I first encountered the Richardson administration’s use of executive privilege several years ago when the Office of the State Engineer cited that as the reason for denying my records request related to dealings with the Verde Group on a controversial development project in southern Doña Ana County.
At the time, I was a reporter at the Las Cruces Sun-News, and the newspaper was unwilling to challenge that justification for denying my request. End of story.
Now the New Mexico Independent (for which I write) has experienced the use of executive privilege by the governor’s office as the justification for denying a request filed under the state’s Inspection of Public Records Act.
The Independent’s Trip Jennings has been trying to find out whether Gov. Bill Richardson met with investment marketer Marc Correra, the son of a friend and fundraiser, before the state decided to invest $90 million in a fund Correra was pushing.
The investing of that money — which the state later lost — is the subject of the pay-to-play lawsuit brought by Frank Foy on behalf of the state.
The governor and his staff have refused to answer Jennings’ question. Now the governor’s office is citing executive privilege in denying Jennings’ request for “documents from the governor’s office from January through August 2006 that would have divulged with whom he had met in the months prior to the costly investment that benefitted the son of the governor’s friend to the tune of millions of dollars,” according to an article the Independent published today.
The rationale from the governor’s office: “The governor’s calendars, datebooks and other documents that would shed light on his schedule are protected by executive privilege,” the article states.
‘The scope of the privilege is undecided’
Executive privilege lets executive officials withhold documents and other information on the basis that releasing it would somehow harm the decision-making process. As Jennings points out in today’s article, “The theory behind the protection is that by guaranteeing confidentiality, the government will receive better or more candid advice, recommendations and opinions, resulting in better decisions. This deliberative process privilege is often in dynamic tension with the principle of transparency in government. And that turns out to be a central tension in New Mexico law.”
Here’s more:
“A guide put out by the New Mexico Attorney General on the state’s Inspection of Public Records Act explains that executive privilege is meant to protect the content of the advice given to the governor by advisers.
“But how far the privilege extends — say for example, to the identities of the advisers — is an unanswered question in New Mexico law, said Al Lama, Attorney General Gary King’s chief deputy.
“‘The scope of the privilege is undecided,’ Lama said. ‘The recognition of privilege in New Mexico is to safeguard the executive’s decision-making process and a court has not determined that disclosure of who the governor met with is or is not confidential.’”
Sounds like a situation that’s ripe for a legal challenge…