Sarah Welsh
The Senate and AFSCME are proposing to pull private information into the public domain, using the Sunshine Portal as the vehicle. That was never the intent of the Sunshine Portal, which is meant to make already-public information available at the click of a mouse.
The purpose of the New Mexico Sunshine Portal is simple – to make public information available at the click of a mouse. For too long, government information has been “public” in theory but hidden in practice – because it is difficult, time-consuming and costly to obtain. That’s why digging into public records has traditionally been the province of investigative journalists, attorneys and academic researchers.
Technology promises to change all that. Technology promises to give meaning to what our state sunshine law says – that every person has a right to inspect public records. Not just journalists, lawyers or government officials, but everyone. If we actually want an informed electorate in our democracy, we have to make it easy to become informed.
New Mexico’s Sunshine Portal went live just over a year ago, with the kind of basic information you see on similar websites around the nation – and among a select but growing number of websites for New Mexico counties, municipalities and school districts. It has budgets, revenue figures, contract numbers and amounts, individual purchases made by state government (including the Legislature and courts) and employee salaries. This is the kind of information that’s easy to grab and put online – it’s in a single database already.
Would I love to see more information on the Sunshine Portal? Absolutely. It was conceived as an expandable repository of information that might be useful to citizens and taxpayers. In coming years, particularly as more and more information becomes digitized, we should have access to more and more data about more and more aspects of government.
But it’s important to keep that original purpose in mind – making public information available to the public.
Proposing to pull private info into the public domain
A bill pending in the Legislature proposes to change that basic purpose. A majority of senators, 22-19, agreed with the American Federation of State, County and Municipal Employees that if public worker salaries are posted on the Sunshine Portal, the salaries of anyone who works for a private company holding a state contract should also be posted. Not just the name of the company or the amount of its contract (that information is already posted on the Portal, and the Public Regulation Commission posts basic corporate ownership information) but the names and salaries of every company employee.
That information is outside the public domain – you cannot now walk into any government office and obtain it under the Inspection of Public Records Act. So let’s be clear – the Senate and AFSCME are proposing to pull private information into the public domain, using the Sunshine Portal as the vehicle.
That was never the intent of the Sunshine Portal, and it is not part of the Foundation for Open Government’s mission of opening up government. Therefore, FOG must oppose Senate Bill 30 as it currently stands.
A clear and consistent position
FOG has been, and surely will be again, accused of hypocrisy about things like this. Some people consider us radical for wanting all government information to be open to the public (with limited exceptions,) and they ask where that slippery slope ends. Or, in situations like this one, they ask why we’re not willing to go even farther. Where does transparency begin and end?
I think our position has always been clear and consistent. In a democracy, the public has a right and duty to know what its government is doing. So nearly 20 years ago, FOG helped write into state law a clear definition of what records the public is entitled to see. Basically, it’s every record that is created, used, received, maintained or held by the government, or on the government’s behalf, that relates to public business.
That definition includes public-employee salaries, and it includes information about who gets contracts, how much they’re worth, and what they’re for. It can even include records created by a private entity which is hired to perform a direct public service on the government’s behalf, as we argued recently in a pending Court of Appeals case – consider the case of a private company operating a public jail, or a nonprofit running a public cable-access channel.
But the current definition of public records does not include the payroll of a private company that merely sells goods or services to the government. This basic framework for public information works, and it has been adopted with minor variations all across the nation. FOG works to keep it in law, to make sure it’s followed, and to make sure citizens don’t run into any funny business when they try to exercise it. (They do, of course, which is why we’re still here.)
A threat to the Sunshine Portal
After Monday’s debate in the Senate, I had hoped we could craft an amendment that would pull into the Sunshine Portal more public information about state contracts. There were plenty of good ideas proposed, and certainly there is plenty of public information that the public should be interested in seeing.
But as this short session winds down, I don’t think there is enough common ground to move forward with that kind of consensus amendment. Therefore, FOG will oppose Senate Bill 30 as long as the contractor-payroll requirement is attached to it. Passing this into law would threaten to bring down the entire Sunshine Portal, not to mention government transparency’s good name.
And that would ultimately hamper our efforts to make public information truly public.
Welsh is executive director of the New Mexico Foundation for Open Government.