When the New Mexico Foundation for Open Government asked 122 state agencies and all 33 counties for their logs of public records requests, the group found that 18 state agencies — including the governor’s office — claim they don’t even keep a log. While many agencies took longer to respond than allowed by law, nine state agencies or boards and six county governments never responded at all — even after follow-up emails were sent.
The foundation’s executive director, Susan Boe, told The New Mexican on Tuesday that while the audit showed most government bodies did comply with the law, some of the responses, such as disregarding legal time limits, are “troubling.”
She said the study points to weaknesses in the Inspection of Public Records Act, the state law that requires local and state government agencies to make public records available upon request.
Nothing in the statute requires government entities to keep logs of public records requests, a key tool that would help agencies track requests to ensure they are being filled within the time limits required by law. The only real recourse that citizens, news organizations and businesses have to force compliance is filing lawsuits. While the state Attorney General’s Office can prosecute violations of the act, it has never done so, Boe said.
She said it might be time to amend the Inspection of Public Records Act “to allow people to get complaints resolved without going to court.”
Some states require agencies to have ombudsmen who settle problems with records requests, Boe said. Others have “transparency panels” made up of government workers, journalists and others who hear public records disputes.
During the audit, the foundation asked for copies of any logs of public records requests kept by the public body during 2014, 2015 and 2016. If the agency didn’t track records requests, the records custodian was asked to respond with that information. The Albuquerque-based organization made the requests through an ally who didn’t identify himself as being associated with the group.
“We didn’t want to influence the results,” Boe said.
The law requires government bodies to permit inspection of public records no later than 15 days after receiving a written request. If the inspection is not possible within three business days of the request, the records custodian is required to explain in writing when the records will be available for inspection.
The State Investment Council took 45 days to answer a request. Boe said the agency explained this was partly due to a computer glitch. The state Public Safety Department, which receives the most requests of any agency, took 36 days, while the state Medical Board took 25 days, the state Public Education Department took 23 days, and the Insurance Superintendent’s office took 21 days.
Besides late responses and non-responses, the audit showed that some agencies used certified mail to answer public information requests. In a couple of instances this caused problems. One compact disc containing requested information sent by certified mail was misplaced at the the post office for more than a month. In another instance, the requester had to go to the post office to pick up a certified letter from a county government. This letter only said that the county had no records.
Three public bodies charged fees for the electronic documents. These were the state Gaming Control Board and Harding and Sierra counties.
A few public bodies wouldn’t deliver any of the requested documents until the request was resubmitted on “official” forms — even though the Inspection of Public Records Act doesn’t include such a requirement.
Boe said the state agencies that never responded to requests were mostly small government boards. They include The Cultural Properties Review Committee, the Cumbres & Toltec Scenic Railroad Commission, the state Livestock Board, the Martin Luther King Jr. Commission, the Municipal Boundary Commission, the Board of Nursing, the Off-Highway Vehicle Advisory Board, the Public Schools Insurance Authority and the state Sentencing Commission.
The six counties that never responded were Catron, Cibola, Colfax, Guadalupe, Lincoln and Quay.
Boe said it is important for governments to keep logs of public records requests. First, she said, it helps records custodians keep up with deadlines. It also helps locate documents for those who file identical or similar requests.
Besides the Governor’s Office, the state agencies that claimed not to maintain a log were the Office of the Lieutenant Governor, the Public Regulation Commission, the State Investment Council, the Department of Economic Development, the Tourism Department, the Veterans Services Department, the Department of Workforce Solutions, the Department of Information Technology, the Department of Indian Affairs, the state Racing Commission, the State Records Center and Archives, the Mortgage Finance Authority, the state Parole Board, Highlands University, Northern New Mexico Community College, the state Architecture Board of Examiners, the Development Disabilities Council and the Economic Partnership.
That is consistent with the response The New Mexican received from the governor’s records custodian in September 2013 to a request for a log of all the public records requests handled by that office. Records custodian Pamela Cason responded that the office “does not hold any responsive records to your request.”
However, the Governor’s Office does have some sort of systems for records requests. In correspondence from the office, each request has a specific number, and the records custodian keeps track of the dates by which the office has to respond.
A spokesman for Gov. Susana Martinez, Mike Lonergan, said Tuesday, “We do not keep a log. Sequential numbers are assigned to IPRA requests for each year, e.g., 13-001, 13-002, and so on.” Likewise, Estevan Lujan, spokesman and records custodian for the Department of Information Technology, said, “we do not keep a log of IPRA requests. Any correspondence regarding IPRA requests is organized and assigned a number based on the date received.”
Melanie Sandoval, records custodian for the Public Regulation Commission, also said she doesn’t keep a log for public information requests, though she does keep folders — one for pending and one for completed requests. Commission spokesman Carlos Padilla said Tuesday the agency used to keep a log, but that stopped about a year when the agency’s Administrative Services Division lost its director.
The interactive bar graph shows the number of days that 76 state departments, agencies and commissions took to respond to an Inspection of Public Records Act request. A zero value means a response came the same day as the request. Nine agencies were omitted from the graph because they did not respond at all to a request. The second graphic shows the number of requests many state entities received in 2015.
Source: New Mexico Foundation for Open Government
Visualization by Dan Schwartz.