More than 10 days after a lawyer for the state Public Regulation Commission filed a lawsuit to try to prevent The New Mexican from publishing “confidential” documents related to Public Service Company of New Mexico’s plans for the San Juan Generating Station, one major question has yet to be answered:
Exactly who authorized the suit? No vote was ever taken by the commission.
At least two commissioners raised that question at a public meeting last week, but nobody provided an actual answer. On Monday, Michael Smith, the commission’s general counsel, declined to answer a reporter’s question about who authorized the legal action. The commission’s chief of staff, Vincent Martinez, did not return a reporter’s phone calls and emails.
Contacted by phone Monday, commission Chairwoman Karen Montoya, D-Albuquerque, noted that at last week’s meeting she asked commission staff to show her in writing the policy in place — if indeed there is any policy — for filing such lawsuits. She said she has yet to receive a response.
Last week, the commission, as well as PNM and two mining companies that had intervened in the case, asked state District Judge David Thomson for permission to withdraw from the case. The commission decided to withdraw after Smith said to the elected body that he didn’t think the commission would prevail due to the constitutional guarantee of freedom of the press.
Thomson declined to impose a restraining order against The New Mexican, which already had published some of the documents.
According to an email obtained by The New Mexican, on the day the lawsuit was filed, Smith informed all commissioners that some confidential documents had accidentally been given to the newspaper as part of the response to a public-records request and that a lawsuit was in the works.
“Our office is in the process of drafting a formal demand letter to the management of The New Mexican and a court filing for temporary injunctive relief to prevent The New Mexican from disseminating any information … pending a court determination on a demand for return of the information and permanent injunctive relief,” Smith wrote. “We are researching the law on the inadvertent disclosure of confidential government documents in support of that anticipated pleading and I will provide you with an update as that progresses.”
The email, with the subject line “URGENT: PNM-San Juan,” was sent shortly before noon on Aug. 6.
Commissioner Sandy Jones, D-Williamsburg, responded to the email, asking which documents had been released and suggesting that Smith, along with the court action, also contact the state Risk Management Division about the matter, a division that handles claims against state agencies.
Smith last week told commissioners that “the only available remedy” would be a temporary restraining order to try to prevent publication of the documents.
The commission’s “demand” letter to the newspaper was sent early that afternoon. The legal petition itself was not filed until about 9:15 p.m. that day.
Montoya reiterated on Monday what she said at last week’s commission meeting: that she talked to the chief of staff and Smith on the day the lawsuit was filed. “I was called by the chief of staff and I called Michael Smith to get an attorney’s perspective,” she said.
At last week’s meeting, Commissioner Lynda Lovejoy, D-Crownpoint, also said she received a call from Martinez. Commissioner Valerie Espinoza, D-Santa Fe, said Martinez never called her. Commissioner Patrick Lyons, R-Cuervo, said Monday that he also wasn’t consulted before the suit was filed.
Regarding a suggestion made at the meeting that she, as chairwoman, should have called all the other commissioners to discuss the lawsuit, Montoya said she purposely didn’t call other commissioners because that might trigger a potential Open Meetings Act violation known as a “rolling quorum.” That is when a majority of a government body discusses an issue outside of a public meeting.
Montoya said that from her conversation with Smith she assumed that the lawsuit would be filed that day. “I assumed time was of the essence,” she said.
But she didn’t encourage Smith to file the suit, even though she agreed that the PRC should try to prevent publication, she said.
As she did at last week’s meeting, Montoya denied that she authorized the filing of the court petition, acknowledging that she doesn’t have the authority.
Espinoza asked during last week’s meeting whether Smith received guidance from PNM and whether he notified the utility about the documents. Smith did not answer that question.
The New Mexican last week filed a public records request for any correspondence between the commission and PNM during an eight-day period beginning the day the documents were released. This includes the day that Smith filed the lawsuit as well as the day PNM intervened in the case.
A spokeswoman for PNM said Monday the utility couldn’t comment because the case has not been dismissed. The New Mexican is seeking recovery of legal fees and damages from the commission and the interveners.
The commission last week said the records request was “excessively burdensome” and would take up to 30 days to respond. A previous records request for correspondence between PNM and the PRC — which entailed a period of more than six months — took fewer than 30 days to fulfill.
The documents inadvertently released to the newspaper had been filed with the PRC by PNM as part of the commission’s review of the utility’s plans to replace two coal-fired units at the 43-year-old San Juan Generating Station with a combination of coal, solar, wind and nuclear power.