Heath Haussamen
Government officials throughout New Mexico, including legislators, should use public e-mail accounts, which are undoubtedly subject to the Inspection of Public Records Act, to discuss public business.
There’s been a lot of criticism of Gov. Susana Martinez lately because she and staffers were using private e-mail accounts to discuss public business.
Martinez took a positive step by directing all executive branch employees – including, apparently, herself – to use public e-mail accounts in the future to conduct state business.
There’s a wider issue to consider. Private e-mail use pervades many corners of government in New Mexico. Dozens of legislators use private e-mail accounts for official business and even list private addresses as their official contact information on the Legislature’s website, including Senate Majority Leader Michael Sanchez, House Majority Leader Ken Martinez and House Minority Leader Tom Taylor.
I recently requested from all three, under the state’s Inspection of Public Records Act (IPRA), all e-mails sent to and from those personal accounts for the prior 30 days.
They jointly sent me a response saying I raised an issue that was “important, interesting and complex.”
“Frankly, there are a lot of unresolved questions of how, or even whether, the Inspection of Public Records Act applies to emails on legislators’ personal email accounts,” they wrote. “Among those are whether individual legislators are considered public bodies as defined in the act, how emails to and from constituents should be treated under the act and whether individual legislators have the authority to direct policy or take official action like executive officials.”
The three suggested that we meet to discuss the issue further next time I’m up north.
‘Unresolved’ questions aren’t unresolved
I’m happy to meet with Sanchez, Rep. Martinez and Taylor, but I don’t believe the questions they raise are unresolved.
Are individual legislators considered public bodies? Of course not. But as a group, the Legislature is a public body. Records it creates are subject to IPRA, which defines a “public body” as “the executive, legislative and judicial branches of state and local governments and all advisory boards, commissions, committees, agencies or entities created by the constitution or any branch of government that receives any public funding…”
And public records, according to IPRA, are “all documents, papers, letters, books, maps, tapes, photographs, recordings and other materials, regardless of physical form or characteristics, that are used, created, received, maintained or held by or on behalf of any public body and relate to public business…”
To suggest that records created by an individual legislator may not be included in that definition is to read the law in an extremely narrow way that has wide implications. It would suggest that any records created by an individual county commissioner or school board member, for example, aren’t public records. It would suggest that any records created by a single member of the executive branch who doesn’t have decision-making authority, such as an administrative assistant or a low-level staffer, aren’t public records.
I’ve never seen the act interpreted that way in all my years as a journalist.
The lawmakers raised a question about how e-mails to and from constituents should be treated under the act. Do we expect correspondence to and from constituents who contact Gov. Martinez to be public records? Absolutely. Why would it be any different with legislators? The act doesn’t give the Legislature any more wiggle room than the executive.
On the three lawmakers’ final question: Whether “individual legislators have the authority to direct policy or take official action like executive officials.” It’s irrelevant. Again, IPRA doesn’t apply only to documents created by those who have the authority to direct policy or take official action. It applies to all records “used, created, received, maintained or held by or on behalf of a public body.”
Building public confidence in government
I’m admittedly not an attorney, but the way I read the law, it seems clear to me that e-mails public officials send or receive related to public business meet the state’s legal definition of public records, regardless of whether those e-mails are located on public or private servers.
I would argue that e-mails from a personal account that relate to public business are being used and held on behalf of a public body – and that’s part of IPRA’s definition of a public record.
In addition to requesting the three lawmakers’ e-mails, I’ve also requested all e-mails sent to and from Gov. Martinez’s Susana PAC account or accounts for a 30-day period. The PAC told me to send the request to Martinez’s government office. That office has promised a formal response by July 10.
I don’t know whether the governor will agree with my assertion that public officials’ private-account e-mails relating to public business are public record. I don’t know whether a court would agree with me. It’s a controversial topic.
But I do know this: Government officials throughout New Mexico, including legislators, should use public e-mail accounts, which are undoubtedly subject to IPRA, to discuss public business.
Scandal after scandal means the public is justifiably skeptical of its government. We’ve recently seen people close to Gov. Martinez, using private e-mail, create the appearance that the awarding of a state contract was an insider deal.
Officials need to seek ways to build public confidence in government. In this case, full transparency is the best way to accomplish that goal.