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Agency’s excuse for withholding records is bogus
Heath Haussamen
Tax and Revenue refused in May to release documents related to the secretary of state’s claim about foreign nationals illegally voting, saying they were part of a police probe; we now know that police aren’t investigating, so that isn’t a valid reason to withhold records
I told you in June that the state’s Taxation and Revenue Department had largely rejected my request for records related the secretary of state’s claim that she uncovered “evidence” of foreign nationals illegally voting in elections.
Tax and Revenue (TRD) cited the law enforcement exception to the state’s Inspection of Public Records Act (IPRA) to justify redacting e-mails between TRD and the secretary of state related to the situation, and to withhold all attachments.
Those attachments included spreadsheets and other documents that Secretary of State Dianna Duran’s office compared with voter registration forms. The reason TRD refused to release them?
“The Secretary of State’s Office turned this investigation over to the State Police, which is continuing the investigation,” TRD records custodian Patricia A. Silva wrote in her May 26 letter explaining that the records fell under the law enforcement exception to IPRA.
But on Sept. 3, the Albuquerque Journal dropped a bomb on that argument:
“The State Police are not conducting a proposed criminal investigation into 64,000 irregularities in the state’s voter file, although Secretary of State Dianna Duran sent the files to the agency months ago for an inquiry,” the Journal wrote in an article.
Here’s more:
“Gorden Eden, secretary of the state Department of Public Safety, which oversees the State Police, said Friday that his agency has been acting in an ‘advisory’ role with Duran’s office but does not have the resources to look at all 64,000 cases. He also said it is more appropriate for Duran’s office to conduct the inquiry.
“‘This is truly an issue, a case, that needed to be looked at by the SOS’s office,’ Eden said. But Eden did not rule out a future criminal investigation, if evidence is presented that one is needed.”
Outrageous. There’s no criminal investigation, so the law enforcement exception isn’t a valid justification for withholding records. But TRD used it as an excuse anyway.
A violation of IPRA
The law enforcement exception to IPRA can be used to withhold records only when there’s a criminal investigation or prosecution.
“Law enforcement records include evidence in any form received or compiled in connection with any criminal investigation or prosecution by any law enforcement or prosecuting agency,” IPRA states. Documents that can be withheld include only “records that reveal confidential sources, methods, information or individuals accused but not charged with a crime.”
As I reported in June, TRD was already on shaky ground in citing the law enforcement exception.
“They cite the law enforcement exception, which has two prongs. I think it’s a stretch to say that it meets the first test, which is that it’s evidence in a law enforcement investigation,” N.M. Foundation for Open Government Executive Director Sarah Welsh told me at the time. “And I think the second test, that it would reveal confidential sources, methods, or information, is a real stretch.”
It was a stretch then. Now there’s no question.
Tax and Revenue withheld documents I requested without citing a valid reason for doing so. I believe that’s a violation of IPRA.
A black mark for the Martinez administration
I somehow overlooked the Journal article when it ran Sept. 3. When I became aware of it Monday, I immediately refilled my request with TRD seeking the e-mails and attachments, pointing to the Journal article as evidence that there’s no justification for withholding the records under the law enforcement exception to IPRA.
I requested records from TRD in April because Duran had already refused to release them, citing executive privilege and violating IPRA in her office’s dealings with me. Tax and Revenue said executive privilege was not a valid reason to withhold the records after I pointed out that Duran’s use of it would not have been allowed under an executive order Gov. Susana Martinez issued for her administration.
So I’ve had executive privilege and the law enforcement exception to IPRA used to justify withholding these records, and both were bogus. Let’s hope those who want to keep these documents secret are out of excuses.
Tax and Revenue’s failure to release these records is a black mark for the Martinez administration. But it’s one that can be remedied now.
Just release the documents.
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GFA – I don’t think Governor Martinez is doing anything frivolously and me thinks she/they have a bigger case than anyone can imagine. Of course this is taking place in New Mexico so it really isn’t unimaginable.
The so called “law enforcement exception” isn’t a blanket exception; in theory they have to argue that the release of the un-redacted document would have a real and negative impact on an ongoing investigation. Every redaction has to meet the same standard; even one word cannot be black-lined unless not doing so would materially harm an actual ongoing investigation.
They get away with this because most people are disinclined to exercise their only remedy which is to file a lawsuit against their government and all of their lawyers; even over the truth.
Gov. Martinez appears to be failing on her promises not to be like Gov. Richardson. In her state of the state address, Martinez said, “We must also operate state government in an open and transparent manner. For that reason, I signed an executive order prohibiting state agencies from frivolously using executive privilege to block open records requests. The public has a right to know exactly what their government is doing.”
Talk is cheap and so are the excuses Tax and Rev is giving.
Republicans are systematically changing electoral laws and engaging in voter suppression tactics in ALL the states. They are especially targeting states to create a partisan structural advantage for the Republican party.
Our New Mexican Republican governor is making this national Republican tactic a priority and spending money on it. The national Republican party mandates her to do it whether a justification for spending resources exist or not.
http://www.msnbc.msn.com/id/26315908//vp/44587760#44587760
I thought the Federal Appeals Court recently struck down the Law Enforcement Exception to Public Records Request. This is not New Mexico, but it should cover this situation. Right?
http://www.cadc.uscourts.gov/internet/opinions.nsf/DC5181ECB8BE1B71852578BD005042FD/$file/09-5428-1315528.pdf
Here is more information on this matter:
http://www.rcfp.org/fogg/index.php?i=ex7
I am not a lawyer, but I think that actions of the Tax and Revenue Department are purely political – so much for the transparent Martinez administration.
Another investigation which has not been reported upon lately is that of politiican’s campaign finance reports that went unsubmitted. Secretary Duran is involved and according to the original story published by local media some information was also to be turned over to law enforcement. I do not think it is too far a stretch to believe that finances in the way of contributions may also have been spent illegally registering individuals to vote or sign petitions. Therefore, this may be tied to yet another criminal “investigation”. I hope Secretary Duran continues to do her job and I also hope she discloses as many of her findings as possible.
I understand your outrage. Is it possible though that there may be another investigation tied in to all of this as the media has already reported the whistleblowers that went to the FBI with allegations against Mary Herrera?
I am happy your reporting is keeping us informed. I wish there was more transparency in regard to the various “investigations”. It seems like otherwise voters could only expect more inefficiency and real/potential fraud.
Heath: Is it true that the general counsel for Tax and Revenue was an assistant district attorney for Martinez?
In my opinion the McCleskey/Martinez agenda over voter fraud mirrors the Rove/Bush agenda over voter fraud because likewise the Bush administration claiming executive privilege, repeatedly refused to make correspondence on the subject available to the committees investigating.
The agenda appears to be termed as “caging” wherein without proper identification–students, the elderly and minorities who, for a variety of reasons, did not possess adequate proof of identity, address, or registration were denied voting. Of which a greater majority of these voters would vote for Democrats goes without saying.
Using the ballot box as a political weapon is nothing new. Democrats chronically complain about access, while Republicans carp about fraud.
Remember in the 2004 Bush-Kerry race Bernalillo County sheriff Darren White, the chair of the local Bush-Cheney campaign committee, appeared at the county clerk’s office, demanding to know whether there were any “problem registrations” on file. The county clerk, Mary Herrera, referred White and his posse to approximately three thousand forms that were either incompletely or incorrectly filled out. The US Attorney’s office in New Mexico found all the causes presented were without merit.
While I agree that only the legally entitled should vote, the issue is being masked: as the real agenda is the drive to maintain Republican dominance.
It appears that McCleskey/Martinez is repeating history. The same history that lead to the wrongful firing of several US Attorney’s, one of which was from New Mexico.
Heath, I pray you have a better result than the feds did with Rove and Harriet Miers, counsel for President Bush. They stonewalled the process and refused to surrender documents.
Citizens have the right to know if there is an unconstitutional attempt to politicize the voting process. Go get-um!!