Anson Stevens-Bollen
The Santa Fe Reporter 's four-year legal battle for free press rights and open government ended—for now, at least—when a state District Court judge last week handed down three public records victories but delivered a major blow to the paper's claim of discrimination by Gov. Susana Martinez.
Judge Sarah Singleton ruled on Wednesday Dec. 13 that Martinez did not violate the paper's rights under the state Constitution by freezing out its reporters in retaliation for their coverage of her administration's secrecy, as SFR alleged. It was a rare push for press access and equality in treatment by government officials through the courts—and SFR Editor and Publisher Julie Ann Grimm says, fundamentally, she disagrees with how Singleton came down.
"Really, what the judge is saying is that it's OK for elected officials to choose who they will talk to and about what," Grimm says.
A three-day bench trial in March revealed in detail the administration's negative attitude toward the paper—and the press. The fight is familiar nationally, as President Donald Trump goes to war with news organizations that scrutinize him.
David Snyder, executive director of the California-based First Amendment Coalition, says the issue raised in SFR 's case has greater significance today than even just a year ago.
"From Washington on down, we've seen a growing sense among elected officials that they're entitled to exclude particular journalists or publications because they don't like the way those journalists or publications go about their business," he says.
Snyder says major changes are happening to the way the government and the media interact, and there's a dearth of law on the issue. Though this case happened in a New Mexico District Court and doesn't create law or set precedent elsewhere in the state or country, if the case is appealed, Snyder says, it could have a wider impact down the line.
The newspaper has not decided whether it will appeal. Both sides have until Dec. 28 to make the call.
Lawyer Daniel Yohalem, who represented the Reporter, says in today's political environment, the ruling could also encourage more secrecy in state and local government. "It's just that it's a missed opportunity for the press to have gained additional protection," he says.
The newspaper had some victories, too: Singleton ruled that the Governor's Office broke the state's open records law—which is used by the press and other state residents alike—three times. In a canned statement, Martinez admitted to "minor infractions."
Grimm disagrees.
"I think that's a major victory for open government in New Mexico," she says, "and not just for newspapers but for everyone who is seeking information about what the government does in our name."
The newspaper's lawsuit stemmed from investigative reporting years ago into top officials' use of private email accounts to do the public's business, which SFR reported was part of a culture of secrecy and less-than-transparent dealings inside the Martinez administration.
Singleton affirmed that those emails are public record and ordered the Governor's Office to search for emails dating back to 2011 and 2012 for Martinez and her chief of staff, Keith Gardner.
Peter St. Cyr, executive director of the New Mexico Foundation for Open Government, also says that's a significant victory for the New Mexico Inspection of Public Records Act. "We hope that going forward that the best practice will be for no public officials to use private emails to communicate any public policy issues," he says.
In the end, Singleton found that the Martinez administration illegally withheld records about pardons the governor had granted to people with criminal convictions and broke the law in delaying the release of her calendar. SFR's lawsuit also charged that the Governor's Office doesn't have a solid method for responding to public records requests. Despite testimony from Martinez' former records custodian that she relied on an honor system when asking administration officials for email records, Singleton found that was good enough.
"There are real issues with allowing people to self-report their emails or provide them on their own," St. Cyr says. "We need to transform the culture in government so that there's this understanding of the wonderful value and benefit of being transparent in your operation."
He says he hopes the case will serve as a warning shot for other agencies in New Mexico when public records requests come in. "But we have had other IPRA victories, and we still have stubborn-headed bureaucrats digging in their heels and avoiding as much scrutiny as they can," St. Cyr says.
The Reporter was awarded to-be-determined attorney's fees associated with the governor's IPRA violations, but no damages. The law says there can be fines up to $100 a day for agencies that violate IPRA, but some judges have required plaintiffs to prove they lost money because of the violation.
"It might be time for the Legislature to change the law to make those kind of fines mandatory," St. Cyr says. "We believe that could motivate people to comply with the law more readily."
Taxpayers were still on the hook for big bucks in the case, though. The governor hired Paul Kennedy, a well-connected Albuquerque-based attorney on contract to fight the Reporter 's claims. Those contracts say Kennedy could bill the state up to at least $1.1 million, but the administration has refused to turn over records showing exactly how much he has been paid.
Another lawsuit is pending to unearth Kennedy's billing records in the SFR case and other legal fights he has waged on Martinez' behalf. Neither Kennedy nor the governor's Press Secretary Emilee Cantrell agreed to be interviewed for this story. Cantrell emailed a statement, saying the Reporter's claims were overreaching, and that the court firmly rejected them.
Grimm points out that at the end of the day, it falls on the person who requests public records—but doesn't get them—to hold the government accountable. These types of lawsuits aren't all that frequent in New Mexico, and rarely does a constituent, business or media organization have the time and resources to take a case all the way to trial.
"No newspaper wants to end up in court," Grimm says. "What we want are the public documents, so we can use them to tell stories about our community to our community."
