{"id":28693,"date":"2011-04-25T09:12:47","date_gmt":"2011-04-25T15:12:47","guid":{"rendered":"http:\/\/www.nmpolitics.net\/index\/?p=28693"},"modified":"2011-11-18T07:01:35","modified_gmt":"2011-11-18T14:01:35","slug":"duran%e2%80%99s-use-of-executive-privilege-differs-from-guv%e2%80%99s","status":"publish","type":"post","link":"https:\/\/nmpolitics.net\/index\/2011\/04\/duran%e2%80%99s-use-of-executive-privilege-differs-from-guv%e2%80%99s\/","title":{"rendered":"Duran\u2019s use of executive privilege differs from guv\u2019s"},"content":{"rendered":"
\"\"<\/a>

Secretary of State Dianna Duran<\/p><\/div>\n

Martinez\u2019s executive order makes her administration\u2019s policy on executive privilege more transparent than the secretary of state\u2019s, open government advocate says<\/h4>\n

Secretary of State Dianna Duran<\/a> is citing executive privilege<\/a> to severely redact e-mails related to her office\u2019s investigation into possible voter fraud before releasing them to the public.<\/p>\n

The redactions appear to stand in stark contrast with an executive order issued by Gov. Susana Martinez<\/a> that details when her administration can and can\u2019t use executive privilege to keep documents secret. The executive order was an attempt to demonstrate when Martinez took office that she wouldn\u2019t use executive privilege as liberally as did her predecessor, Bill Richardson<\/a>.<\/p>\n

To be clear, Duran is not bound by Martinez\u2019s executive order, which applies only to executive branch agencies under Martinez\u2019s direct control. But it\u2019s noteworthy that the recent use of executive privilege by Duran appears to be an action that Martinez wouldn\u2019t allow in her administration.<\/p>\n

In other words, Duran, a Republican, appears to be using executive privilege in a way that\u2019s similar to that of Richardson, a Democrat \u2013 and that her fellow Republican, Martinez, wouldn\u2019t allow in her administration.<\/p>\n

SOS: Release would compromise decision-making process<\/h3>\n

As I wrote last week in a commentary<\/a>, Duran claimed in March that her office had found evidence of foreign nationals registering to vote and in some cases voting, even though doing so is illegal. After a month of trying to obtain documents related to the investigation, I came up with almost nothing.<\/p>\n

Among Duran\u2019s reasons for withholding information was the executive privilege claim, which she used to redact e-mails (see them here<\/a>) related to the investigation between staffers in her office and the Motor Vehicle Department.<\/p>\n

When asked, this was the secretary of state\u2019s reason for citing executive privilege:<\/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<\/p><\/blockquote>\n

The secretary of state cited a 1981 case in which the N.M. Supreme Court recognized the use of executive privilege, but in the context of a separation of powers argument between the executive and judicial branches, not a public records request. The court has never ruled on the use of executive privilege as it relates to the release of documents to the public.<\/p>\n

Last week, Sarah Welsh, executive director of the\u00a0N.M. Foundation for Open Government<\/a>, said it\u2019s concerning any time a government agency claims executive privilege because it\u2019s \u201ca nebulous\u201d claim. She said the secretary of state\u2019s redactions in the e-mails \u201cdon\u2019t seem to fit under FOG\u2019s view of executive privilege.\u201d<\/p>\n

And it was Welsh who pointed out that Duran\u2019s use of executive privilege \u201cstands in contrast to\u201d\u00a0Martinez\u2019s executive order.<\/p>\n

Governor\u2019s executive order<\/h3>\n
\"\"<\/a>

Gov. Susana Martinez<\/p><\/div>\n

The Richardson administration cited executive privilege on more than one occasion to keep documents secret. When she took office, Martinez immediately issued an executive order (read it here<\/a>) that a news release stated \u201censures greater transparency and openness in the process used by the public and the press to access public documents, clarifying that the new administration does not intend to use executive privilege to unjustifiably block the public\u2019s view of the activities of state government.\u201d<\/p>\n

Martinez\u2019s order allows the use of executive privilege only with written permission from her office and if the following conditions are met:<\/p>\n

\u2022 \u201cThe information sought to be held confidential consists of communications between or among the Governor, a Cabinet Secretary, an agency head or any of their high-level advisors.<\/p>\n

\u2022\u00a0\u201cThe advice was rendered in connection to a pending or anticipated decision.\u201d<\/p>\n

\u2022\u00a0\u201cThe Office of the Governor determines that the information sought to be kept confidential does not consist of evidence of potential or actual government misconduct.<\/p>\n

\u2022 \u201cThe Office of the Governor independently is satisfied that these conditions have been met.\u201d<\/p><\/blockquote>\n

Through a spokesman, Martinez refused to answer questions related to the contrast between her executive order and Duran\u2019s use of executive privilege.<\/p>\n

Martinez\u2019s is \u2018a different and more transparent approach\u2019<\/h3>\n

Welsh said Martinez\u2019s executive order appears to be a \u201cdifferent and more transparent approach\u201d than Duran has taken. Welsh\u2019s claim is based on assumptions that Motor Vehicle Division employees are not \u201chigh-level advisors\u201d for anyone in the Secretary of State\u2019s Office, and that the e-mails do not contain only advice for SOS staff.<\/p>\n

\u201cIt seems much more plausible that they simply offer an explanation for, or answer questions about, what is in the various attachments,\u201d Welsh said. \u201cI would be surprised if MVD data folks were offering advice to the SOS on how to conduct and\/or publicize a voter-fraud investigation, either technically or politically.\u201d<\/p>\n

The bottom line, according to Welsh:<\/p>\n

\u201cYou have to ask whether an agency is truly trying to provide the greatest possible information to the public, or is trying to find legal cover for keeping information hidden.\u201d<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

Secretary of State Dianna Duran\u2019s redactions of e-mails related to a voter fraud probe appear to show that she\u2019s using executive privilege in a less transparent way than is allowed in the administration of Gov. Susana Martinez, an open government advocate says. <\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11],"tags":[111,107,225],"class_list":["post-28693","post","type-post","status-publish","format-standard","hentry","category-news-and-analysis","tag-open-government","tag-roundhouse","tag-voter-fraud"],"_links":{"self":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/28693","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/comments?post=28693"}],"version-history":[{"count":0,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/28693\/revisions"}],"wp:attachment":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/media?parent=28693"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/categories?post=28693"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/tags?post=28693"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}