Lt. Gov. Diane Denish (Photo by Heath Haussamen)
Lieutenant governor initially failed to forward records requests from GOP gubernatorial candidate Allen Weh to Department of Finance and Administration
The office of Lt. Gov. Diane Denish says it inadvertently violated the state’s Inspection of Public Records Act late last year when it failed to forward two requests from Republican gubernatorial candidate Allen Weh to another agency that maintained some of the records that were sought.
Last week, after a legal threat from Weh, Denish’s office corrected those violations by forwarding both of Weh’s November records requests to the Department of Finance and Administration, as required by law, and notifying Weh that it had done that.
“We have recently learned that this office should have been aware that another state agency, the Department of Finance and Administration (DFA), had additional responsive documents at the time of our earlier response to you and should have referred your request to the custodian at DFA at the time,” Denish’s chief of staff, Joshua Rosen, wrote in a Friday letter to Weh. “We inadvertently failed to do so.”
The public records act requires that state agencies forward such requests to other agencies that possess documents sought by those requests. That’s designed to be helpful to citizens, because agency records custodians are more familiar with who maintains records, said Sarah Welsh, executive director of the New Mexico Foundation for Open Government.
Welsh said Denish’s action to correct the violation appears to be sufficient.
“It’s a little frustrating for us, but the courts say, generally, that if you get the documents, no harm, no foul,” Welsh said.
She added that the provision in the public records act that requires agencies to forward requests is “overlooked” frequently. Gov. Bill Richardson’s office recently refused to forward requests for information about the 59 exempt employees his office laid off in January to the agencies that maintain such records.
Weh’s requests
Weh, who is battling four other Republicans for the right to take on Denish, the Democrats’ candidate for governor, in the general election, filed two records requests in November. The first sought records related to about $225,000 in federal stimulus funds the governor gave to Denish’s office in 2003. Denish’s office provided Weh with records detailing how almost $87,000 of that was spent. Rosen told the Independent last week that just under $11,000 of the $225,000 reverted because it was unspent.
That left around $127,000 unaccounted for after Denish’s office initially responded to Weh’s request in November.
Weh’s second request sought records of all contracts the lieutenant governor’s office entered into that provided her office “a service or product” since Denish took office at the beginning of 2003. Denish’s office responded on Dec. 1 that the request was “overly burdensome” and said it would take 90 days to fully respond. The request is pending.
Other than failing to forward both requests to DFA, Welsh said it appears that Denish’s office followed the law in responding – assuming it turns out that Denish’s office does possess a great deal of records responsive to Weh’s second request that justify the “overly burdensome” claim.
In fact, Welsh said, many agencies don’t give a specific timeline for when they’ll respond to requests that are overly burdensome, though providing a timeline is recommended by the attorney general.
“We like to see them giving a specific timeline because then a person has an expectation and can hold them to that,” Welsh said. “That’s much better than what we usually see.”
Weh still not satisfied
Weh, however, isn’t satisfied with the way Denish has dealt with the situation. He sent a letter to her office on Jan. 20 threatening legal action over the “overly burdensome” response to his second request and the fact that Denish didn’t account for all federal stimulus spending in response to his first request.
And after receiving Rosen’s letter admitting to and correcting the violation, Weh spokesman Christopher Sanchez said Denish has chosen “to play games with the law” as it relates to these records requests “instead of setting an example of transparency and coming clean on all of it.”
Sanchez pointed to some controversies over the way Denish spent the federal stimulus money, including a portion that was spent on political news releases.
“Voters will eventually learn about her spending priorities, whether she likes it or not,” Sanchez said. “Lt. Gov. Diane Denish may choose to drag her feet on a simple records request, but since the custodian at the DFA is not running for governor this year, we are hopeful that the department will comply with the request in a more timely manner.”
Rosen wrote in his Friday letter to Weh that his office has already provided all documents in its possession related to the stimulus spending, and is on track to respond with Weh’s second request for all contracts within 90 days of Dec. 1 as promised.
In an e-mail, Rosen said the initial failure to forward the requests to DFA was “an inadvertent oversight, and we did our best to correct it.”
Weh isn’t the only one in this political season to be digging for information using records requests. The Democratic Party of New Mexico has a request pending with the office of Doña Ana County District Attorney Susana Martinez, another Republican candidate for governor.
A prior version of this posting incorrectly stated that providing a timeline for response to requests deemed overly burdensome is required.