October 31, 2018

Next governor can lead by example in transparency issues

“It’s public record. Give it to me.”

That was Gov. Susana Martinez talking to a police dispatcher in December 2015 after hotel employees called in a noise complaint. Many of her critics focused on her slurred speech that night. But Martinez’s demand for what she deemed a public record grabbed the attention of journalists and open records advocates because of her administration’s history of delaying or outright denying public records.

When she first ran for governor in 2010, Martinez vowed to be more transparent than her predecessor, Bill Richardson. Nearly two years after her chat with the dispatcher, a state district judge ruled that Martinez’s office violated the state’s Inspection of Public Records Act (IPRA) by delaying the release of records to the Santa Fe Reporter. And in a still-ongoing case, the state’s General Services Department, which is overseen by a Martinez appointee, refused to fully disclose how much the state paid for a contract attorney to represent Martinez in a handful of cases.

The next governor of New Mexico will be left holding the bag on pending complaints and litigation—and will also need to set the new standard for government transparency. That standard, open government advocates say, will trickle down to cabinet secretaries who oversee critical state departments.

Both gubernatorial candidates have said transparency plays an important role in state government. But so did Martinez when she first ran for governor in 2010.

“The more transparent we can get, the better off we are,” Republican gubernatorial candidate Steve Pearce said during a political forum earlier this year.

At the same event, his opponent, Democrat Michelle Lujan Grisham, said the governor can lead by example: “This is an issue of leadership, and culture and experience.”

Campaign statements aside, open government advocates seem to have their “Mary Poppins” lists at the ready and advice for the next governor.

Leading by example

IPRA is the state law that allows anyone a glimpse behind the curtain of local government. The law outlines what is and isn’t considered a public record, limits waiting periods and sets what agencies can charge for records.

The governor of New Mexico can’t unilaterally change IPRA, but whoever takes over in January could send a strong message, according to Santa Fe Reporter editor and publisher Julie Ann Grimm.

“One of the critical things that the next governor can do is to empower the cabinet secretaries and the people below them who do the actual work of government to explain their work to the public through journalists,” Grimm said.

The Santa Fe Reporter sued Martinez in 2013, claiming she and her staff discriminated against the alt-weekly by ignoring interview requests and also violated IPRA five times. A state district court judge ruled that Martinez’s office violated the law three times.

Grimm told NM Political Report the next governor should also practice what he or she preaches.

“The next governor needs to follow the state Inspection of Public Records Act in letter and in spirit and when there are questions, they need to err on the side of transparency,” Grimm said.

Peter St. Cyr, a former journalist and open government advocate with Open Access New Mexico, said beyond setting a good example, the next governor can actively change the way records are made available in the long-term.

“What I’d like the next governor to do, what my bottom line is, a complete digital transformation in the way that records are retained, processed and available,” St. Cyr said.

He said the next governor can take the state’s online transparency portal “to the next level” by uploading documents and data, which would lighten the workload of public records custodians.

IPRA requires public bodies to designate an employee as a public records custodian, but it does not require departments or agencies to create a position solely for the purpose of managing and responding to public records requests. Often the job of records custodian falls on an employee with other administrative duties.

St. Cyr said a “digital transformation” over four years could help create a legacy for the new governor.

“That would be a worthy legacy to have,” St. Cyr said.

That legacy could also help the state’s transparency next report card too.

A 2015 investigation by the Center for Public Integrity found that New Mexico indeed has robust transparency laws, but is lacking in compliance and enforcement.

Power of the pen

Former New Mexico Foundation for Open Government (NMFOG) president Greg Williams said it’s not uncommon for the Legislature to try to restrict IPRA. NMFOG would like to see the next governor stifle such measures with the power of the veto pen.

“We hope the new governor recognizes that we have a very strong public records law but it’s always under attack from governmental entities and some legislators who are trying to worsen it,” Williams said.

Williams added that the next governor should also be on the lookout for legislation that aims to increase transparency and accountability on the surface but contains provisions that actually weaken the law. Further, Williams said, attempts at improving the law can have negative effects.

“We always have a concern that once there’s a bill on the table to amend IPRA that there may be unforeseen amendments that have the effect of making the whole thing worse,” Williams said.

Williams sees the the constitutional amendment on the ballot this year that would establish a state ethics board as an example. Originally, he said, the NMFOG was in favor of an ethics board, but had second thoughts after realizing some legislators want to keep ethics complaints secret.

It’s still too early to determine which parts of IPRA the Legislature might consider, but Williams said he would not be surprised to see attempts to increase the fees for records or exempt footage from law enforcement body cameras from IPRA.

It’s also still too early to try and guess how transparent the next governor might be, but Williams said he hopes he or she might buck the trend.

“Every candidate during the campaign claims to be an open government advocate and when they’re in office it sometimes is a different story,” Williams said. “Our hope is whoever wins will put their money where their mouth is in terms of open government.”