Last month, NM Political Report wrote about how a one-sentence provision in state law emboldened an agency to keep one citizen from obtaining public information.
In December, retired Interstate Stream Commission Director Norman Gaume asked his former agency for an unlocked copy of an Excel spreadsheet showing how much water is diverted from and used along the Gila River and its tributaries each year.
The agency’s questionable actions against Gaume drew the attention of one of New Mexico’s U.S. Senator, and a state representative who introduced a bill to make a slight wording change to the state’s open records law.
Over the past few years, Gaume has opposed the state’s plans to build a diversion along the Gila River in southwestern New Mexico.
With an unlocked copy of the spreadsheet, he could examine the formulas and original data within the spreadsheet. He wanted to see if on-the-ground data supported assertions by the state that farmers were already using all the water they could from the river yet still needed more.
In response to his request, however, ISC employees categorized the spreadsheet as a “database” and told Gaume he’d need to sign the agency’s database agreement.
That agreement prohibits the requester from making copies or providing the database to anyone without the agency’s written approval. It also says the database can’t be used for any “political or commercial purposes” without the agency’s approval. Breaching the agreement carries criminal penalties.
“Water is precious to New Mexico, and it is common sense that information about our water resources should be readily available in the course of consideration of major new water projects and taxpayer financing of new water projects,” Heinrich wrote in his letter.
NM Political Report requested comment from the ISC on Heinrich’s letter and the release of the spreadsheets. The agency’s communications director did not respond before press time. As of press time, the agency still had not posted the unlocked spreadsheets in a publicly-accessible place on its website.
This month, the state agency released seven Excel spreadsheets to the senator’s office, according to Heinrich’s communications director Whitney Potter. ISC employees also assured the senator’s office that the data would be made available to the public on the commission’s website, Potter added.
In a statement to NM Political Report, Heinrich emphasized the high stakes debate over building an expensive new diversion on the Gila River, which flows from the nation’s first wilderness area.
“It’s critical that all stakeholders and the public have access to the best available data and science to make informed decisions about the best path forward,” he said. “At a time when our state is facing difficult budget decisions, we need to be deliberate in our assessment of whether dewatering the Gila River is a wise use of taxpayer dollars.”
New Mexico’s taxpayers, the senator said, “deserve responsible, cost effective, science-based solutions if we are to manage both our limited water supplies and constrained budgets.”
New Mexico Foundation for Open Government Executive Director Peter St. Cyr praised the release of the data, but at the same time pointed out that it shouldn’t have required the intervention of a U.S. senator.
“The New Mexico Foundation for Open Government encourages government employees to treat everyone’s requests for public documents the same and to fully comply with the state’s sunshine laws,” St. Cyr said. “Public servants should make providing documents like this spreadsheet and other documents used to formulate policies a priority rather than first looking for ways to block access to critical information.”
About that data
Once he was able to dive into the data, Gaume found no evidence that farmers along the Gila River in New Mexico experienced water shortages in the past few years.
Passed in 2004, the Arizona Water Rights Settlement Act allowed New Mexico 10 years to decide if it would take advantage of additional water rights through conservation and efficiency or by building a diversion on the Gila River.
In late 2014, the ISC voted to build a diversion. The state has repeatedly pointed out that existing water rights in the area don’t meet the needs of local farmers and users.
“These spreadsheets contain ISC’s official truth, which is very different from ISC’s Gila River propaganda,” Gaume told NM Political Report. “These facts directly contradict State Engineer Office and ISC statements to justify the AWSA Gila diversion of New Mexico’s junior water rights.”
Gaume found that in every month studied, irrigation water supplies diverted from the Gila River met the area’s crop needs.
In addition, irrigation efficiency in the Cliff-Gila Valley for the period studied was 41 percent. On-farm losses, he noted, are almost equal to 100 percent of crop needs. And, he said, more than 4,000 acre feet of existing water rights on the Gila River went unused in 2015.
State rep wants to remove IPRA exemption
Now, state Rep. Matthew McQueen, D-Santa Fe, has introduced a bill to remove the language from the Inspection of Public Records Act that allowed the ISC to deny Gaume’s request.
As it stands now, IPRA authorizes agencies to release databases, as long as the person agrees “not to use the database for any political or commercial purpose unless the purpose and use is approved in writing by the state agency that created the database.”
If passed, HB 227 would strike the word “political” from the law.
McQueen said that after reading about the issue in the newspaper, he thought he’d take a closer look at the law.
“Restricting the public use of public information seems fairly unconstitutional, so I thought I’d fix it,” he said. “If the information is public, then the public has the right to use the information and exercise their First Amendment rights. And political speech is protected speech.”
State senators have also introduced a bill that would require legislative oversight of the state’s spending on the proposed diversion.
If passed, SB 340 would require the state agencies overseeing the diversion’s planning and construction—the ISC and the New Mexico Central Arizona Project Entity—to have their budgets approved by the Legislature. The bill would also require the ISC to report its actual and planned uses of the federal funding New Mexico is receiving for the diversion.
New Mexico is scheduled to receive about $100 million in federal subsidies to build the diversion. With no real plan yet in place, the agencies have already spent more than $10 million of that money. The final price for the diversion itself is expected to exceed more than $500 million.
SB 340 is co-sponsored by Sens. Howie Morales, D-Silver City, Sander Rue, R-Bernalillo, and Senate Majority Leader Peter Wirth, D-Santa Fe.
Update: When this story was initially published, the agency had not yet made the unlocked spreadsheets publicly-available on its website. NM Political Report updated the story on Feb. 15 after Gaume forwarded the agency’s link. The data can be found at: http://www.ose.state.nm.us/Basins/Colorado/isc_CO_GR_gila_uses.php