A nonprofit news organization filed a lawsuit last week accusing the Governor’s Office of failing to release emails related to alcohol policy and asking a court to order the agency to hand over the records.
New Mexico In Depth filed its complaint Monday in the state’s First Judicial District Court. It says Gov. Michelle Lujan Grisham withheld a number of emails it had requested by citing executive privilege.
The news organization does not believe the privilege applies to the emails it is seeking. Nicholas Hart, an Albuquerque lawyer who is representing New Mexico In Depth, said the requests were not limited to information on legislation but were “pretty broad,” seeking information about the state’s position on certain policies related to alcohol abuse and addiction.
“The state, in my view, is not expressing any valid public policy or any type of concern where the governor’s advisers or legislative staff wouldn’t be able to do their job if information about these programs [or] … alcohol addiction issues in New Mexico were exposed to the public,” Hart said.
The online news outlet wrote a series of articles last year on alcohol abuse in New Mexico and making the case for a stronger state government response to problem drinking, and has been covering the issue closely since then. The lawsuit deals with two records requests filed by Ted Alcorn, the reporter who has been writing about the issue.
According to the complaint, Alcorn filed records requests Oct. 21 and Oct. 25, seeking texts and emails from gubernatorial staffers Dominic Gabello, Victor Reyes and Jane Wishner discussing alcohol. Lujan Grisham’s office responded with 53 emails and other records but withheld nine, citing executive privilege. The Governor’s Office withheld portions of some of the other emails, as well, claiming attorney-client privilege, the suit says.
Alcorn filed a second request Dec. 14, seeking additional text messages or emails from the Governor’s Office in which gubernatorial staffers discussed alcohol. Lujan Grisham’s office disclosed additional emails and other records in response but withheld 11 emails, again citing executive privilege.
The complaint alleges Lujan Grisham’s office violated the Inspection of Public Records Act by withholding the emails and seeks to force their release.
“Defendant’s assertion that the withheld records are not subject to public inspection because of the executive privilege and the attorney-client privilege is incorrect,” the complaint states.
Nora Meyers Sackett, a governor’s spokeswoman, did not return a request for comment Friday.
Executive privilege is not addressed in the New Mexico Constitution. There has been more extensive federal litigation on its meaning as it applies to the U.S. president and a couple such cases in New Mexico. In one, the New Mexico Supreme Court unanimously ruled former Gov. Bill Richardson was wrong to use executive privilege to deny the New Mexico Republican Party’s request for driver’s license information.
Current case law in New Mexico, Hart said, holds executive privilege covers advice to the executive when disclosure of it could “chill the ability of those advisers to fulfill their roles within the executive branch.”
“I have no information right now about whether those documents are just purely fact-based or purely advice-based, but my position and my strong belief on the executive privilege is you don’t get to hide things under discussion of facts,” Hart said.
Judge Matthew Wilson is hearing the case. No court dates had been set.
