{"id":28541,"date":"2011-04-20T08:50:40","date_gmt":"2011-04-20T14:50:40","guid":{"rendered":"http:\/\/www.nmpolitics.net\/index\/?p=28541"},"modified":"2011-11-18T07:01:41","modified_gmt":"2011-11-18T14:01:41","slug":"secretary-of-state-fails-open-government-test","status":"publish","type":"post","link":"https:\/\/nmpolitics.net\/index\/2011\/04\/secretary-of-state-fails-open-government-test\/","title":{"rendered":"Secretary of state fails open government test"},"content":{"rendered":"
\"\"<\/a>

Heath Haussamen<\/p><\/div>\n

Last month Dianna Duran claimed to have evidence of foreign nationals illegally voting in elections, but she won\u2019t share that evidence with the public. I\u2019ve identified several potential public records act violations stemming from her dealings with me.<\/h4>\n

When Secretary of State Dianna Duran<\/a> claimed last month that her office had evidence of 37 foreign nationals illegally voting in elections, I expected documents to be forthcoming.<\/p>\n

Instead, I\u2019ve spent a month going back and forth with the Secretary of State\u2019s Office about my requests for records, and I have almost nothing to show for it except a handful of denials. Duran, in my view, has pushed the limits of what can be kept secret under the state\u2019s Inspection of Public Records Act<\/a> (IPRA) and is on very shaky ground.<\/p>\n

In other words, I\u2019ve identified several potential IPRA violations stemming from her office\u2019s dealings with me.<\/p>\n

An ongoing investigation<\/h3>\n

Duran initially said on March 15, at a legislative hearing and in a news release<\/a>, that her office had matched 117 voter registrations to people in the MVD foreign national database using names and dates of birth. She also said 37 of those 117 had voted in New Mexico elections.<\/p>\n

The secretary of state used those findings to try to convince a legislative committee to approve a voter identification bill. The committee killed the bill.<\/p>\n

Interesting, right? We\u2019ve heard Republicans claim to have evidence of voter fraud every so often over the years, but proof of widespread voter fraud has never been made public.<\/p>\n

Duran\u2019s claims sounded at first as though they had a chance of being more credible than past instances. Plus, the evidence existed at least in part in public records, so I thought I could get my hands on it.<\/p>\n

Nope. The state\u2019s elections director, Bobbi Shearer, told me the office wasn\u2019t releasing any documents because there was an ongoing investigation. But public records are public records regardless of whether they\u2019re part of an investigation, so that isn\u2019t a valid reason to withhold documents.<\/p>\n

I kept trying. There was a potentially valid obstacle to me obtaining some of the records. A state law makes driver\u2019s license records confidential except for certain purposes, including research, to protect people from stalking.<\/p>\n

I had no problem keeping confidential the names of those the secretary of state said appeared to have voted illegally, since her determination was based in part on records subject to this law. I simply wanted to do my own research to verify Duran\u2019s claim.<\/p>\n

So I e-mailed Shearer, asking her to release the Motor Vehicle Division records for research purposes only. I promised not to publish names or other information.<\/p>\n

After receiving a tip that the secretary of state also found some voter registration forms on which the registrants indicated they are not U.S. citizens (non-citizens can\u2019t register to vote or vote), I also requested those.<\/p>\n

Told to go elsewhere<\/h3>\n

<\/p>\n

Shearer replied to my records requests by saying her office was checking with the office of Attorney General Gary King<\/a> on what it could disclose.<\/p>\n

The eventual response<\/a>, which came 15 days later (the maximum time allowed unless the request is deemed \u201coverly burdensome\u201d \u2013 and this one was certainly not), was that the secretary of state wouldn\u2019t hand over any records.<\/p>\n

The secretary of state cited the law keeping MVD records confidential in telling me I couldn\u2019t have those forms. Her office told me to go directly to MVD if I wanted to try to obtain records by claiming the research exemption. But the SOS didn\u2019t forward my request to MVD, as required by the public records act.<\/p>\n

As for the voter forms Duran\u2019s office compared with MVD records, I was told the office \u201cdoes not maintain the original voter registration forms\u201d \u2013 the county clerks have the original forms for 1.6 million registered voters in the state. Again, my request wasn\u2019t forwarded.<\/p>\n

And anyway, I didn\u2019t ask for 1.6 million forms. I asked to view some examples of those the secretary of state compared with MVD records to determine that foreign nationals may have illegally voted. My request was specific to a unique set of documents possessed by the secretary of state.<\/p>\n

The databases of 1.6 million registered voters and 83,000 foreign nationals with driver\u2019s licenses weren\u2019t what I was looking for. I was looking for documents that indicated how the secretary of state determined that foreign nationals had illegally registered to vote and voted so I could determine if there was any validity to her politically charged claim.<\/p>\n

Duran blames AG<\/h3>\n

I sent an e-mail clarifying that I thought my records request would also cover any other documents related to the voter and MVD forms, such as \u201cmemos, e-mails, or reports,\u201d and asked them to release those. I also asked for a list of all documents they were withholding.<\/p>\n

I got a call from Duran herself, who told me she couldn\u2019t give me anything because she was advised by the AG to withhold it all.<\/p>\n

\u201cWe want to be as transparent and open as we can,\u201d Duran told me, but \u201cwith certain advice from our attorney, we\u2019re limited at times.\u201d<\/p>\n

She noted that her office had communicated with the AG via letters. When I asked for those letters she told me she couldn\u2019t release them either, saying it\u2019s \u201call attorney-client privileged information.\u201d<\/p>\n

Hogwash. Duran is the client, and she can release whatever she wants. In addition, she doesn\u2019t have to follow the AG\u2019s advice if she thinks it\u2019s wrong, because it\u2019s just that \u2013 advice.<\/p>\n

Gary King is not the emperor of New Mexico. In fact, he\u2019s not even necessarily an expert on IPRA. A district judge recently ruled that King\u2019s office violated the public records act<\/a>.<\/p>\n

Following my phone conversation with Duran, I sent a follow-up e-mail. One point I wanted to make clear, in writing, was that I didn\u2019t ask for the original voter registration forms possessed by county clerks. I requested the copies Duran\u2019s office reviewed to determine foreign nationals may have voted illegally. Copies of documents, like originals, are subject to IPRA.<\/p>\n

I also noted that her office\u2019s denial didn\u2019t address my request for any related documents such as memos, letters, or reports, and asked for those to be provided or for the office to deny my request as it related to those records.<\/p>\n

The SOS responded by denying all my requests, saying it couldn\u2019t release anything related to the investigation \u2013 driver\u2019s license records, voter registration forms, or related documents \u2013 because all fall under the exemption in the law that keeps driver\u2019s license records private.<\/p>\n

\u201cSince it would be impossible to reveal the names of the individuals designated as foreign nationals who illegally voted, without disclosing the information as it correlates with MVD records, it would be likewise be impossible for us to give you copies of voter registration forms, or refer you to any specific county clerk, without disclosing the same information (i.e. protected personal information),\u201d Duran\u2019s records custodian, Christiana Sanchez, wrote to me.<\/p>\n

She also denied my request for a log of documents they were withholding, saying IPRA \u201cdoes not require us to provide you with one, and therefore we are unable to fulfill this request.\u201d<\/p>\n

\u201cUnable?\u201d I think it would have been more accurate for her to say the office \u201cwon\u2019t\u201d fulfill my request.<\/p>\n

Claiming executive privilege<\/h3>\n

While I was corresponding with Sanchez, I learned from this blog post<\/a> on Clearly New Mexico that Duran\u2019s office had given the ACLU some documents related to the investigation \u2013 copies of e-mails and other correspondence that were heavily redacted. Why wasn\u2019t I given those documents when I requested e-mails and memos related to the situation? Was I being treated differently than the ACLU?<\/p>\n

\u201cWe looked at your request again, and didn\u2019t find your IPRA request to include, with reasonable particularity, this specific request,\u201d Sanchez wrote. She offered to forward me the e-mails her office gave to the ACLU. You can view them here<\/a>.<\/p>\n

The e-mails are so heavily redacted that they\u2019re mostly useless, but there\u2019s one interesting letter in that batch of documents \u2013 a letter from Duran to the AG\u2019s office asking for advice on what the office could release in response to records requests from me and others.<\/p>\n

In fact, it\u2019s the very letter I asked Duran to release when I had her on the phone \u2013 the letter she told me she could not release.<\/p>\n

Why the redactions in the documents provided to the ACLU? Executive privilege, Sanchez told me.<\/p>\n

\u201cRevelation of the information within these emails will compromise the Secretary of State\u2019s decision-making process, and thus outweighs the public\u2019s interest in disclosure,\u201d Sanchez wrote.<\/p>\n

That sounds familiar. During the years Bill Richardson<\/a> was governor, executive privilege was known as the way to keep documents secret when there was no other way to legally do it.<\/p>\n

I made one more request. The letter from Duran to the AG mentions the existence of voter registration forms on which \u201cthe person registering to vote checked \u2018no\u2019 to the question \u2018Are you a citizen?\u2019\u201d Those weren\u2019t compared with MVD records, so the SOS wouldn\u2019t cite the MVD law, I figured. I asked for those forms.<\/p>\n

Again, nothing. Those documents, Sanchez said, were turned over to the Department of Public Safety<\/a> for investigation. The secretary of state apparently no longer has possession of any of those forms. The office conducted a massive investigation into voter fraud and then gave the evidence to DPS without keeping copies. Sanchez told me how to contact DPS to make a request for the records.<\/p>\n

A summary<\/h3>\n

I walked you through this lengthy process to show you how dizzying it\u2019s been. To summarize, here\u2019s what the Secretary of State\u2019s Office said in response to my requests:<\/p>\n