February 21, 2017

State Sen. wants parents to have access to investigations into school police

Joey Peters

Laura Gutierrez, center, speaks at a January 2016 press conference in Albuquerque. Her son Michael Bruening is pictured second from right.

Laura Gutierrez has been trying to get public records from Albuquerque Public Schools for more than a year. In 2014 a school law enforcement officer allegedly used force against her autistic son.

APS opened an investigation and soon cleared the officer of any wrongdoing. Gutierrez wants to see all the documents from this investigation.

In the fall and winter of 2015, Gutierrez filed four public records requests with APS for the district’s internal investigation of the officer, an employee of the school district.

The school district has refused to release information from the internal investigation, including witness statements and a forensic interview with her son Michael, who was 13 at the time.

Now, a state senator is attempting to add a section to the state’s public records disclosure law to require that all parents or guardians have access to investigations of school officers accused of misconduct against their child.

But some government transparency advocates warn that the bill could actually undermine the state’s public records law.

Gutierrez sat with the bill’s sponsor, state Sen. Linda Lopez, D-Albuquerque, last week as the Senate Education Committee passed the bill.

“Not having provisions for parental access to police records takes away from parental participation at all levels of government,” Gutierrez told NM Political Report.

Lopez, who has appeared with Gutierrez at multiple press conferences since the alleged incident against her son, invoked parent rights in explaining her bill.

“When there is a child involved in an alleged incident, there is a report,” Lopez told the committee last week. “Once the investigation has been closed, it is my belief and many others’ that the parent or guardian should have access to that piece of information.”

Some government transparency advocates, however, fear her legislation may actually harm the state’s existing open records law, the Inspection of Public Records Act. Peter St. Cyr, executive director of the New Mexico Foundation for Open Government (FOG), said the type of documents Lopez’s legislation would free up are already covered under IPRA.

St. Cyr called Lopez’s legislation “unnecessary.”

“FOG believes that the documents are already public records and should be provided to anyone who requests them, not just to parents,” St. Cyr said. “It is also potentially harmful to open government, because it suggests that investigative reports of law enforcement officers’ misconduct are confidential except to this narrow extent.”

The State Commission of Public Records takes a different approach. In a note included in the bill’s fiscal impact report, the commission says that Lopez’s bill could conflict with an existing IPRA exemption that prohibits disclosure of law enforcement records “that reveal information related to individuals accused, but not charged, of a crime.”

State Sen. Mimi Stewart, D-Albuquerque, one of two committee members to vote against the bill, echoed this. Stewart, who previously worked as a special education teacher, said the bill would “undermine provisions in place we have to insure that police officers are protected.”

Specifically, Stewart said that school officers have a duty to comply with investigations into their conduct. Then the school districts make the final decision on whether to punish them. Disclosing investigation details would interfere with that process, Stewart argued, and infringe on police officers’ rights.

“The bill targets police officers in a school setting, and we won’t be able to get anyone to work for us,” Stewart said.

Currently, Gutierrez and others unable to get public records from public bodies or agencies have two options. They can file an IPRA complaint with the state Attorney General’s Office, which is tasked with enforcing the state open records law, or file a lawsuit for the records.

Gutierrez opted for the former last year and made a complaint with Attorney General Hector Balderas. Once the Attorney General’s Office began investigating her complaint, APS faulted Gutierrez for not sending her IPRA requests directly to the school district’s public records custodian. This excuse, as Attorney General Communications Counsel Jennie Lusk noted in a September 2016 letter to the school district, isn’t covered by state law.

“The APS records custodian is responsible for making records available when requested, regardless of any interdepartmental or interagency mail problems,” Lusk wrote to the school district’s records custodian at the time.

The following month, APS again did not provide the records to Gutierrez, this time citing two exemptions in the IPRA law for their reasoning.

One of those cited exemptions, known as the “law enforcement exemption,” doesn’t allow public bodies to disclose documents that give away confidential methods and sources used by law enforcement. It also blocks disclosure of the names of people accused but not charged with a crime.

The other IPRA exemption cited by APS allows public bodies to keep “matters of opinion in personnel files” confidential.

Yet both of these excuses don’t cover all of the documents APS is withholding from Gutierrez, according to FOG President Greg Williams. While a confidential law enforcement source’s name may be kept secret, the information these sources provide as part of an investigation is not, Williams told NM Political Report last fall. Williams added that entire law enforcement investigations are not considered matters of opinion.

“If APS is saying that everything that has to do with that investigation is subject to exemption, that is wrong,” Williams said at the time.

As unnecessary as organizations like FOG deem it, Lopez’s bill could be expanded. During committee debate last week, state Sen. Craig Brandt, R-Rio Rancho, asked Lopez whether she would be willing to expand her bill to include investigations of teachers and other school employees.

“I hate to single our law enforcement and think a parent should have a right to all records,” Brandt said.

Lopez responded receptively to Brandt’s idea.

Chris Narkun, an administrator with the state Public Education Department, suggested to the committee that the bill amend a state statute that guides investigations of police officers instead of amending IPRA.

Lopez’s bill now sits before the Senate Judiciary Committee.