Susana Martinez
Martinez isn’t saying how she’s keeping track of job-related appointments. Sunshine experts disagree on whether, if she keeps them on a personal calendar, it’s a public record.
The Third Judicial District Attorney’s Office in Las Cruces says it’s not maintaining a calendar or schedule for District Attorney Susana Martinez, who’s spent a lot of time in recent months on the campaign trail in her quest to become governor.
Las Crucen Ernie Bean recently filed a records request with the office for Martinez’s schedule for the month of March. Chief Deputy District Attorney Susan Riedel, the office’s records custodian, responded by writing that the office “does not maintain a calendar or schedule” for Martinez.
Does that mean Martinez is keeping track of appointments and events related to her work as district attorney on her own, using equipment or resources not belonging to the district attorney’s office, or that no one is keeping a schedule of Martinez’s job-related work?
Martinez declined to answer that question.
Nothing in state law requires Martinez’s office to maintain a calendar or schedule of her appointments. If her office did maintain such a schedule, it would be a public document under the New Mexico Inspection of Public Records Act.
How is Martinez keeping track of appointments?
Martinez’s schedule has been the subject of some controversy in Las Cruces, where there’s been discussion about how much time the Republican gubernatorial candidate is spending working in a job Doña Ana County taxpayers are paying her $109,603 to do this fiscal year.
Clearly, running for governor has consumed a great deal of Martinez’s time in recent months and has frequently taken her to other parts of the state for campaign events. But there’s no question that Martinez has continued to do work as district attorney even while she’s been running for governor:
• Martinez spoke at a child abuse awareness event in Las Cruces earlier this month.
• Last month, Martinez held a news conference to announce that no charges would be filed against two police officers involved in a shooting death, which I’ve recently written about.
• Martinez has been involved in the ongoing investigation concerning Las Cruces City Manager Terrence Moore.
The question is how Martinez is keeping track of her job-related appointments and events.
A public records question
The Attorney General’s Office and the head of the New Mexico Foundation for Open Government (FOG) disagree about whether, if Martinez is keeping track of her job-related appointments on her own using equipment or resources not owned by her office, such a schedule would be a public record.
Phil Sisneros, the AG’s spokesman, said such a schedule would not be a public record, but he cautioned that he was speaking generally, not about any specific situation.
“It is our position that personal calendars and schedules are more like notes a public employee keeps for his or her own use, even if they include business appointments,” Sisneros said.
He said that contrasts with the AG’s belief that messages public officials send using personal e-mail accounts are public records if they relate to public business. That’s because, Sisneros said, such e-mails “are created or maintained for or on behalf of the public body,” unlike the personal calendars and schedules he said some employees keep for their own use.
On the other hand, FOG’s executive director, Sarah Welsh, said if Martinez is keeping a personal calendar that includes appointments and events related to her job, it’s a public record. Appointments not relating to her job can be redacted before it’s released, she said.
Welsh said the public records act “applies to all documents regardless of physical form or characteristics that are used, created, etc. by any public body and relate to public business.”
“If this is the primary way that she keeps track of her public work, that’s clearly a public record,” Welsh said.
Sisneros said there’s no case law to settle the legal question.
‘Basic oversight’
As to the disagreement with the AG, Welsh said her organization tends to interpret the public records act “more broadly and aggressively in favor of openness than the AG does in some of these things.”
“We err on the side of openness and say if it deals with public business it’s a public record,” Welsh said.
That’s the legal argument, she said. Welsh’s policy argument is that Martinez should release whatever information she has about her public appointments and events.
“That’s just basic oversight of what a public official is doing,” Welsh said. “… Governors have virtually no expectation of privacy. Everything they do, 24/7, is subject to public scrutiny. That’s one of the hazards of the job, and that’s probably one reason why so few people want it.”
“Bottom line, anyone who wants to hold that position better get used to questions like these,” Welsh said.