Heath Haussamen
Tax and Revenue refused in May to release documents related to the secretary of state’s claim about foreign nationals illegally voting, saying they were part of a police probe; we now know that police aren’t investigating, so that isn’t a valid reason to withhold records
I told you in June that the state’s Taxation and Revenue Department had largely rejected my request for records related the secretary of state’s claim that she uncovered “evidence” of foreign nationals illegally voting in elections.
Tax and Revenue (TRD) cited the law enforcement exception to the state’s Inspection of Public Records Act (IPRA) to justify redacting e-mails between TRD and the secretary of state related to the situation, and to withhold all attachments.
Those attachments included spreadsheets and other documents that Secretary of State Dianna Duran’s office compared with voter registration forms. The reason TRD refused to release them?
“The Secretary of State’s Office turned this investigation over to the State Police, which is continuing the investigation,” TRD records custodian Patricia A. Silva wrote in her May 26 letter explaining that the records fell under the law enforcement exception to IPRA.
But on Sept. 3, the Albuquerque Journal dropped a bomb on that argument:
“The State Police are not conducting a proposed criminal investigation into 64,000 irregularities in the state’s voter file, although Secretary of State Dianna Duran sent the files to the agency months ago for an inquiry,” the Journal wrote in an article.
Here’s more:
“Gorden Eden, secretary of the state Department of Public Safety, which oversees the State Police, said Friday that his agency has been acting in an ‘advisory’ role with Duran’s office but does not have the resources to look at all 64,000 cases. He also said it is more appropriate for Duran’s office to conduct the inquiry.
“‘This is truly an issue, a case, that needed to be looked at by the SOS’s office,’ Eden said. But Eden did not rule out a future criminal investigation, if evidence is presented that one is needed.”
Outrageous. There’s no criminal investigation, so the law enforcement exception isn’t a valid justification for withholding records. But TRD used it as an excuse anyway.
A violation of IPRA
The law enforcement exception to IPRA can be used to withhold records only when there’s a criminal investigation or prosecution.
“Law enforcement records include evidence in any form received or compiled in connection with any criminal investigation or prosecution by any law enforcement or prosecuting agency,” IPRA states. Documents that can be withheld include only “records that reveal confidential sources, methods, information or individuals accused but not charged with a crime.”
As I reported in June, TRD was already on shaky ground in citing the law enforcement exception.
“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,” N.M. Foundation for Open Government Executive Director Sarah Welsh told me at the time. “And I think the second test, that it would reveal confidential sources, methods, or information, is a real stretch.”
It was a stretch then. Now there’s no question.
Tax and Revenue withheld documents I requested without citing a valid reason for doing so. I believe that’s a violation of IPRA.
A black mark for the Martinez administration
I somehow overlooked the Journal article when it ran Sept. 3. When I became aware of it Monday, I immediately refilled my request with TRD seeking the e-mails and attachments, pointing to the Journal article as evidence that there’s no justification for withholding the records under the law enforcement exception to IPRA.
I requested records from TRD in April because Duran had already refused to release them, citing executive privilege and violating IPRA in her office’s dealings with me. Tax and Revenue said executive privilege was not a valid reason to withhold the records after I pointed out that Duran’s use of it would not have been allowed under an executive order Gov. Susana Martinez issued for her administration.
So I’ve had executive privilege and the law enforcement exception to IPRA used to justify withholding these records, and both were bogus. Let’s hope those who want to keep these documents secret are out of excuses.
Tax and Revenue’s failure to release these records is a black mark for the Martinez administration. But it’s one that can be remedied now.
Just release the documents.