Holes in NM open records law block your right to know

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If you want to find out what the City of Rio Rancho pays its public employees, you can visit its website and see a list, updated twice a year, going back to 2011.

You can even download the data and analyze or visualize it with computer software because the city posts the data in both PDF and Excel formats.

With only a few legitimate exceptions, New Mexico’s Inspection of Public Records Act, or IPRA, makes virtually all public records available for public inspection and copying. In the spirit of transparency, Rio Rancho goes beyond IPRA’s minimum requirements.

On the other hand, Sandoval County’s approach to the IPRA law makes it difficult, if not impossible, to get even the most basic payroll data.

In response to an open records request from Searchlight New Mexico, Sandoval County produced no records of the salaries plus benefits paid to its employees. And Sandoval County did not produce payroll data from any of the previous four fiscal years, either. The limited response it provided to Searchlight’s request was not provided in the original electronic data format.

But Sandoval County was just one of the local governments that refused to provide the responses required by law to Searchlight New Mexico’s requests for public employee payroll data. The difficulties stem in part from resistance among some public officials to releasing data, but also point to flaws in IPRA — which is both vague in its definition of how to handle electronic records and limited in terms of penalties for not providing records.

“There is no incentive in terms of whether an agency should or should not comply with an open records request,” said state Sen. Daniel Ivey-Soto, D-Albuquerque, who has worked on several pieces of transparency-related legislation. “We don’t incentivize compliance, and we do incentivize obstruction.”

IPRA contains no criminal penalties for individuals who violate the act and only very limited, minor civil sanctions on the agency for refusing to respond.

Uncollected and unusable

Searchlight New Mexico, a nonprofit, nonpartisan investigative news organization, requested five years of payroll data in summer 2017 from 25 counties and 33 cities, towns and villages as part of its ongoing Your Data project.

Besides Sandoval County’s response to Searchlight New Mexico’s data request:

  • Curry County stated it did not have the data, but offered a report by its commercial software vendor for $1 per page. Searchlight’s dispute of the charge and a request for clarification of the data structure have so far gone unanswered.
  • The records custodians for Lincoln County and the Village of Corrales have also failed to respond to multiple emails.

Other local governments maintained they did not collect certain data, such as total compensation for employees or job titles. Yet all governments must collect and maintain records showing pay to public employees, and those records are by law public.

Still others invoked a provision of IPRA that states agencies do not have to create a new record in response to a request. San Miguel County, for instance, maintains that providing total benefits it pays public employees would involve creating a record because those data exist in a different file from the employees’ salaries, and so denied Searchlight’s request.

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“We don’t think a query for individual records is any different from going through a box of records looking for specific documents,” said Peter St. Cyr, executive director of the New Mexico Foundation for Open Government, a nonprofit that advocates for transparency and advises the public and private sectors on state open records issues. “We need to make sure the [statutory] language is clear that computer queries are not creating new documents but are a search for records that are responsive to an IPRA request.”

When IRPA was updated in 2011, legislators amended the law to require governments to provide electronic copies of records if requested in their electronic format.

The amended law read in part, “A custodian shall provide a copy of a public record in electronic format if the public record is available in electronic format and an electronic copy is specifically requested. However, a custodian is only required to provide the electronic record in the file format in which it exists at the time of the request.”

The effect of the amendment, Ivey-Soto said, was to require records custodians to fulfill increasingly complex requests without equipping them with the basic tools to make that job possible. There is no requirement that agencies keep a list of electronic records or even track requests that have been fulfilled so later, identical ones can be fulfilled efficiently.

Yet the amendment did not define “file format” beyond “the internal structure of an electronic file that defines the way it is stored and used.” Certain file formats, like PDF, are intended to display data, so the numbers in a PDF table are difficult or impossible to extract with a computer and analyze.

Problems solved in other states

While New Mexico was deciding how to deal with electronic public records in 2011, other states had long since solved the problem, often siding with greater transparency and usability.

Florida, for instance, is widely recognized as having the strongest open records laws among the states, dating back to 1992 when it enshrined its “Sunshine Laws” in the state constitution.

Florida’s open meetings law sets fines and criminal penalties for public officials who violate it, and its open records law requires a two-thirds vote of both houses before new public records can be exempted from disclosure.

Florida’s law also says an agency may not contract for a database if that contract would limit the public’s ability to inspect or copy records. The law forbids an agency from using a proprietary program or data format unless it is also able to comply with open records laws, and it declares that any electronic record is presumed to be open.

Since the 1990s, Colorado has set explicit rules on data formats for open records requests. An agency may not alter a record’s digital format in a way that would make it less accessible to a requester.

Arizona’s open records law also clarifies records in electronic format are subject to disclosure like any other record. Recent court cases have also held that not only is a document but also its embedded metadata — internal data that describes a document’s structure and history, such as a Word file’s creation date or the architecture of a database’s tables — is public record.

New Mexico’s long silence on basic practices of electronic record-keeping creates opportunities in which individual agencies feel free to choose whether to comply with a data request in the spirit of transparency, or to use the ambiguities in IPRA to frustrate the law’s purpose, stated in the statute as “to ensure … that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of public officers and employees.”

In 2016, The Santa Fe New Mexican newspaper requested data from the state Department of Corrections on medications given to state prison inmates, in spreadsheet format — the format in which the records were kept, as the department acknowledged. Yet the department refused, instead providing what the newspaper described as “nearly illegible” PDF copies.

“The department’s intent in providing practically unreadable, unsortable PDF files can only be to prevent an honest examination of the public records,” reporter Justin Horwath wrote in a complaint filed to New Mexico Attorney General Hector Balderas’ office.

The Corrections Department’s response illustrates a serious weakness of the open records law: It does not distinguish between different kinds of electronic file formats, thus allowing public agencies to provide records that are difficult or impossible to analyze.

“The document at issue contained confidential medical information which existed in two electronic forms — .PDF and Excel,” the ruling from Balderas’ office stated in part. “In order to preserve the confidentiality of the medical information contained in the Excel format, the department provided a copy of the document in PDF format … [and thus] did not violate IPRA.”

That response overlooked the fact that Corrections’ response to The New Mexican newspaper was not a file with confidential information suppressed but a printout of the spreadsheet photocopied with what appeared to be crudely taped pieces of paper blocking one field, then scanned and saved as a PDF.

IPRA anticipates that exempt material in electronic documents may need to be redacted, and states such material “shall be removed along with the corresponding metadata prior to disclosure by utilizing methods or redaction tools that prevent the recovery of exempt information from a redacted electronic document.”

Yet rather than suppress the field within Excel and provide the electronic document as requested, the department apparently chose to print the spreadsheet, tape over thousands of records, scan it and save it as a PDF, and then send that to the newspaper. While the interpretation by Balderas’ office noted that IPRA required redaction in this instance, it ignored the alternative of performing the redaction electronically, which would have provided “the greatest possible information” as IPRA demands — faster, more efficiently and at less cost to taxpayers.

Further restrictions on the table

Since the 2011 amendment, New Mexico’s legislature has not clarified data issues that impede media, business and private citizens from accessing public data and applying it to computerized problem-solving. For example, the legislature could specify public data be preserved whenever possible in a machine-readable data format and provided to the public in that format.

Instead, several bills have been advanced in recent years that would further restrict access to information under IPRA.

  • In the 2017 session, the “IPRA Exceptions for Employment” bill sponsored by Sen. George Munoz (D-Gallup) would have added a new exception to IPRA to shield records that identify applicants for public jobs. That bill did not advance out of committee.
  • Also in that session, Rep. Carl Trujillo (D-Santa Fe) sponsored a bill that would have created an economic development agency to recommend investments in New Mexico businesses from the severance tax permanent fund. The proposal specified that records of the agency’s board meetings would be exempt from IPRA. That bill did not advance out of committee.
  • In 2016, Rep. Miguel Garcia (D-Albuquerque) advanced a bill to require background checks for firearms transferred at a gun show, which further stated that records created or maintained due to the act would be exempt from IPRA. That bill was tabled.

Some municipalities, like Rio Rancho, are taking steps toward treating public data as open by default, building out online portals for public records that are available on demand.

That city’s data portal went up in 2011, according to Clerk Steve Ruger. Before that, he said in an email to Searchlight New Mexico, much of the content was up, just in various parts of the city’s website.

“It is a policy decision to post this information in the interest of being open and transparent,” Ruger said.

Albuquerque maintains dozens of updated machine-readable datasets with tips for developers on how to apply them.

Bernalillo County’s data offerings include contracts, check registers, campaign-finance data and purchase card records for elected officials. It also hired the OpenGov company to build an app that approximates how a homeowner’s property tax dollars are spent.

“The first beneficiaries of governments that seriously adopt the open data philosophy and process are people who work for government,” said Tom Johnson, coordinator of the Santa Fe-based volunteer organization It’s The People’s Data and a longtime open data advocate. “Suddenly they can get at data that’s in those other silos and do their job more efficiently. There are measurable accounts of reducing government expense by just putting data out there.”

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