Lawmakers antsy about open records

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By Hal Rhodes

When is a member of the state Legislature not a member of the state Legislature?
Have we a nonsense question here?
Perhaps, but it’s a conundrum with which the Legislature grappled late in the recent session, as it crafted a resolution defining which emails dispatched or received by a legislator should be subject to provisions of the state’s Inspection of Public Records Act (IPRA).
Enacted in 1994, IPRA is a variation on the federal Freedom of Information Act, one of many such laws throughout the country designed to foster transparency and openness in the conduct of governmental affairs by permitting citizens access to public records.
Such laws have been pains in the butts for many elected officials who would rather not have their every action subject to public scrutiny.
Sarah Palin ran afoul of Alaska open records act while governor of that state when she used her private email to conduct “sensitive” public business and got slapped by her state’s Supreme Court for circumventing the law.
New Mexico’s Gov. Susana Martinez experienced similar grief after it was discovered that her administration was skirting the state’s IPRA by using private emails, whereupon the she announced that henceforth her staffers would conduct the public’s business via government email accounts.
So it was inevitable, given the flood of email to and from them, that the New Mexico lawmakers would wade into the quandary of when, at least for purposes of emailing, its members are acting in their “public” capacity (as in “for the public record”) and when they are acting as “private” individuals.
The result resembled a bipartisan comedy orchestrated by the Keystone Cops.
It came to a head on the final Sunday before adjournment when the House abruptly passed and sent to the Senate a concurrent resolution stipulating that individual state lawmakers’ emails are private, exempt from public scrutiny, inasmuch as legislators “exercise authority collectively and not through the actions of individual members.”
The measures passed out of the House on a hefty 46-16 vote.
Think upon it: A substantial majority of New Mexico’s state representatives want us to believe that their emails and other communications are only subject to the provisions of the 1994 Inspection of Public Records Act if those communiqués relate to actions they have been taken collectively, either in committee or in the deliberations of the full House.
Under this interpretation of a member of the state Legislature we are asked to believe that member isn’t a member except in the context of the collective whole.
It’s utter nonsense.
Legislatures, New Mexico’s included, are run by leaders and factions composed of individual lawmakers who wheel and deal, logroll, negotiate, trade favors, scratch backs, maneuver and engage in untold machinations on behalf of something they hope to get accomplished (or prevent from being accomplished) in the course of a legislative session.
And if all these often out-of-sight maneuverings and arm twistings produce their intended purposes those individual lawmakers will briefly coalesce into a majority capable of sending something to a governor for her or his signature into law.
Unfortunately the Senate joined the House in passing that concurrent resolution before adjournment.