Despite what some have suggested, state legislators are creating public records when they discuss public business by e-mail, even if they're using private accounts to do it, Attorney General Gary King's Office says.
"An e-mail relating to public business sent or received by a single member of a policymaking body is a public record regardless of whether the e-mail account used is a private or government account," King's spokesman Phil Sisneros told New Mexico In Depth.
If the AG is right, such e-mails must be turned over in response to records requests from members of the public including the media, unless those e-mails qualify for an exemption.
The AG's Office recently released an updated guide for complying with the state's Inspection of Public Records Act (IPRA) that, for the first time, asserted that government officials' private e-mails that relate to public business are public documents. Private is a term that can apply to personal and other non-governmental accounts.
That such e-mails are public has been the AG's position since at least 2009, when his office issued a formal opinion in a case involving city officials in Las Vegas. But NMID found no place where King or his office had explicitly stated publicly before now that legislators' private e-mails, when discussing public business, are subject to IPRA. The attorney general's position could be unpopular among some lawmakers.
Earlier this year, three legislative leaders who have used private e-mail accounts for legislative business said New Mexico's public records law is fuzzy on such questions.
“Frankly, there are a lot of unresolved questions of how, or even whether, the Inspection of Public Records Act applies to e-mails on legislators’ personal e-mail account," Senate Majority Leader Michael Sanchez, House Majority Leader Ken Martinez and House Minority Leader Tom Taylor wrote in a response to an IPRA request I sent in June seeking 30 days of their private e-mail. "Among those are whether individual legislators are considered public bodies as defined in the act, how e-mails to and from constituents should be treated under the act and whether individual legislators have the authority to direct policy or take official action like executive officials.”
Whether individual members of a policymaking body, such as lawmakers serving in the New Mexico Legislature, are authorized to direct policy or take official action "has no bearing either way" on the e-mails' status under the public records act, Sisneros said.
So far, the lawmakers have not provided e-mails in response to my records request, meaning they could be in violation of state law if the AG’s interpretation is correct. Attorney general opinions are not legally binding but are a legal analysis and opinion from the state's top law enforcement officer.
The AG's opinion could place pressure on lawmakers and other government officials to set up a system for dealing with requests for e-mails sent to or from their private accounts. Legislators could try to change the law, or they could adopt a rule applying only to themselves that would prohibit the use of private e-mail to discuss public business or addresses the issue in some other way.
New Mexico In Depth is working on a larger article on the use of private e-mail by government officials, but thought Sisneros' comments about the open-records law applying to private e-mail when public business is discussed were strong enough to share publicly rather than waiting to include them in a story whose publication date has not been set.
The use of private e-mail has been an issue since the revelation earlier this year that Gov. Susana Martinez and other administration officials were using non-governmental e-mail accounts to discuss public business. The public learned about the situation because of e-mails an anonymous source gave to a left-leaning PAC. The PAC later released those e-mails to the public. Susana Martinez claims the e-mail accounts were illegally hacked, and federal law enforcement officials are investigating.
That controversy also brought attention to the widespread practice among state lawmakers of using private e-mail to conduct legislative business. In response, some, including Ken Martinez, recently stopped listing personal e-mail addresses as their official contacts on the Legislature's website. Ken Martinez now lists a government e-mail addresses.