Susana Martinez
Months after filing its request for financial records with District Attorney Susana Martinez’s office, the state Democratic Party is still working to obtain all documents that exist.
The stumbling blocks: The office didn’t initially provide everything it has, but it’s working to remedy that. And it didn’t forward the party’s records request to the state finance department – which a sunshine group says it was required to do.
In January, the party requested various financial records going back to 1997, when Martinez took office. Susan Riedel, the records custodian for the Third Judicial District Attorney’s Office, originally provided the Democrats with financial records for the past three years – saying that’s all the office is required to and does maintain.
But NMPolitics.net checked with the state records administrator, Sandra Jaramillo, for help navigating the state’s complex Records Retention and Disposition Schedules. Jaramillo pointed to a provision that requires Martinez’s office to retain contracts for six years after the termination of those contractual agreements.
Riedel was correct in telling Democrats that they were required to keep all other types of financial records for three years, according to information provided by Jaramillo.
Riedel told NMPolitics.net that her January letter to the Democrats stating that contracts were available for only three years was a mistake. She’s already provided the Democrats with three years of those and other financial records for inspection and given them copies of the documents they wanted.
Now, Riedel said, she’s gathering the additional three years of contract files to make available for inspection.
“It’s an ongoing process,” Riedel said.
A duty to forward requests
The other issue is that Riedel didn’t forward the Democrats’ January request to the state Department of Finance and Administration. While Martinez’s office only maintains financial records for 3-6 years, DFA keeps some of them as far back as 2000.
The party will still be able to obtain those records from DFA – it filed a request with the agency, which is gathering the records for inspection – but Sarah Welsh, executive director of the New Mexico Foundation for Open Government, said Riedel had a duty to forward the request so the Democrats didn’t have to do it on their own.
Welsh pointed to a recent letter from the attorney general to the Governor’s Office about the governor’s refusal to provide records related to the layoffs of exempt employees or to forward requests to agencies that possess such records.
The Inspection of Public Records Act, the AG’s letter states, “obligates a public body, such as the Governor’s Office, that receives a request for records not in that body’s possession to forward that request to the proper custodian, if known, and notify the requester.”
That letter also states that if, after “reasonable inquiry,” the office is unable to figure out who else has records responsive to a request, it can notify the requester that it doesn’t have the records and explain efforts that were made to find those records.
Welsh said the burden is on the agency, not the requester, to figure out where a request should go because the government is so big and unwieldy. While the Democrats were able to figure out where to send their request, the average citizen might not be able to do that.
“When someone agrees to be a records custodian they take on the responsibility of figuring out where it needs to go,” Welsh said.
Riedel disagreed, saying because her office had some records responsive to the request she had no duty to forward it to other agencies under the public records act. Had her office possessed no responsive records she would have been required to forward the request, she said.
Riedel said that happened recently with a request for her office’s most recent audit. Her office doesn’t have a copy yet, so she forwarded the request to the state auditor.
In both cases, Welsh said, Riedel was required to make a “reasonable effort” to determine if another agency possessed any of the records that were requested but that her office no longer maintains.
But what does “reasonable effort” mean? Making a phone call? Memorizing the records retention schedule? Welsh said the definition of that term is a gray area.
“But not doing it at all is not reasonable,” Welsh said.
Dems expect Martinez to ‘fully comply with the law’
James Hallinan, spokesman for the state Democratic Party, had this to say about the ongoing situation with the office of Martinez, who is a Republican candidate for governor:
“Ms. Martinez is campaigning on ethics and running on law enforcement, so the Democratic Party would hope that she would fully comply with the law, such as IPRA, and we expect that to happen going forward,” he said.
It’s worth noting that Hallinan was the records custodian in the office of Lt. Gov. Diane Denish – the Democrats’ candidate for governor – when Denish’s office failed to forward a request to DFA from one of Martinez’s opponents, Allen Weh, earlier this year.
Once made aware of that, Denish’s office forwarded Weh’s request to DFA and said it had inadvertently violated the public records act by initially failing to do so.