Secretary of State Dianna Duran
Martinez’s executive order makes her administration’s policy on executive privilege more transparent than the secretary of state’s, open government advocate says
Secretary of State Dianna Duran is citing executive privilege to severely redact e-mails related to her office’s investigation into possible voter fraud before releasing them to the public.
The redactions appear to stand in stark contrast with an executive order issued by Gov. Susana Martinez that details when her administration can and can’t use executive privilege to keep documents secret. The executive order was an attempt to demonstrate when Martinez took office that she wouldn’t use executive privilege as liberally as did her predecessor, Bill Richardson.
To be clear, Duran is not bound by Martinez’s executive order, which applies only to executive branch agencies under Martinez’s direct control. But it’s noteworthy that the recent use of executive privilege by Duran appears to be an action that Martinez wouldn’t allow in her administration.
In other words, Duran, a Republican, appears to be using executive privilege in a way that’s similar to that of Richardson, a Democrat – and that her fellow Republican, Martinez, wouldn’t allow in her administration.
SOS: Release would compromise decision-making process
As I wrote last week in a commentary, Duran claimed in March that her office had found evidence of foreign nationals registering to vote and in some cases voting, even though doing so is illegal. After a month of trying to obtain documents related to the investigation, I came up with almost nothing.
Among Duran’s reasons for withholding information was the executive privilege claim, which she used to redact e-mails (see them here) related to the investigation between staffers in her office and the Motor Vehicle Department.
When asked, this was the secretary of state’s reason for citing executive privilege:
“Revelation of the information within these emails will compromise the Secretary of State’s decision-making process, and thus outweighs the public’s interest in disclosure.”
The secretary of state cited a 1981 case in which the N.M. Supreme Court recognized the use of executive privilege, but in the context of a separation of powers argument between the executive and judicial branches, not a public records request. The court has never ruled on the use of executive privilege as it relates to the release of documents to the public.
Last week, Sarah Welsh, executive director of the N.M. Foundation for Open Government, said it’s concerning any time a government agency claims executive privilege because it’s “a nebulous” claim. She said the secretary of state’s redactions in the e-mails “don’t seem to fit under FOG’s view of executive privilege.”
And it was Welsh who pointed out that Duran’s use of executive privilege “stands in contrast to” Martinez’s executive order.
Governor’s executive order
Gov. Susana Martinez
The Richardson administration cited executive privilege on more than one occasion to keep documents secret. When she took office, Martinez immediately issued an executive order (read it here) that a news release stated “ensures greater transparency and openness in the process used by the public and the press to access public documents, clarifying that the new administration does not intend to use executive privilege to unjustifiably block the public’s view of the activities of state government.”
Martinez’s order allows the use of executive privilege only with written permission from her office and if the following conditions are met:
• “The information sought to be held confidential consists of communications between or among the Governor, a Cabinet Secretary, an agency head or any of their high-level advisors.
• “The advice was rendered in connection to a pending or anticipated decision.”
• “The Office of the Governor determines that the information sought to be kept confidential does not consist of evidence of potential or actual government misconduct.
• “The Office of the Governor independently is satisfied that these conditions have been met.”
Through a spokesman, Martinez refused to answer questions related to the contrast between her executive order and Duran’s use of executive privilege.
Martinez’s is ‘a different and more transparent approach’
Welsh said Martinez’s executive order appears to be a “different and more transparent approach” than Duran has taken. Welsh’s claim is based on assumptions that Motor Vehicle Division employees are not “high-level advisors” for anyone in the Secretary of State’s Office, and that the e-mails do not contain only advice for SOS staff.
“It seems much more plausible that they simply offer an explanation for, or answer questions about, what is in the various attachments,” Welsh said. “I would be surprised if MVD data folks were offering advice to the SOS on how to conduct and/or publicize a voter-fraud investigation, either technically or politically.”
The bottom line, according to Welsh:
“You have to ask whether an agency is truly trying to provide the greatest possible information to the public, or is trying to find legal cover for keeping information hidden.”