New Mexico Group: Private Contractors Don’t Make Info Non-Public

Passing along from the New Mexico Foundation for Open Government….

The government cannot shield public information by putting it in the hands of private contractors.

That’s the central argument made by the New Mexico Foundation for Open Government in a legal brief filed Sept. 26 with the state Court of Appeals.

“The district court’s government contractor exception limits the public information available to citizens,” NMFOG attorney Randolph Barnhouse wrote. “The information withheld under the shield of this exception can be the most essential for citizens to obtain on important issues regarding outsourced governmental activities. This type of secrecy has a number of harmful effects on the power of citizens, disarming them of the information they need in order effectively to promote their interests.”

The case began when Truth or Consequences resident Deborah Toomey asked to review video recordings of past city-commission meetings. Video of the meetings had been broadcast on the city’s public-access cable channel, and it was recorded by a non-profit organization hired by the city to manage the channel and produce content.

Yet a district judge ruled in 2010 that Toomey had no right to review the recordings under the Inspection of Public Records Act, since the non-profit organization itself is not a public body.

NMFOG’s brief argues that this narrow interpretation of New Mexico’s sunshine law undermines the public’s ability to scrutinize government actions, and invites abuse by government officials seeking to shield public records from disclosure. Barnhouse points to four other states – Florida, New Jersey, Texas and Wisconsin – whose courts have concluded that contractor-held public records must be disclosed.

“We’re not saying that every contractor that does business with the government needs to open its books to the public,” NMFOG Executive Director Sarah Welsh said. “Far from it. We are saying that if it looks like a public record and it quacks like a public record, it’s a public record. The government can’t just bring in a middleman to make it private. The public’s right to know, and to scrutinize government, is too important to allow that kind of loophole.”


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