Commentary: Lawmaker’s Proposal Would Chip Away at Public-Records Access

This commentary was submitted by Heath Haussamen, and was originally published at haussamen.com.

Disclosure: State Rep. Sarah Silva, D-Las Cruces, who is mentioned in this column, is my spouse.

Here’s a good way to alienate the people our government is supposed to serve: Call them bothersome, or even malicious, and cut off their access to information about what their government is doing.

That leaves people feeling angry and without recourse for whatever caused them to try to engage their government in the first place. In times that are plagued by misinformation, making it more difficult to access accurate data is a good way to turn even more people into Trump voters.

That’s exactly what legislation sponsored by state Rep. Kathleen Cates, D-Rio Rancho, would do. House Bill 139 proposes a dizzying number of changes to the state’s Inspection of Public Records Act (IPRA) that would place new limits on what information is public and who can access it.

It would impose dramatic new fees for viewing or obtaining copies of government records you already own. It would let a local or state agency refuse to provide public records to people who make too many requests. And it would allow such agencies to seek a formal hearing and recourse when people requesting public records are “vexatious.”

An anti-democratic proposal

“Vexatious litigation” is a legal term. It “starts with malice and without good cause,” according to Cornell Law School’s Legal Information Institute. It is “meant to bother, embarrass, or cause legal expenses to the defendant. A plaintiff who starts such litigation either knows or should reasonably know that no legal basis for the lawsuit exists.”

There is no equivalent to this in the arena of public records, because we all own them and are entitled to see them without having to give a reason. The comparison is balderdash.

Whoever wrote this proposal — Cates was quoted by The Santa Fe New Mexican as saying it came from the attorney who works for Sandoval County, Michael Eshleman — should know better. That he does not makes me question whether he belongs in a government agency that is supposed to serve citizens.

This isn’t just a nutty bill. It’s an anti-democratic proposal that by its very existence harms public trust in government. If it became law it would be a dramatic shift in public policy toward fascism.

Turning librarians into bouncers

All of us “are entitled to the greatest possible information regarding the affairs of government and the official acts of public officers and employees,” IPRA states. That’s because our democracy “is dependent upon an informed electorate.” This is the official policy of the state — to err on the side of giving you information you seek about what your government is doing.

Government agencies produce so many paper documents, audio and video recordings, electronic records and more. With a few exceptions, like specific memos in an employee’s personnel file, IPRA says you have a right to see them, no questions asked.

There’s no charge for inspecting public records. Your tax dollars have already paid for them. Agencies can charge you for the materials that go into making copies of public records, should you want copies — up to $1 per page for printed copies, or the cost of the jump drive or disc if you’re given electronic records.

Cates is proposing to upend all of that. Her bill would effectively shift ownership of records from you to the government by imposing a number of new fees, including allowing an agency to charge you up to $30 per hour for staff time spent researching and redacting records you request (excluding the first hour), and by allowing the agency to refuse to show you public records if you’ve asked too many times or have otherwise been burdensome.

In other words, under current law, agencies’ records custodians are facilitators of your access to information, like a librarian who is there to help you find what you’re seeking. Cates’ bill would remake that position into a bouncer at a club who has the authority to decide whether you even get in.

The most fundamental right

A bouncer appears to be exactly what Cates intends. In her interview with The New Mexican, she was quoted as saying she doesn’t expect the bill to pass but wanted to start a conversation about needed reform.

“IPRA is not broken, but it needs to be managed,” she was quoted as saying.

Managed? Ma’am, being able to access information about your government is the most fundamental right in a representative democracy. If you don’t get to know what your government is doing you can’t effectively exercise your First Amendment rights to speak out in protest or support.

I know so many people — citizens and journalists alike — who have helped root out wrongdoing by asking to inspect government records. IPRA is a tool I’ve used countless times in my journalism career.

It’s not just about exposing misdeeds. The most accurate way to report on what government is doing is by quoting from source documents. Government officials always put the best spin on things; documents tell a more factual story.

‘They belong to the people of New Mexico’

We have a state Commission of Public Records. Its job is to “protect and preserve New Mexico’s public records – records that in turn protect and preserve the rights of its citizens and contribute to an efficient and open State government,” its website states.

Who owns these records? That was the question state Rep. Sarah Silva, D-Las Cruces (and my spouse), asked the head of that state agency, Rick Hendricks, during a budget hearing last week.

“They belong to the people of New Mexico,” Hendricks replied. (Watch the full exchange here.)

This is not ground we can cede in New Mexico, not even a bit. We’re under enough pressure from our federal government to give in to the forces that seek to unravel our democracy. Our state must protect and enhance democracy, not contribute to its erosion.

Longtime New Mexico journalist Heath Haussamen writes political and other commentary and publishes a newsletter you can join by visiting haussamen.com.