While in session, state legislators communicate and create records as they make phone calls, draft emails, send text messages, take notes and give speeches. But a resolution this week may limit the public's access to lawmakers' communications.
Two days before the start of national Sunshine Week, Democrats and Republicans in the New Mexico Legislature teamed up to send an important message. It would have been the perfect time to issue a proclamation recognizing "the importance of open government and freedom of information," Sunshine Week's key values.
Instead, they did the opposite.
On Friday, March 8, members of the House Rules & Order of Business Committee voted unanimously to expand privacy protections for state lawmakers. That Sunday, the measure—House Concurrent Resolution 1, sponsored by House Minority Leader Don Bratton, R-Lea, and House Speaker Ken Martinez, D-Cibola—cleared the two-thirds vote needed for any resolution that applies to both the House and the Senate.
On the surface, HCR 1 seems innocuous. It's a rule change, not a law, and it simply clarifies how the Legislature should handle public-records requests.
But it also takes a significant step in exempting state legislators from New Mexico's Inspection of Public Records Act—and that's what has open-government advocates up in arms.
The implications are broad. If enacted, HCR 1 could bar constituents from learning how and why elected officials make key governing decisions. It could also limit government watchdogs' ability to uncover unethical behavior.
On March 9, the New Mexico Foundation for Open Government issued a statement strongly opposing HCR 1, "which would pull a curtain of secrecy over important decisions that affect New Mexicans." Even so, the following day, the House approved it, with only 16 out of 70 representatives (from both parties) voting against it.
HCR 1 hinges on two arguments. First, it claims that while the Legislature itself is a public body subject to public-records requests, individual lawmakers can't act on its behalf—and hence, aren't subject to IPRA in the same way. Second, it cites a "privileges and immunities" section of New Mexico's Constitution, which mirrors a similar section in the US Constitution. Within that section is a Speech or Debate Clause, which grants lawmakers immunity for things they say and votes they cast during formal legislative proceedings.
"Things that legislators say cannot be used as evidence in lawsuits against them," explains Peter Simonson, executive director of the American Civil Liberties Union of New Mexico. But he says the state Constitution doesn't "protect secrecy on matters of public concern."
HCR 1 would change that, expanding state lawmakers' "privileges and immunities"—which include freedom from most kinds of arrests while engaged in legislative work—to any "information, regardless of form or characteristics, possessed by a legislator, or a legislative aide or employee."
It's not clear what exactly would be exempted from IPRA under the resolution. But state lawmakers' comments offer some clues about their intentions—as do observers' criticisms.
Last week, Bratton told SFR he believes open-government laws "are different for the legislative branch than they are for the executive or the judiciary." He also told the House committee that he thought all emails to and from state lawmakers—with "limited exceptions"—should be exempt from IPRA.
Bratton says he wants to protect the privacy of his constituents, who sometimes email him sensitive information.
"Our ability to get the information we need requires that those communications be handled in a confidential manner," he says. If constituents "don't feel that they can openly communicate" with legislators, Bratton wonders, will they "stop communicating—and will you have less-responsive government?" (IPRA, however, already provides exemptions for several types of sensitive information, such as "trade secrets" and certain medical records.) He also cites the political use of IPRA.
"Transparency is one thing," he says, "but when you go on fishing expeditions—and more often than not there is a political agenda—does that serve the best interest of the people?"
At last week's committee meeting, Bratton went so far as to issue a sort of challenge: "The first time I get a request for my emails, it's probably going to court, because I won't release them." SFR has filed public-records requests for one day's worth of both Bratton's and Martinez' emails.
To be sure, HCR 1 does bring some needed clarification to how the Legislature handles public-records requests, which are currently processed on a case-by-case basis. It names the Legislative Council Service, which assists lawmakers with everything from drafting bills to general housekeeping, as the Legislature's records custodian and requires all other legislative staff and divisions to "cooperate" with LCS "to ensure that requests under [IPRA] are fulfilled in compliance with that act."
But to open-government advocates, the ends don't justify the means.
"We appreciate the need for constituents to communicate confidentially with their legislators, and we fully understand that citizen legislators only work part-time and have other careers," writes Meredith Machen, vice president of the League of Women Voters of New Mexico, in a statement emailed to SFR. But, she adds, "It is unethical if not illegal to restrict public business from public scrutiny."
As HCR 1 moved through the Roundhouse, both the state Attorney General's Office and NMFOG released their own analyses. NMFOG argues that exempting lawmakers from IPRA "is to place legislators above the law."
"If the clause frees them from their duties under IPRA, then it also permits them to accept bribes in exchange for their votes, run over pedestrians on their way to committee meetings, and sexually harass their subordinates and constituents," NMFOG's analysis, written by board member Kip Purcell, reads. "…[N]either New Mexico's version of the Speech or Debate Clause, nor any of the penumbras [or implied rights] emanating from it, give rise to the 'right to privacy' that the Legislature is scrambling to cobble together."
Yet HCR 1 looks poised to become official. As of press time, it was slated for the Senate Rules Committee, likely its last stop before the Senate floor.
And support for the resolution—at least among state legislators—seems broad. During Friday's committee meeting, for instance, state Rep. Moe Maestas, D-Bernalillo, called the resolution "exceptionally transparent" and "sound public policy."
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