Like the New Mexico Finance Authority, investment agencies refuse to release subpoenas from the U.S. attorney’s office
The State Investment Council (SIC) and Educational Retirement Board (ERB) denied today my requests under the state’s public records act for copies of any subpoenas related to investments that were sent to the agencies by the U.S. attorney’s office.
In denying my request in a letter sent this afternoon, ERB General Counsel Christopher G. Schatzman cited the exemption to the state’s Inspection of Public Records Act that allows for denial “as otherwise provided by law,” and wrote in his letter that the federal public records law in some instances exempts records compiled for law enforcement purposes.
While New Mexico courts have not addressed whether that federal exemption applies to state law, some other states’ courts have said it does apply there, according to Schatzman’s letter.
The SIC’s letter, from Public Information Officer Charles Wollmann, says essentially the same thing in denying my request.
The responses from the ERB and SIC are different from those I received recently from two other state agencies that have been subpoenaed in federal investigations. The governor’s office has released the subpoena it has received in the federal probe of allegations of pay to play in the Richardson administration.
Meanwhile, the New Mexico Finance Authority (NMFA) has denied my request for the subpoena it received in the pay to play probe. My business, Haussamen Publications, which publishes this site, has sued the NMFA to try to force the release of that subpoena. The lawsuit is pending.
In denying that request, the NMFA also cites the “as otherwise provided by law” exemption to the state’s public records act, but justifies that with a passage from a letter that accompanied a subpoena the grand jury sent to NMFA. That passage states that subpoenas “issued in connection with proceedings before a grand jury are specifically exempt from the customer notification requirements of the Right to Financial Privacy Act… and disclosure under certain circumstances is prohibited…”
Instead of ordering the NMFA to keep the subpoena secret, however, the letter from the U.S. attorney that accompanies the subpoena states that “Premature disclosure of this subpoena for records might impede the investigation in this case. Therefore, you are requested to not disclose the existence of this subpoena.”
We already knew that the SIC and ERB had been subpoenaed by the U.S. attorney’s office. The assumption is that the subpoenas relate to the widening investment probe that has led to criminal charges in New York and has spread to some 30 other states, the most prominent being New Mexico.
One new fact revealed today: The ERB, according to its letter denying my records request, has received two subpoenas. The letter from the SIC doesn’t state how many subpoenas that agency has received.