SANTA FE — It may be Sunshine Week — a nationwide initiative focused on the importance of access to public documents and information — but New Mexico lawmakers are halfway toward adopting a resolution creating an exception for legislative emails.
“For me, email is no different than a telephone conversation I have with another person,” Rep. Don Bratton, R-Hobbs, said. “They’re personal. This is a constitutional issue and right to privacy … (people asking to see emails on the legislative account) have no right to that.”
Open government advocates say the state’s Inspection of Public Records Act mandates that, with specific exceptions, any records that deal with public business and are held by — or are for — the government should be open to the people.
The House on Sunday voted 48-16 to pass House Concurrent Resolution 1, which proposes limits for releasing emails and other records.
The New Mexico Foundation for Open Government opposes HCR1, saying it’s “a vaguely-worded measure” that would “pull a curtain of secrecy over important decisions that affect all New Mexicans.”
“If it has to do with public business and it’s a message that was held by on behalf of a government entity, a public official, then it’s subject to open records law,” Gwyneth Doland of NMFOG told New Mexico Watchdog.
But some Democrats and Republicans have brushed off the complaints, sometimes in defiant tones.
“As a citizen legislator, it’s up to me to decide if it’s a public record or not,” said Rep. Eliseo Lee Alcon, D-Milan, said in a committee meeting on Friday. “It’s up to the person seeking that record to prove that to me … I don’t care what they do … I think it’s up to me to decide if you can have my record.”
Bratton said it would take a court order for him to hand over emails used on his legislative account.
During debate in the House on Sunday, eight Democrats and eight Republicans were the only holdouts to vote against the resolution. Six members were absent.
“It’s a mistake if we go down a path where we start putting up black curtains so the public can’t see what we’re doing,” said Rep. Jeff Steinborn, D-Las Cruces.
The bill’s sponsors, Bratton and Speaker of the House W. Ken Martinez, D-Grants, say the Legislature deserves an exemption from the public records act; the governor and the state judiciary don’t have such an exemption.
“Is the legislature different from other governments? The answer is yes,” Martinez said during debate.
Martinez and Bratton base that argument on the Privileges and Immunities described in the New Mexico state constitution:
“Members of the legislature shall, in all cases except treason, felony and breach of the peace, be privileged from arrest during their attendance at the sessions of their respective houses, and on going to and returning from the same. And they shall not be questioned in any other place for any speech or debate or for any vote cast in either house.”
Critics say that’s an overly broad interpretation as it relates to public records and emails.
“I guess, ultimately, the courts will rule whether I’m correct or not,” Bratton said.
The resolution moves to the Senate Rules Committee and, if it passes, to the Senate. Approval from two-thirds of the 42-member chamber — 28 votes — would be needed for passage.
Since HCR1 is not a bill and deals with legislative rules, it would not go to the governor’s office for a possible veto.
Often used by journalists, the general public and political advocates, public records requests are used to obtain information about state governance.
Under HCR1, inspection requests for the House and Senate would go through the Legislative Council Service, the nonpartisan agency that helps lawmakers draft legislation and offers research and legal staff.
“I don’t think it’s an end run,” Martinez said to New Mexico Watchdog.
In the past year, liberal groups and a number of Democrats in the Legislature have criticized Republican Gov. Susana Martinez and her administration for using private e-mail accounts — rather than their state accounts — to conduct government business
As a result, the governor ordered all employees under her authority to use state accounts for all state business.
“The legislature has consistently required transparency of the executive branch and should do no less for itself,” Doland said in a statement.
Rob Nikolewski is a reporter for New Mexico Watchdog.org.
