Newly inaugurated Governor Susana Martinez got off to a great start Saturday when she knocked down two of the secrecy barriers erected by the previous administration. The executive orders are posted in their entirety on Kate Nash’s Green Chile Chatter blog.
These directives signal a sea change on the fourth floor of the Roundhouse. During the last eight years, news reporters and other watchdogs had become accustomed to a broad, sweeping secrecy around internal policy discussions and communications within state government. The secrecy extended far down into the bureaucracy, potentially concealing any communications or discussions related to policymaking, however tangentially. (Under what right, you ask? The Center for American Progress has a good primer on executive privilege.)
Martinez’s order #3 limits the interpretation of “executive privilege” so that only documents with high-level advice rendered in connection to a pending or anticipated decision will be withheld from the public. The privilege can only be invoked with written authorization from the Governor’s Office, and it will not be invoked if the documents in question contain evidence of potential or actual government misconduct.
Whew. This is arguably what the law requires (the U.S. Supreme Court held that the executive privilege is not absolute in a case involving the Nixon tapes, and the New Mexico Supreme Court is weighing the issue in Republican Party v. Taxation & Revenue) but there’s always a gap between what the law requires and what government agencies will do readily and willingly. It sure would be nice to get important government information by walking in the front door and asking for it – without the need to wage a court battle.
Martinez’s order #2 requires state agencies and employees to cooperate with federal investigators who are digging around state government. State agencies are prohibited from sitting on their hands waiting for a subpoena, and they cannot invoke executive privilege unless authorized to do so by the Governor’s Office. Again – this seems like common sense unless you’ve been engaged in pitched battle with state feet-draggers for the last several years.
FOG applauds our new governor for taking immediate action to clamp down on some of the worst secrecy abuses of the previous administration. The bar had sunk pretty low – at this point, complying with the straightforward letter of sunshine laws would be a big step forward. But these orders go beyond that. They seem to signal a willingness to be proactively and cooperatively open. We hope they are a taste of things to come, and we hope that agency heads and government counsel take a fresh look at the principle enshrined in state law and these orders – “the citizens of New Mexico are entitled to the greatest possible information regarding the affairs of government and the official acts of public officers and employees.”