FOG Open Government News

March 5, 2010

Sunshine Portal Becomes Law

State’s financial information will go online in searchable database

It’s official – as of July 2011, New Mexicans will have a new tool for overseeing their state tax dollars.

Lt. Governor Diane Denish signed the Sunshine Portal Transparency Act (SB 195) into law Friday. The Act, which was sponsored by Sen. Sander Rue (R-Albuquerque), provides for the creation and maintenance of an online database with the state’s basic financial information, including up-to-date figures on revenues, expenditures, investments and staffing.

NM-FOG Executive Director Sarah Welsh said the law places New Mexico on the leading edge of the transparency movement nationwide.

“This has enormous potential to increase citizen oversight and involvement,” Welsh said. “It’s particularly exciting in a large state like New Mexico. Just imagine – citizens from Las Cruces to Chama will have useful government information at their fingertips, without the trouble of filing a records request and driving hundreds of miles to view documents.”

Based on the experience of other states, the Legislative Finance Committee estimates that a Sunshine Portal could save money – not only because it cuts down on records requests but because it exposes inefficiencies in state government. New Mexico’s Portal will be built and maintained using existing state resources.

Thanks to a legislative compromise, the Sunshine Portal will initially contain the names, titles and salaries of all exempt state employees (those employees who serve at the pleasure of the governor) but only the titles and salaries of classified state positions. Denish and Rue both said Friday that the Portal will continue to grow and expand in response to improving technologies and user feedback.

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March 2, 2010

NM Supreme Court Adopts Uniform Sealing Rules

Final rules address concerns of FOG, court personnel and other groups

Under new judicial rules adopted Feb. 24, court records throughout New Mexico are presumed to be public and can be sealed only if there is a proven and overriding interest at stake. The new procedures will replace the current patchwork of local court rules.

In adopting the rules, the New Mexico Supreme Court incorporated the suggestions of several public and public-interest groups, including court personnel and the New Mexico Foundation for Open Government. As a result, publicly available court records will continue to hold unique identifying information for criminal defendants and civil litigants, preventing misidentification by court staff or the public.

          “I’m pleased that the new rules contain a strong statement about the fundamentally public nature of court records, and set up a limited and uniform framework for sealing,” NM-FOG Executive Director Sarah Welsh said. “That’s a substantial improvement. And I’m also pleased that the Supreme Court scaled back the extreme privacy provision that was proposed in the draft rules.”

          NM-FOG and the New Mexico Press Association raised serious concerns about three aspects of the proposed rules, which were provided for public comment in late 2009. The draft rules overshot legitimate privacy considerations and would have made it difficult (if not impossible) to determine which John Martinez or Susan Smith committed a particular crime, according to several comments.

Specifically, the draft rules would have required filers and their attorneys to provide only a person’s name, year of birth and in some cases the last four digits of a drivers’ license number.  The proposed rules also contained no ‘waiver’ provision for a person wishing to file his or her own, unredacted personal information. Finally, the proposed rules created a tension with First Amendment rights by threatening sanctions on any person who might disclose sealed information.

          The privacy-related suggestions of NM-FOG, NMPA and others were largely incorporated into the final rules, which apply to all court filings made after July 1, 2010. Once the rules are in place, public court records can contain only the last four digits of a person’s Social Security number, taxpayer ID numbers, financial account numbers and/or driver’s license number, along with the year of birth. Documents with complete, unredacted numbers may be filed under seal to facilitate court proceedings. In magistrate and metro courts, criminal citations will be filed under seal and the court is obligated to provide the substantive information to the public.

          Welsh said NM-FOG will be keeping its ears open for how the new rules affect day-to-day court business, including public access to records.

          “Some other parties raised concerns that expanded privacy requirements could create an extra burden on court staff, who are already struggling with heavy demand for public court files,” Welsh said. “There were also concerns that in practice, the sealing rules may not be applied as narrowly as intended. It’s probably going to take some time for the dust to settle.”

          In all, the New Mexico Supreme Court adopted eight changes to public-inspection and sealing rules last week, affecting civil and criminal procedures in District, Magistrate and Metropolitan Courts, along with procedures in Municipal Courts and the Appeals Court. The final rules are available here.

          The new rules provide the following framework:

·Case records which are deemed confidential by statute, such as parentage and adoption records, will be automatically sealed.

·If a case is not automatically sealed by statute, then its records can be sealed only by a written court order – not by mere agreement of the parties involved. Courts must find that a proven interest outweighs the public’s right to know, that the overriding interest will be harmed if there is no seal, and that sealing is the only way to serve the interest. What constitutes an ‘overriding interest’ will be determined by future case law.

·Sealing orders must be limited to those documents, pages or portions of a record containing the sensitive information. The rest of the file must be publicly available.

·Sealing orders must either specify an expiration date or state explicitly that the order is in effect until rescinded.

·A party in the case or any member of the public can file a motion to unseal a sealed record.

·Criminal citations will be automatically sealed in their original form. Courts must publicly provide the case and citation number; the defendant’s name, address and year of birth; the date and nature of filed charges; the name of the charging officer or department; and the case status.

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Feb. 19, 2010

A Great 30 Days for Transparency

The 2010 legislative session, which ended Thursday at noon, was full of good news for transparency. Here’s the rundown:

PASSED:

·        SB 195: Sunshine Portal. Creates a searchable online database of state financial information, which must go live by July 2011. Will include the names and salaries of state exempt employees.

·        SB 96 and HB 165: Whistleblower Protection Act. When it rains, it pours. The Attorney General’s office has been trying for four years to pass legal protections for state employees who report malfeasance. In 2007, the bill was vetoed. The next year, it died early on in committee. Last year, it passed the House but died in the Senate. This year, two identical bills both passed. If signed, it’s a step forward for the free flow of information between state government and the public.

·        HR 1, HR 2, HR 3: Expanded House Webcasting & Online Votes. These three rule changes added video webcasting of the House floor, audio webcasting of House committees, and the online posting of House votes, respectively. They were all implemented immediately upon adoption.

FAILED:

·        HJM 15: Interim Committee Webcasting. Would have asked the Legislative Council Service to provide audio and video webcasting of interim committees, respectively. It died while waiting to be scheduled on the Senate floor.

·        SR 1, SR 4: Expanded Senate Webcasting. These rule changes would have improved video webcasting of the Senate chamber and added video webcasting of committees, respectively. SR 1 never got a vote on the Senate floor, and SR 4 never made it out of Senate Rules.

·        SRC sub for SB 43 et al, HJC sub for HB 43 et al: Ethics Commission. FOG opposed these bills, which would have created a state ethics commission with secret documents, secret meetings, secret evidentiary hearings and stiff penalties for complainants who disclose any information after filing their complaint. Several proposals were consolidated into identical versions that flew through both chambers’ committees. The House passed its version with opposition from prominent Republicans; the Senate never made it to a floor vote on its bill. Gov. Bill Richardson has expressed interest in taking up the ethics commission again in next week’s special session.

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Feb. 13, 2010

Sunshine Portal Moves On

The House Judiciary Committee just approved Sen. Sander Rue’s Sunshine Portal bill, a measure to put the state’s finances online in an up-to-date, free, searchable website. Kudos to Judiciary Chairman Rep. Al Park, a staunch sunshine advocate, for scheduling this quickly and getting it moving.

Unfortunately, the Committee stripped a Senate floor amendment that included state employee names in the portal. If the new version passes, only titles and salaries would appear. Only Rep. Dennis Kintigh and Rep. James White voted to keep the names in.

In moving to strip the names, House Majority Leader Rep. Ken Martinez said it seemed to be a little invasive and mean to include them. Rue said he felt the same way initially, but had become convinced that this public information is already available, and taxpayers have a right to access it. Martinez then questioned whether it is manageable to maintain an updated list of some 27,000 state employees; Rue said it’s routine personnel data that is kept updated and simply has to be fed into the portal website.

Rep. Elias Barela agreed with Martinez. Barela said he’d understand if the portal listed the names of exempt employees (high-level administrators who serve at the pleasure of the governor) but questioned whether the interest in making state expenditures transparent extends to the names of individual classified employees. It could lead to agency in-fighting, Barela said.

We say YES – the need for transparency most certainly extends to the names of individual employees. And there’s one concrete example of why this is important – the governor’s ongoing refusal to release the names of the 59 exempt employees who were laid off last month. Rumor has it that some of these employees have simply been transferred to other positions in state government – classified positions. If the Sunshine Portal contained employee names, it would be relatively easy to track down this information and prevent future abuses.

On a broader scale, rumors of nepotism and political favoritism in state hiring are always rampant. These rumors unfairly damage the reputation of all state employees, and erode the public trust in state agencies. Removing the names of employees from the portal will make it more difficult to shine a light on the truth of hiring practices. In turn, it makes it easier for nepotism and political hiring to continue.

Finally, the websites of major state agencies – the Human Services, Health and Public Education departments – already post the names, titles and contact information (whether phone, e-mail or both) of their employees. Therefore, posting employees’ names, titles and salaries in a central portal would not compromise their privacy any more than the current status quo does.

The Sunshine Portal is still a major step forward, and FOG supports it even in a weakened state. We’ll work to add employee names before the end of this session or in future sessions.

Now it’s on to House Appropriations and then the House floor. We’ll be watching and hoping . . .

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Feb. 12, 2010

A Win for Sunshine Law

You stonewall, you lose. Even in a budget crisis.

          On Thursday, a Santa Fe judge ruled that despite tight budgets, the state Developmental Disabilities Planning Council must pay court costs, attorney fees and monetary damages because it illegally withheld public information for more than seven months. District Judge Barbara Vigil had ruled in January that the Council violated the New Mexico Inspection of Public Records Act, but she had also accepted the state’s argument that it is too cash-strapped to pay up.

Vigil reversed herself Thursday after hearing arguments from the plaintiff, Robert Richards, and NM-FOG. In addition to Richards’ court costs and attorney fees, she awarded him $20 per day for the entire period of withholding – June 20, 2009 to Feb. 11, 2010.

“At any time, the state could have reevaluated its position and made these documents available,” Vigil said. “I find that the spirit of the (Inspection of Public Records) Act is designed for the free and fair dissemination of information to the public of state business.”

NM-FOG submitted a friend-of-the-court brief through its treasurer Patrick J. Rogers, of the Modrall Sperling law firm. Rogers’ brief argued that because of the clear and mandatory language of the IPRA statute, coupled with clear public policy favoring openness, there can be no exception for agencies facing cutbacks. The law states that “the court shall award damages, costs and reasonable attorneys’ fees to any person whose written request has been denied and is successful in a court action.”

“The Government’s obligation to consider the consequences of its actions and possible non-compliance is upon receipt of the request, not after an unnecessary battle to keep public documents secret,” Rogers’ brief states.

In practical terms, forcing a successful plaintiff to pay his or her own expenses during a lengthy court battle would have a chilling effect on the enforcement of sunshine law, the brief argued. NM-FOG’s brief also argued that a strong and enforceable public-records law serves government fiscal responsibility, in both the short and long term.

“The need to encourage private attorneys general will be ever more critical if the Attorney General and the District Attorneys budgets are cut,” the brief states. “While budgets may indeed be cut or flat for some temporary period of time for some programs for some agencies, open government and the disclosure of the details of the expenditures of public tax dollars would surely generate a more informed debate about how to address the budget issues. In turn, the information and the debate might yield helpful ideas that might improve government.”

NM-FOG Executive Director Sarah Welsh said Vigil’s ruling is encouraging for private citizens who need to go to court to obtain public documents. These cases typically drag on for months, and the promise of reimbursement allows citizens and their attorneys to keep fighting, Welsh said.

“This is an important ruling because it shows that in good times and bad, the law is the law,” Welsh said. “We know that it’s painful for public bodies to pay these fees and damages using taxpayer dollars. That’s why they should follow the law and stop holding public information hostage.”

Richards is seeking the names and direct contact information for members of two public boards: the Developmental Disabilities Planning Council and the Guardianship Advisory Council. The Councils argued that releasing such information would invade board members’ privacy, an argument Judge Vigil rejected. During a January hearing, Vigil said while members are not obligated to give out unlisted numbers or personal e-mail accounts, there should be some way for citizens to contact them directly.

Richards, an attorney, used to work as general counsel for the DDPC. He represented himself in the lawsuit, and he told the court that he plans to donate the award to the Guardian Angels Foundation, a nonprofit organization that advocates for persons in need of guardianship.

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Feb. 10, 2010

The Roundhouse: One Week to Go

Feb. 8, 2010

Democracy in Action

Feb. 5, 2010

Sunshine Portal Passes Senate

Feb. 5, 2010

Tourism Dept. Fixes Error

Feb. 2, 2010

Ethics & Transparency

FOG News Archives

New Mexico Foundation for Open Government
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Email: info@nmfog.org
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