The New Mexico Educational Retirement Board (ERB) is scheduled to decide on Friday whether the agency should reverse courses and release federal grand jury subpoenas it has received.
“Release of Subpoenas” is an item on the agenda for Friday’s meeting. The chairman of the board, Bruce Malott, said in an e-mail that he “thought it important that the issue be decided by the board as a whole because of the significance of the matter and the public’s right to know.”
Friday’s meeting begins at 9:30 a.m. and will be held at the agency’s Albuquerque office, 6201 Uptown Boulevard NE Suite 203.
Earlier this month, Malott wrote a letter to ERB General Counsel Christopher Schatzman stating that he wants the agency to reconsider its decision to withhold release of two federal grand jury subpoenas it has received. That letter stated that Malott wanted to discuss the issue during an upcoming board meeting if Schatzman was unwilling to reconsider.
“… sunlight is the best disinfectant,” Malott’s letter stated. “… when in doubt, I expect our staff to put its collective thumb on the scale in favor of disclosure, rather than nondisclosure.”
Late last month, the ERB and State Investment Council (SIC) both denied requests from me and others for copies of subpoenas from the U.S. Attorney’s Office related to investments. In denying my request, Schatzman cited the exemption to the state’s Inspection of Public Records Act that allows for denial “as otherwise provided by law,” and wrote in his letter that the federal public records law in some instances exempts records compiled for law enforcement purposes.
While New Mexico courts have not addressed whether that federal exemption applies to state law, some other states’ courts have said it does apply there, according to Schatzman’s letter. The SIC’s letter, from Public Information Officer Charles Wollmann, says essentially the same thing.
The responses from the ERB and SIC are different from those I received recently from two other state agencies that have been subpoenaed in federal investigations. The governor’s office has released the subpoena it has received in the federal probe of allegations of pay to play in the Richardson administration.
Meanwhile, the New Mexico Finance Authority (NMFA) has denied my request for the subpoena it received in the pay to play probe. My business, Haussamen Publications, which publishes this site, has sued the NMFA to try to force the release of that subpoena. The lawsuit is pending.
In his letter, Malott referenced the release of the subpoena by the governor’s office in urging Schatzman to reconsider. But he also wrote that he doesn’t know whether law enforcement has requested that the ERB not release the subpoenas. If that has happened, Malott asked Schatzman to ask “the appropriate federal official” to reconsider.
If federal authorities have requested nondisclosure and persist in that request even after being asked to reconsider, “then I agree it would be prudent for the ERB to honor the request, absent a Court Order,” Malott wrote.