By Kate Nash: The New Mexican
Open-government and press advocates say proposed new exemptions to the state’s public records law have made a good government bill turn bad.
House Bill 507, sponsored by House Majority Leader Ken Martinez, D-Grants, aimed to speed up the response time for getting public records, as well as make clear that e-mail can be used to make a formal request under the act.
But a committee substitute for the measure being pushed by executive agencies under the Richardson administration stripped out the quicker-release-of-records provision from the bill. Meanwhile, the new bill would create new exemptions to the Inspection of Public Records Act — changes that Martinez cannot support and never intended.
Groups who were supporting the bill until a meeting Wednesday of the House Health and Government Affairs Committee now say the proposal is “a disaster for the cause of open and honest government” and “absolutely subverts and reverses the intent” of the original bill.
The committee didn’t act on the substitute bill.
“The bill would almost define `public records’ out of existence,” said Kip Purcell, president of the New Mexico Foundation for Open Government.
“It would permit public bodies to keep records secret ‘by rule,’ it would hide some of the secrecy rules themselves, it would classify nearly all documents pertaining to the ‘regulation or supervision of financial institutions,’ it would single out litigants against the government for unfavorable treatment,” Purcell said in a statement.
“It would permit the withholding of documents on the basis of such nebulous and infinitely subjective standards as ‘clearly unwarranted invasions of personal privacy’ and ‘frustration of a legitimate government function, and it would arguably make confidential all government-generated documents that are not otherwise ‘available by law.”’
Martinez said several executive agencies sought the exemptions, although he wasn’t sure which ones.
When asked if Gov. Bill Richardson is supporting the exemptions, spokesman Gilbert Gallegos said the governor often doesn’t comment on pending legislation.
And Gallegos said the agencies seeking the exemptions didn’t consult with the Governor’s Office about them.
The exemptions include “records of a public body, that, by their nature, must be confidential in order for the public body to avoid the frustration or a legitimate government function.”
Also exempted would be “records contained in or related to examination, operating or condition reports prepared by, on behalf of or for the use of a public body responsible for the regulation or supervision of financial institutions.”
Another proposed change in the bill says that nothing in the records act “shall be construed to require a public body to provide records pursuant to that act to a party with whom it is in litigation.”
Martinez said that’s not what he had in mind.
“I didn’t want it to be a bill about exemptions,” he said. “This bill wasn’t about all that.”
Lt. Gov. Diane Denish, who earlier in the session held a news conference to endorse the original bill, among other measures, said the changes “cripple” it.
“I do not support the committee substitute and stand completely behind House Majority Leader Ken Martinez. We want the bill to be effective in bringing more transparency and better responsiveness,” she said in a statement. “The exemptions in the amendments cripple the bill. The sponsor is trying to maintain the integrity and spirit of HB 507, and we both hope to see that restored.”
Among other things, Martinez’s measure aimed to speed up the response time for agencies to produce records under the records act.
Currently, agencies have three days to respond to a request for records and 15 days to produce the information unless they need more time. The original bill would give an agency 10 days to produce records.
That provision was stripped out.
The bill still would make clear that an e-mail is recognized as an official request for records under the act, after a handful of state agencies in the past have refused to recognize e-mails as written request.
Martinez said he’ll work to restore the bill to its original form.
Dana Bowley, executive director of the New Mexico Press Association called the measure as it stands “awful legislation.”
“The new exemptions range from nonsensical to being so broad they could include almost any public record. And some of them are legally questionable. For instance, the provision allowing public bodies to deny public records to someone with whom they are in litigation is a costly, losing lawsuit waiting to happen to the first public body that tries it,” he said in a statement.
“Public records are public records; you can’t pick and choose what members of the public you’ll give them to.”
The bill as drafted would also allow an agency that plans to deny the records request to seek an attorney general opinion on whether the denial is consistent with the records act. The AG would have to respond within five days, but the change also says that any time limits for releasing the records “shall be tolled until the public records custodian receives an opinion from the attorney general.”
Attorney General spokesman Phil Sisneros said the office is opposed to the bill.
The New Mexican and Freedom New Mexico are members of both the New Mexico Press Association and the Foundation for Open Government.