Is NMFA violating the public records act, or is the governor’s office releasing documents it isn’t legally required to provide?
One state agency — the New Mexico Finance Authority — is refusing to release any subpoenas it’s received in a federal grand jury investigation of allegations of pay to play in the Richardson administration.
But another — the highest state agency, the Office of the Governor — is releasing such documents in response to requests made under the state’s Inspection of Public Records Act.
In fact, I made requests using the same language to both state agencies, which are both subject to the public records act, and received the different responses. What conclusion can be drawn from that?
Either the public records act requires the release of such documents and NMFA is in violation of the act, or the act doesn’t require their release but the governor’s office is providing them anyway. I have asked the New Mexico Foundation for Open Government for help and advice, but the organization hasn’t yet taken a stance on the issue.
I have already reported that NMFA refused to release subpoenas it has been issued in the federal probe, in addition to the documents sought by such subpoenas. Last week, the governor’s office responded to requests similar to those sent to NMFA by releasing a Sept. 22 subpoena it had received in the probe. You can view the subpoena by clicking here.
I and Trip Jennings, a colleague at the New Mexico Independent, were among several reporters who requested the subpoena after the Bloomberg news agency published a story in January indicating that it had obtained the document from the governor’s office in response to a public records request. The subpoena is the first publicly-released document to show that the investigation centers on CDR Financial Services. The grand jury is asking whether CDR received a state investment contract that paid almost $1.5 million in exchange for $110,000 in contributions to two of Gov. Bill Richardson’s political action committees and his 2006 gubernatorial re-election campaign.
In addition to indicating a focus on CDR, the subpoena names names. Richardson’s right-hand man, Dave Contarino, political adviser Michael Stratton and J.P. Morgan banker Chris Romer, who is also a Colorado state senator, have all drawn the attention of the grand jury.
The records request I sent to the governor’s office sought the Sept. 22 subpoena “and any other subpoenas issued to the governor’s office related to the investigation.” After being provided with the Sept. 22 subpoena, I asked whether there were any others, to which Marcie Maestas, the governor’s records custodian, replied in an e-mail, “We have provided all the documents that are responsive to your request.”
Jennings’ request
A broader request Jennings sent to the governor’s office sought “all documents, including subpoenas received by the Governor’s Office, related to any federal investigation into the letting of state contracts.” In response to that request, the governor’s office provided only the Sept. 22 subpoena, and did not indicate that any other records responsive to the request existed.
But other records that would appear to relate to the federal investigation do exist. The Associated Press and Albuquerque Journal requested documents provided to the grand jury in response to the subpoena and were told, in a denial of their requests, that documents were given to the grand jury but were exempt from the public records act because of federal rules governing grand juries and “countervailing public policy considerations” including “this office’s effort to cooperate and not unduly interfere with a federal grand jury investigation.”
That language is similar to that the governor’s office used recently in denying a request from The Santa Fe New Mexican for documents related to the office’s dealings with CDR.
Asked why the governor’s office responded to the request from Jennings differently than it did those from the AP and Journal, Richardson spokesman Gilbert Gallegos wrote in an e-mail, “We interpreted (Jennings’) request to have just asked for the subpoena, not the underlying documents. If the intent was otherwise then (Jennings) should have been more clear. The Journal’s request was very clear. So was the A.P.’s request.”
Gallegos has not responded to a follow-up question asking why “all documents… related to any federal investigation” would not include documents the grand jury sought in its subpoena.