Heath Haussamen
I’m pleased to report progress in my ongoing efforts to obtain records related to the secretary of state’s claim that she has evidence of foreign nationals illegally voting in New Mexico elections.
But I still don’t have all the records I need to analyze her claim.
In response to my latest records request, the Taxation and Revenue Department (TRD) released un-redacted versions of e-mails between that agency and the Secretary of State’s Office related to the investigation. They also released one of several attached files related to TRD’s research into the matter.
In addition, the agency indicated it might be willing to provide me with copies of the other attachments to those e-mails.
Even if that happens, I may not have all the records I need to be able to determine whether there’s truth to Dianna Duran’s claim. But it would be an important step in the right direction.
Duran claimed in March – at a legislative hearing, in a news release, and in interviews with the media – that her office had matched 117 voter registrations to people in the MVD foreign national database using names and dates of birth. She said 37 of those 117 had illegally voted.
A month later, I told you that Duran failed the open government test because she put a number of hurdles – some illegal – in front of my efforts to obtain the evidence she claims to have to back up her claim.
At that point, I tried another route, requesting information from TRD, which aided Duran’s investigation. That agency immediately shot down Duran’s use of executive privilege as justification for severely redacting e-mails and withholding attached files.
TRD released less-redacted copies of e-mails, citing a different reason to justify its redactions and withhold the attached files – a supposed ongoing, criminal investigation of the matter by the Department of Public Safety.
Hogwash. I told you last month about the head of DPS saying his office was conducting no criminal investigation, but was simply advising Duran’s office. Once it was clear that the law enforcement exemption to the Inspection of Public Records Act didn’t apply, I immediately refilled my request with TRD.
Last week, TRD responded by providing the un-redacted e-mails and one attached file. You can view those records here. You can compare the un-redacted records to the versions that were severely redacted by Duran’s office by clicking here, and with the less-redacted versions TRD originally released by clicking here.
The un-redacted records should be especially interesting to the ACLU, which has filed a lawsuit to try to obtain the same documents I’m after. TRD has now provided me with un-redacted copies of some of the records the ACLU is seeking.
Records I’m still trying to obtain
Unfortunately, TRD still hasn’t given me the most critical documents in its possession – four Microsoft Excel files it created to aid the secretary of state in her investigation. Among the information included in those files is, I believe, the personal information from TRD about foreign nationals that Duran’s office compared with voter records. There may also be information from voter records in those files.
TRD indicated it might be willing to release those files to me. The information falls under the New Mexico Driver’s Privacy Protection Act (NMDPPA), which keeps personal information in driver’s records secret, at least in part to protect people from stalkers. However, an exemption allows the release of the information for research purposes, so long as the person who obtains the information for research doesn’t spread it around.
In my September request I asked that, if TRD was considering withholding any records under NMDPPA, it provide the records to me under that research exemption. I understood all along that NMDPPA applied to some of the information I was requesting, and I never aimed to publish the names and other personal information of people who may have illegally voted.
I simply want to be able to determine – and tell you – whether there’s any truth to Duran’s claim that foreign nationals have illegally voted in New Mexico elections.
In an Oct. 3 letter accompanying the un-redacted e-mails it released to me, TRD’s Chief Legal Counsel Nelson Goodin wrote that, in order to consider my request to release the records under the research exemption, he needed “more information as to the scope and purpose of the research” and written assurance that I would comply with the law, which would require that I not publish or otherwise share personal information contained in the records or use it to contact those individuals.
I did that Tuesday. Hopefully it’s enough to convince TRD to provide me with the Excel files.
Even if I get those records, I may have to find a way to obtain voter records the secretary of state has already refused to provide before I can analyze Duran’s claim. But the SOS cited NMDPPA months ago in refusing to provide voter information, saying the release of voter forms they compared to driver’s license records would reveal confidential information from driver’s records.
At the time, they didn’t buy my argument that they should provide me the records under the research exemption.
Citing the driver’s license law to withhold voter information was already quite a stretch (and that’s an understatement). If TRD is willing to provide records in its possession that actually contain information about people with driver’s licenses, I think I have a good argument for going back to the secretary of state to ask once more for the voter records.
Analyzing the use of executive privilege
TRD’s release of un-redacted e-mails also gives us a chance to see what Duran redacted from these e-mails months ago, with executive privilege as her justification. I’ve already reported that Duran’s use of executive privilege would not have been allowed in the Martinez administration, and that Sarah Welsh, executive director of the N.M. Foundation for Open Government, said the redactions “don’t seem to fit under FOG’s view of executive privilege.”
That should be even clearer now. To explain its use of executive privilege, a staffer in the Secretary of State’s Office wrote to me in May, “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 information Duran’s office redacted months ago doesn’t appear to be about decision-making, Welsh told me earlier this week after reviewing the un-redacted versions of the e-mails.
Duran’s office redacted basic information such as a discussion about how to set up a secure FTP site for sharing files between TRD and the SOS. In one e-mail from an SOS official to TRD, a line Duran’s office redacted states that they want to compare voter registration information including name, date of birth, Social Security Number and address to see if there are matches.
That’s something Duran’s office publicly acknowledged it was doing before it blacked out the same information in these e-mails, with executive privilege as the justification. Why?
Duran’s office redacted a discussion about whether the Social Security Administration charges for access to its records. And one redaction simply states, “Attached file has details of people with no SSN from the file produced by SOS.”
Welsh said an agency that’s evaluating documents for possible redaction based on executive privilege should be looking for “policy advice, different policy options and some of the pros and cons, and you’d be looking for that kind of advice to be going directly to the executive.” We’re talking about “the inner circle, the executive and her closest advisers looking for advice and expertise to help them make a decision,” she said.
These e-mails involve Duran’s chief of staff and TRD staffers – not Duran, not the governor, and not the TRD cabinet secretary. In fact, one e-mail states that the Governor’s Office and SOS have already decided that they want to “authenticate voter registration information with MVD.”
Rather than gathering advice to make a policy decision, Welsh said the e-mails appear to be about “carrying out a policy directive. The governor’s office and the secretary of state have decided they want to match up these records and see what they get, and this is essentially IT people working out the details of how they’re going to set that comparison up.”
“So it doesn’t strike me as something that falls within the purpose of executive privilege,” Welsh said.
Sigh. It’s always disappointing to see elected officials fighting for secrecy rather than transparency, especially to justify withholding basic information like “Attached file has details of people with no SSN from the file produced by SOS.”
It’s been months, but I’m not giving up the fight to obtain the information I need to evaluate Duran’s claim about illegal voting. I’ll keep you updated.