an exemption designed to keep driver’s license records private.
- It can’t give me the driver’s license records under the research exemption that allows their release. I’d have to try with MVD if I want to claim that exemption.
- It turned voter registration forms I requested over to DPS and no longer has copies to provide me.
- It didn’t initially provide me with correspondence about the investigation even though I requested related documents “including, but not limited to, memos, e-mails, or reports.”
- It’s claiming executive privilege in redacting e-mails about the investigation to the point that almost all of the documents it did release are worthless.
- Last – and this was a big deal when Richardson was governor – IPRA requires government agencies that receive requests for records they don’t possess to forward those requests to the appropriate agencies. Duran’s office didn’t forward my request for voter forms to the county clerks or to the Department of Public Safety. And it didn’t forward my request for drivers’ license records to MVD.
Voter registration forms are public records
Sarah Welsh, executive director of the N.M. Foundation for Open Government, sees problems with the way Duran’s office has responded to my requests over the last month.
For starters, she said, it “doesn’t make any sense” to say that a law that makes MVD records confidential “somehow makes voter registrations confidential.”
“They’re public records,” Welsh said. “Under any other circumstances they would be public records.”
Welsh also said it’s concerning any time a government agency claims executive privilege because it’s “a nebulous” claim. She said the redactions in e-mails provided to the ACLU and me “don’t seem to fit under FOG’s view of executive privilege.” She also said it “stands in contrast to” the executive order Gov. Susana Martinez issued detailing how her administration would and would not use executive privilege.
As the Court of Appeals has already said in a case involving the City of Farmington, open government laws are meant to protect the public from having to believe public officials acted appropriately without seeing evidence. Yet in this case, Welsh noted, Duran made a claim about foreign nationals voting illegally to try to influence the legislative process, but now won’t back up her claim.
“Here they’re saying we found evidence of voter fraud, but you’re going to have to trust us on this because we can’t show it to you,” Welsh said. “That’s not open government.”
Like I’m dealing with Richardson all over again
Welsh is right. Republicans, including Duran, didn’t accept the “trust us, we’re the government” attitude from the Richardson administration on this very issue of foreign nationals who may have been voting illegally. But now Duran is asking us to do the same – trust the government without seeing proof.
As I hope I’ve adequately laid out here, the secretary of state’s arguments for withholding documents appear to be gutless at best (as in, “We’ll just do what the AG advises and blame him for not being transparent”) – and something much more nefarious at worst. And her actions are legally questionable.
My interactions with Duran and her office over the last month have been outrageous. I feel as though I’m dealing with the Richardson administration all over again.
And what might have been a news article about foreign nationals illegally voting in New Mexico elections has instead turned into a commentary about Duran’s office not being open and transparent.