{"id":30148,"date":"2011-06-22T08:15:36","date_gmt":"2011-06-22T14:15:36","guid":{"rendered":"http:\/\/www.nmpolitics.net\/index\/?p=30148"},"modified":"2011-11-18T07:01:29","modified_gmt":"2011-11-18T14:01:29","slug":"in-voter-fraud-case-officials-err-on-the-side-of-secrecy","status":"publish","type":"post","link":"https:\/\/nmpolitics.net\/index\/2011\/06\/in-voter-fraud-case-officials-err-on-the-side-of-secrecy\/","title":{"rendered":"In voter fraud case, officials err on the side of secrecy"},"content":{"rendered":"
\"\"<\/a>

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

My efforts to obtain the evidence behind Secretary of State Dianna Duran\u2019s claim that she has found instances of foreign nationals illegally voting have been shot down again, this time by the Taxation and Revenue Department<\/h4>\n

Two months ago I asserted that Secretary of State\u00a0Dianna Duran\u00a0failed the open government test<\/a> because she put a number of hurdles \u2013 some of them illegal \u2013 in front of my efforts to obtain the \u201cevidence\u201d she claims to have found of foreign nationals illegally voting in elections.<\/p>\n

Since then, I tried a backdoor route to obtain some of the information, filing a public records request with the state\u2019s Taxation and Revenue Department (TRD) for e-mail correspondence between its Motor Vehicle Division and Duran\u2019s office, and all documents attached to those e-mails.<\/p>\n

The attachments are at the heart of Duran\u2019s claim. Using those spreadsheets and other documents from TRD, she says she compared voter registration forms with MVD\u2019s foreign national database to come up with her assertion that at least 117 foreign nationals had registered to vote and that 37 of them had voted in New Mexico elections.<\/p>\n

The good news? The administration of Gov. Susana Martinez, through TRD, rejected Duran\u2019s claim that executive privilege allowed her to withhold some information I and others requested.<\/p>\n

The bad news? Tax and Revenue found its own justification for refusing to release information. And it\u2019s a justification the N.M. Foundation for Open Government<\/a> says is questionable.<\/p>\n

Rejecting the use of executive privilege<\/h3>\n

Here\u2019s how the situation has played out:<\/p>\n

As part of my attempt to get information from Duran\u2019s office, I requested and was given copies of e-mails the ACLU also obtained relating to the situation. The e-mails were so heavily redacted<\/a> that they\u2019re mostly useless.<\/p>\n

Duran claimed executive privilege in redacting the e-mails. \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 a staffer wrote to me.<\/p>\n

FOG\u2019s executive director, Sarah Welsh, said at the time that the redactions \u201cdon\u2019t seem to fit under FOG\u2019s view of executive privilege.\u201d And as I later pointed out<\/a>, Duran\u2019s use of executive privilege wouldn\u2019t be allowed under an executive order issued by Martinez, a fellow Republican, if Martinez\u2019s executive orders applied to the Secretary of State\u2019s Office. (They don\u2019t.)<\/p>\n

So I decided to try to go around Duran. I requested from Martinez\u2019s administration the same e-mails Duran had provided with extreme redactions, and the attached files that Duran refused to provide.<\/p>\n

In responding to my request in late May, TRD rejected Duran\u2019s use of executive privilege.<\/p>\n

\u201cWe should be clear it is our understanding that these same emails were requested from the Secretary of State and they chose to assert executive privilege,\u201d Patricia A. Silva, TRD\u2019s records custodian, wrote in the letter<\/a> to me. \u201cThe Department does not feel executive privilege can be asserted, or would appropriately apply over these e-mails.\u201d<\/p>\n

Of course, that came after I pointed out that Duran\u2019s use of executive privilege wouldn\u2019t be allowed in the Martinez administration.<\/p>\n

Citing the law enforcement exemption<\/h3>\n

The problem, as you can see from the copies of the e-mails TRD did provide to me (click here<\/a>), is that they found another reason to withhold any useful information, and still redacted much of the content of the e-mails.<\/p>\n

State law allows agencies to withhold \u201claw enforcement records that reveal confidential sources, methods, information or individuals accused but not charged with a crime.\u201d State police are investigating Duran\u2019s claim, and Silva wrote that TRD was redacting portions of e-mails that \u201cwe believe fall under the law enforcement records exemption.\u201d<\/p>\n

Silva wrote that TRD would also not turn over the attachments because of the law enforcement exemption.<\/p>\n

Welsh questioned TRD\u2019s claim that the law enforcement exemption applies in this instance.<\/p>\n

\u201cThey cite the law enforcement exception, which has two prongs. I think it\u2019s a stretch to say that it meets the first test, which is that it\u2019s evidence in a law enforcement investigation,\u201d Welsh said. \u201cAnd I think the second test, that it would reveal confidential sources, methods, or information, is a real stretch.\u201d<\/p>\n

\u201cThey need to flesh that out and really explain how that\u2019s confidential police information,\u201d Welsh told me.<\/p>\n

I asked Silva to do that on May 31. She replied that she was forwarding my request to Nelson Goodin, the office\u2019s chief counsel and a former prosecutor in the district attorney\u2019s office Martinez used to run. More than three weeks later, and despite a second attempt by me to get a response, I have yet to hear from Goodin.<\/p>\n

Interestingly, Silva\u2019s letter reveals some disagreement on use of the law enforcement exemption.<\/p>\n

\u201cIt is our understanding that the Secretary of State\u2019s Office did not assert the law enforcement exception because it had received advice from the Attorney General\u2019s Office that the exception was not available to it because it is not a law enforcement agency,\u201d she wrote. \u201cHowever, the Deputy Attorney General has confirmed that the availability of this exception is based upon the nature and content of the documents rather than the identity of the agency holding them.\u201d<\/p>\n

Sounds like there\u2019s some disagreement on that point even within the AG\u2019s office.<\/p>\n

Keeping the public in the dark<\/h3>\n

So, months after Duran first made her headline-grabbing claim<\/a> that she had uncovered evidence of voter fraud, I\u2019m still no closer to being able to tell you whether her claim is valid. As others have reported, the state police are looking at 64,000 voter cases<\/a> to determine if any involved fraud. We still have no idea whether there might actually be fraud or if, as Democrats assert, this is a waste of taxpayer money and a political witch-hunt<\/a>.<\/p>\n

As the Las Cruces Sun-News reported Sunday<\/a>, \u201cDemocrats on a legislative committee made Secretary of State Dianna Duran the butt of jokes and criticism Friday, saying she had mishandled an investigation into voter fraud.\u201d Sen. Cisco McSorley, D-Albuquerque, was quoted as saying he couldn\u2019t \u201cremember one documented case of voter fraud.\u201d<\/p>\n

The state GOP was quick to fire out a news release detailing two cases in the last 20 years. The most recent<\/a> occurred in Sunland Park and was prosecuted by the office of then-District Attorney Susana Martinez.<\/p>\n

The bottom line is that voter fraud has occurred in New Mexico, but no evidence of a widespread problem has ever been presented publicly. Duran now claims to have found evidence, but she and the Martinez administration are making sure the public doesn\u2019t see it.<\/p>\n

Why?<\/h3>\n

Martinez and I have disagreed in the past<\/a> about whether certain law enforcement records are public. Even if I think it\u2019s wrong, it doesn\u2019t surprise me that a former district attorney\u2019s administration would interpret the law in the least transparent way possible when a criminal investigation is the issue.<\/p>\n

But it\u2019s still a problem. Welsh said Duran and TRD seem to be \u201clooking for every reason under the sun\u201d to withhold information. In other words, they\u2019re erring on the side of secrecy rather than transparency, and in Duran\u2019s case, the problem is so extreme that I identified violations of the Inspection of Public Records Act.<\/p>\n

\u201cThere are certainly ways for them to release that information if they wanted to,\u201d Welsh said.<\/p>\n

She\u2019s right. Duran failed the open government test. Tax and Revenue is heading down a slippery slope, and its failure to elaborate on why the records I requested can be withheld from the public fails the smell test.<\/p>\n

Their erring on the side of secrecy begs the question: Why? Democrats think they have the answer. Are they right?<\/p>\n

Haussamen bio<\/a> \u2502\u00a0Commentary page<\/a> \u2502\u00a0Feed<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

My efforts to obtain the evidence behind Secretary of State Dianna Duran\u2019s claim that she has found instances of foreign nationals illegally voting have been shot down again, this time by the Taxation and Revenue Department.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1192,10],"tags":[142,111,107,225],"class_list":["post-30148","post","type-post","status-publish","format-standard","hentry","category-commentary","category-haussamen-columns","tag-crime","tag-open-government","tag-roundhouse","tag-voter-fraud"],"_links":{"self":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/30148","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=30148"}],"version-history":[{"count":0,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/30148\/revisions"}],"wp:attachment":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/media?parent=30148"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/categories?post=30148"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/tags?post=30148"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}