A Riveting Tale of Illicit Email Use…

You just KNEW it was a problem…but the saga in Mew Mexico lays bare the reality of the chicanery inherent in state FOI laws that remain silent on the issue of using non-governmental email accounts:

In June of 2012, the political press corps in New Mexico acquired a batch of interesting emails written by some of the highest-ranking members of Republican Gov. Susana Martinez’s staff. The emails were being released by Michael Corwin, a Democratic operative who once worked on opposition research for former governor Bill Richardson.

The documents did not cast Martinez’s administration in the best light: They showed administration officials compiling lists of non-union teachers for the governor’s outside political director, moving meetings with lobbyists to locations considered more discreet, and planning fishing trips with industry executives. Many of these emails involved state business—but they were sent from officials’ private email accounts.

Soon, reporters obtained hundreds more emails, all showing public business being conducted from Yahoo, Gmail, and political PAC accounts. Many of the emails came from Corwin, who said he gained access to them through a source who had bought the Internet domain Gov. Martinez used in her 2010 campaign—and all its related contents, including records of emails sent after the campaign had ended from related PAC accounts.

It’s a heck of a story. Read the rest here.

As the story concludes…it’s an ongoing problem:

The New Mexico officials’ use of private email is just one example of public servants trying to dodge scrutiny by conducting government business in a digital space they believe is safe from the public eye. Sarah Palin, Mitt Romney, and Louisiana governor Bobby Jindal have all gotten in trouble for it. In Washington, DC, a lawsuit just pushedthe city council to stop the practice. Local officials have tried it in Texas and California as well. And while the majority of states have ruled that these private emails count as public records, as the Santa Fe Reporter’s experience shows, it’s not always that simple to get ahold of them.

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.”

 

New Mexico Legislature Tables Good FOI Bill…

The hits just keep coming, people…

Representative Joseph Cervantes’ bill to ensure fair and equal access to public databases was derailed Monday morning by opposition from the state Taxation and Revenue Department.

The House Appropriations and Finance Committee tabled HB 406 by a 9-5 vote, effectively killing the bill. Representatives Conrad James, Patricia Lundstrom, James Smith, Don Tripp and Jeannette Wallace voted to keep the bill alive.[1]

The Department opposed the bill because it would have interfered with an estimated $6.3 million in annual royalties from motor-vehicle data.

“It is disappointing to have a state agency selling access to public records as a way to generate profits for that agency, and profits for others brokering the sale,” Cervantes (D-Las Cruces) said.

New Mexico Foundation for Open Government Executive Director Sarah Welsh, whose organization drafted the bill, echoed those sentiments.

“I am disappointed that an idea with broad bipartisan support is being held hostage to one agency’s profit-making scheme,” Welsh said. “My hope is that in the coming year, we can resolve that issue and move forward with bringing the open-data movement to New Mexico.”

HB 406 was co-sponsored by Representatives Thomas Taylor, Al Park, Bill O’Neill, Nate Gentry and Jim Trujillo. It sought to repeal broad and unconstitutional restrictions on all state databases. It would have provided that public databases would be available to any person requesting them, at actual cost and in any existing or readily convertible format. Databases subject to privacy protections, such as the state motor-vehicle database, would be provided to any qualified entity on fair and equal terms and at actual cost.

The cost provision triggered strong opposition from the Taxation and Revenue Department. Newly confirmed Department Secretary Demesia Padilla testified Monday that selling motor-vehicle records at a profit provides a vital source of funding for special projects within the Motor Vehicle Division.

Currently, MVD’s electronic database of driver records is sold exclusively to a Kansas company, which enjoys a monopoly on re-selling the data to other companies. The exclusive contract was awarded in 2009 under former governor Bill Richardson’s administration, despite heavy criticism that the procurement process was slanted in favor of the winning company.

While admitting that the request for proposals may have been ‘too restrictive,’ Padilla told the Committee that the contract generates roughly $6 million for MVD programs. If that revenue stream were eliminated, the money would have to be appropriated from the state’s general fund in 2012, Padilla said.

“It’s one thing to talk about ending the sale of access in Santa Fe, but it’s another thing to actually turn away the money,” Cervantes said.

Welsh said the underlying policy is flawed no matter how much money is generated or for what purpose.

“I don’t doubt that the government can make a lot of money by selling its records,” Welsh said. “But the public owns those records, and it shouldn’t have to pay for them twice. FOG objects when public agencies try to charge a dollar per page for paper copies, and we object when data is sold for a profit. And we particularly object to existing law that allows the government to approve or deny requests for data based on the commercial or political purpose of the requester. This bill would have fixed that.”

HB 406 was originally assigned to the House Consumer and Public Affairs Committee and House Judiciary Committee; it was approved unanimously in each committee. Welsh said despite this setback, FOG will continue to advocate both in and out of legislative sessions for fair and equal access to databases.