Blalock

Brian Blalock, Cabinet secretary of the New Mexico Children, Youth and Families Department, at his office in Santa Fe last year.

The state Children, Youth and Families Department has fired two high-level employees who raised concerns about the agency’s practice of encrypting and summarily destroying records.

A Searchlight New Mexico investigation found that over the past year, CYFD used the secure text messaging app Signal to discuss a wide range of official business, including the state’s response to the coronavirus pandemic, the care of children in state custody and concerns about private contractors. Department leadership then set many of those communications to automatically delete, rendering them forever inaccessible to attorneys, members of the public and journalists.

The Governor’s Office and state Department of Information Technology supported the systematic deletion of messages, according to emails and policy guidance obtained through a public records request.

CYFD’s use of Signal is currently under investigation by the office of state Attorney General Hector Balderas, following an earlier report detailing the agency’s routine deletion of encrypted messages. House Republicans also asked Gov. Michelle Lujan Grisham to provide a report detailing “whether her office staff and/or cabinet level staff have been using data encryption and data dumping.”

CYFD officials asserted they relied on Signal primarily for “transitory communications” — what agency Secretary Brian Blalock described as employee banter, routine check-ins between workers and other insignificant exchanges not subject to public records laws.

“I don’t think there’s a legal responsibility to keep that information under the New Mexico Public Records Act’s rules and laws,” he said in April, adding CYFD began using Signal as part of a security upgrade.

In an internal CYFD Signal message, records custodian Kathleen Hardy advised that “practically everything we do [on Signal] qualifies under the retention policies as a non-record, and is therefore not subject to the retention policies.” That message — a public record itself, one lawyer said — was set to auto-delete after 24 hours.

The Governor’s Office offered similar advice to Lujan Grisham’s staff. “Every single text message that you send or receive likely qualifies as a ‘transitory record,’ ” the official guidance counsels. “We recommend that you delete all text messages which are ‘transitory records’ every ten days. You may delete them more often if you wish.”

In a statement, press secretary Nora Meyers Sackett said the office recently conducted a refresher for staff on what counts as transitory, and the governor takes transparency and open government “very seriously.”

The New Mexico Department of Information Technology also has encouraged CYFD’s use of the app, citing the security benefits of Signal’s encryption. In one email circulated by Lujan Grisham’s office, chief counsel Olga Serafimova asserted that “the practice of deleting messages automatically does not violate IPRA,” and “use of the Signal app for transitory messages is not a violation of the Public Records Act.”

Cliff W. Gilmore, who served as CYFD’s chief public information officer, repeatedly raised concerns within the agency over the department’s Signal use. On April 22, he sent a memo to senior CYFD leadership stating the practice was “detrimental to the credibility of and the public’s trust in government institutions and their leaders.” He advised the agency immediately halt its use of the app.

He was fired May 6.

Immediately following his firing, Gilmore informed Balderas that he had not received any guidance on the legal requirements for retaining Signal messages and that he and other employees were instructed to set their Signal messages to delete automatically.

“At one point Secretary Blalock told a group of roughly 30 of us staff members at a ‘leadership’ meeting that people who regularly submit IPRA requests would eventually find out we were using Signal and that, because when an IPRA request came in we would have to retain everything from that moment, we should set our Signal apps to 24-hour auto-delete,” Gilmore wrote in an email May 18.

Gilmore’s wife, Debra Gilmore, who was hired in late 2020 to lead CYFD’s newly formed Office of Children’s Rights, confirmed she, too, had raised internal concerns about Signal. She also was fired May 6.

Cliff and Debra Gilmore declined to comment further about their termination.

CYFD spokesman Charlie Moore-Pabst said the department could not comment on the firing, citing a policy prohibiting the discussion of personnel issues. Other employees have also raised internal concerns about CYFD’s routine deletion of communications. In August, a complaint filed with the attorney general alleged the department was directing staff to communicate using the messaging platform Slack and then systematically erasing conversations on the app.

In response, Assistant Attorney General John Kreienkamp determined CYFD appeared to be doing so in order to “reduce the number of communications retained by the Department subject to disclosure as public records.” But he did not investigate further.

Attorneys familiar with CYFD described the deletion of Signal messages as part of a “decadeslong history of secrecy.” Employee communications, even if not subject to public records requests, nonetheless play a vital role in the work of court-appointed guardians.

“Kids aren’t safe if we don’t have all the information,” said Sara Crecca, an attorney who represents youth in foster care.

“This is an agency with a history of covering up abuses. And they’re deleting information on top of that? It’s not Blalock’s job to determine what’s transitory. That material should be preserved.”

The practice has also raised alarms among attorneys who focus on government transparency.

“The governor’s policy guidance recommending the prompt, automatic and routine deletion of all government text messages and voicemail messages is clear evidence of a contemptuous attitude toward principles of transparency,” said Charles Peifer, an Albuquerque-based attorney who formerly served as New Mexico’s chief assistant attorney general. “It would be naive for the public to believe that, having established a ‘secret channel’ for communication, government officials can be trusted not to say anything of importance over it.”

From June until April, CYFD used Signal to coordinate its response to the pandemic with the New Mexico Human Services Department and the state Department of Health, according to over 100 screenshots the Department of Health provided in response to a public records request.

Those conversations include extensive discussions between Blalock and other public employees about the state’s network of COVID-19 shelters — including Canyon Transitional Rehabilitation, the troubled nursing home that was awarded a lucrative state contract to care for COVID-19 patients — as well as discussions on federal aid, communications with tribal governments, updates on testing sites and infection counts.

Those Signal messages were set to automatically delete after one week, according to screenshots of the app settings, but they were nonetheless preserved by several Department of Health employees.

While lawyers said some of these messages may be transitory, they characterized others as official records that are subject to retention laws.

Other Signal messages show CYFD used the app to discuss legislative issues and problems with private contractors, as well as to communicate with foster parents on issues concerning the well-being of children in foster care.

Although the department ceased using the app April 29, many CYFD employees continue to have active Signal accounts on their phones. Meanwhile, the department has switched to Microsoft Teams, a platform that offers the agency the same ability to encrypt and automatically delete messages.

Disclosure: Searchlight’s outside counsel, Greg Williams, is an attorney with Peifer’s law firm.

Searchlight New Mexico is a nonpartisan, nonprofit news organization dedicated to investigative reporting in New Mexico.

(12) comments

Brian Weiss

There is an easy and obvious solution to this. The governor, if truly in favor of open government/transparency, issues an order that ALL electronic communications by ALL state agencies be preserved. Period. End of story, end of issue. The cost of storing everything is small and a LOT less than the cost of legal action. . .or bad government. There is simply NO excuse for destroying this records, "transitory" or not. They are records of business done by state agencies on our behalf. We have a right to know about them, with an independent third party deciding any issues of redactions for privacy purposes.

Mike Johnson

Well said and correct. But remember that would be "if"...."The governor, if truly in favor of open government/transparency...." , which of course she is not.

Richard Irell

I wonder how much the lawsuits will cost the citizens of NM.

Lupe Molina

Methinks, some folks doth protest too much. Modern corporate and government data privacy practices are pretty different than they were even 15 years ago. The ire about this might be generational. Do people think their water cooler conversations from the 90s should have been kept in record? If proper case files were being kept, then these conversations likely pose more liability than accountability if the agency was hacked. Security would be important there. If someone leaked sensitive info as a kid, they would never know a world where their childhood problems were private.

Khal Spencer

I hope they have a good lawyer. I'm not going to vote for this governor again.

John Cook

Well, Khal, I am also disappointed with the Governor in this and some other instances. Elections, however, are choices. It's way to early to know what the choice will be in '22. A primary challenge might pop up although it's doubtful. But almost certainly the Republicans will nominate a Trumpie with not a single policy thought except cutting taxes at the top and provoking cultural hate. Elections are choices.

Khal Spencer

Agreed. If the competition is bad enough, and given the state of the GOP in New Mexico, it probably will be pretty bad, I may not vote for either party's candidate but I'll cross that bridge when I come to it.

Mike Johnson

Agreed Khal, I won't make that mistake at the ballot box again, fool me twice.....but what a sorry record for MLG's administration. Paying off a paramour to keep him silent, spending on Wagyu beef and tequila, jewelry shopping sprees against COVID rules, hair styling and makeup splurges, DOWFS corruption and malfeasance for 100s of millions of $$, and now firing whistle blowers and encouraging coverups of official documents. And of course her general vindictiveness and decisions based purely on politics, not science, around many COVID restrictions. But we all know the kind of people who get elected and reelected around here, fromWebber, to Ben Ray, to Marty, to Andrea Romero, it seems the voters just aren't paying attention. MLG better hope they continue their slumber......

Dan Frazier

I'm surprised the New Mexican did not hold this story until Sunday to give it greater exposure. The level of ignorance and stupidity in this administration blows my mind! I have never heard of "transitory" communications and suspect they are make-believe on par with unicorns.

Everything done by a government agency is (or should be) a public record. The only exceptions might be names and identifying details of members of the public under certain circumstances (children and victims of crime especially).

Are there no whistle-blower protections in place so that people can't be fired for raising legitimate concerns about illegal activity? I hope at least the fired parties can file a lawsuit to collect their lost wages.

Meanwhile, I am hoping to see some grown-up behavior by the Attorney General's office to hold the guilty parties accountable.

Seth Feder

data privacy policy and practices are actually quite common in business. there are classifications of data based on sensitivity and employees are trained on how to handle each. normally this policy is determined in conjunction with the legal department.

Khal Spencer

Maybe you missed it, Seth, but this is government, not business. If CYFD got guidance that these were not "records" needing to be preserved, that's legitimate, even if the opinion is wrong. Firing people for asking the hard questions is wrong.

This from a governor who asserts that campaign finance laws don't apply to her.

Dan Lewis

Khal, maybe you don't realize the extreme privacy laws around anything to do with Children's court cases and around children who are under the supervision of CYFD. That does NOT fall in the public domain. That has nothing to do with governance. If someone does discuss a child's case with anyone in the public who is not germane to the case, they are breaking the law.

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