Heath Haussamen
My efforts to obtain the evidence behind Secretary of State Dianna Duran’s claim that she has found instances of foreign nationals illegally voting have been shot down again, this time by the Taxation and Revenue Department
Two months ago I asserted that Secretary of State Dianna Duran failed the open government test because she put a number of hurdles – some of them illegal – in front of my efforts to obtain the “evidence” she claims to have found of foreign nationals illegally voting in elections.
Since then, I tried a backdoor route to obtain some of the information, filing a public records request with the state’s Taxation and Revenue Department (TRD) for e-mail correspondence between its Motor Vehicle Division and Duran’s office, and all documents attached to those e-mails.
The attachments are at the heart of Duran’s claim. Using those spreadsheets and other documents from TRD, she says she compared voter registration forms with MVD’s foreign national database to come up with her assertion that at least 117 foreign nationals had registered to vote and that 37 of them had voted in New Mexico elections.
The good news? The administration of Gov. Susana Martinez, through TRD, rejected Duran’s claim that executive privilege allowed her to withhold some information I and others requested.
The bad news? Tax and Revenue found its own justification for refusing to release information. And it’s a justification the N.M. Foundation for Open Government says is questionable.
Rejecting the use of executive privilege
Here’s how the situation has played out:
As part of my attempt to get information from Duran’s office, I requested and was given copies of e-mails the ACLU also obtained relating to the situation. The e-mails were so heavily redacted that they’re mostly useless.
Duran claimed executive privilege in redacting the e-mails. “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,” a staffer wrote to me.
FOG’s executive director, Sarah Welsh, said at the time that the redactions “don’t seem to fit under FOG’s view of executive privilege.” And as I later pointed out, Duran’s use of executive privilege wouldn’t be allowed under an executive order issued by Martinez, a fellow Republican, if Martinez’s executive orders applied to the Secretary of State’s Office. (They don’t.)
So I decided to try to go around Duran. I requested from Martinez’s administration the same e-mails Duran had provided with extreme redactions, and the attached files that Duran refused to provide.
In responding to my request in late May, TRD rejected Duran’s use of executive privilege.
“We should be clear it is our understanding that these same emails were requested from the Secretary of State and they chose to assert executive privilege,” Patricia A. Silva, TRD’s records custodian, wrote in the letter to me. “The Department does not feel executive privilege can be asserted, or would appropriately apply over these e-mails.”
Of course, that came after I pointed out that Duran’s use of executive privilege wouldn’t be allowed in the Martinez administration.
Citing the law enforcement exemption
The problem, as you can see from the copies of the e-mails TRD did provide to me (click here), is that they found another reason to withhold any useful information, and still redacted much of the content of the e-mails.
State law allows agencies to withhold “law enforcement records that reveal confidential sources, methods, information or individuals accused but not charged with a crime.” State police are investigating Duran’s claim, and Silva wrote that TRD was redacting portions of e-mails that “we believe fall under the law enforcement records exemption.”
Silva wrote that TRD would also not turn over the attachments because of the law enforcement exemption.
Welsh questioned TRD’s claim that the law enforcement exemption applies in this instance.
“They cite the law enforcement exception, which has two prongs. I think it’s a stretch to say that it meets the first test, which is that it’s evidence in a law enforcement investigation,” Welsh said. “And I think the second test, that it would reveal confidential sources, methods, or information, is a real stretch.”
“They need to flesh that out and really explain how that’s confidential police information,” Welsh told me.
I asked Silva to do that on May 31. She replied that she was forwarding my request to Nelson Goodin, the office’s chief counsel and a former prosecutor in the district attorney’s office Martinez used to run. More than three weeks later, and despite a second attempt by me to get a response, I have yet to hear from Goodin.
Interestingly, Silva’s letter reveals some disagreement on use of the law enforcement exemption.
“It is our understanding that the Secretary of State’s Office did not assert the law enforcement exception because it had received advice from the Attorney General’s Office that the exception was not available to it because it is not a law enforcement agency,” she wrote. “However, the Deputy Attorney General has confirmed that the availability of this exception is based upon the nature and content of the documents rather than the identity of the agency holding them.”
Sounds like there’s some disagreement on that point even within the AG’s office.
Keeping the public in the dark
So, months after Duran first made her headline-grabbing claim that she had uncovered evidence of voter fraud, I’m still no closer to being able to tell you whether her claim is valid. As others have reported, the state police are looking at 64,000 voter cases to determine if any involved fraud. We still have no idea whether there might actually be fraud or if, as Democrats assert, this is a waste of taxpayer money and a political witch-hunt.
As the Las Cruces Sun-News reported Sunday, “Democrats on a legislative committee made Secretary of State Dianna Duran the butt of jokes and criticism Friday, saying she had mishandled an investigation into voter fraud.” Sen. Cisco McSorley, D-Albuquerque, was quoted as saying he couldn’t “remember one documented case of voter fraud.”
The state GOP was quick to fire out a news release detailing two cases in the last 20 years. The most recent occurred in Sunland Park and was prosecuted by the office of then-District Attorney Susana Martinez.
The bottom line is that voter fraud has occurred in New Mexico, but no evidence of a widespread problem has ever been presented publicly. Duran now claims to have found evidence, but she and the Martinez administration are making sure the public doesn’t see it.
Why?
Martinez and I have disagreed in the past about whether certain law enforcement records are public. Even if I think it’s wrong, it doesn’t surprise me that a former district attorney’s administration would interpret the law in the least transparent way possible when a criminal investigation is the issue.
But it’s still a problem. Welsh said Duran and TRD seem to be “looking for every reason under the sun” to withhold information. In other words, they’re erring on the side of secrecy rather than transparency, and in Duran’s case, the problem is so extreme that I identified violations of the Inspection of Public Records Act.
“There are certainly ways for them to release that information if they wanted to,” Welsh said.
She’s right. Duran failed the open government test. Tax and Revenue is heading down a slippery slope, and its failure to elaborate on why the records I requested can be withheld from the public fails the smell test.
Their erring on the side of secrecy begs the question: Why? Democrats think they have the answer. Are they right?