Because it isn’t a law enforcement agency, the N.M. Human Services Department can’t justify keeping an audit of 15 health providers secret using the law enforcement exception to a state sunshine law, two news organizations suing for release of the audit say.
The Attorney General’s Office (AG), which is representing Human Services (HSD) in the case, argued in a brief filed last week in district court in Las Cruces that keeping the audit secret is necessary to protect the AG’s ongoing criminal probe into potential Medicaid fraud.
A private company, Boston-based Public Consulting Group (PCG), conducted the nearly 400-page audit for HSD, which later gave the document to the AG for investigation. The audit is relevant to the criminal probe, so the document can be kept secret even though a law enforcement agency didn’t conduct it, the AG argues. It’s the information in the document that matters, the AG claims.
The AG’s logic is “a terrifying proposition” for the state’s Inspection of Public Records Act, C.J. McElhinney, the attorney representing New Mexico In Depth and the Las Cruces Sun-News in the lawsuit, wrote in a brief filed Tuesday. The AG’s argument would enable government officials to keep otherwise public documents from the public simply by passing them on to law enforcement agencies, McElhinney wrote.
“That could lead to unprecedented and unforeseen secrecy in New Mexico state government,” he wrote. “There is no public record that would be safe from exemption.”
For example, when there are allegations that a public body made decisions in secret in violation of the state’s Open Meetings Act, McElhinney argues, the policymaking body could give agendas and minutes of meetings – potential evidence – to law enforcement, and then cite the law enforcement exception to keep those documents from members of the public trying to understand their elected officials’ actions. State law currently requires that such documents be made available to the public.
McElhinney’s argument may be especially relevant in Las Cruces. Five former members of the Las Cruces Public Schools Board of Education were convicted a decade ago of misdemeanor violations of the Open Meetings Act for giving then-Superintendent Jesse L. Gonzales nearly $1 million in incentives to stay in Las Cruces without telling the public.
Before the criminal case played out, the Sun-News and members of the public used meeting agendas, minutes and other public records to determine that the school board had acted in secret. The public overwhelmingly recalled two sitting school board members who had been involved in the secret acts.
The law enforcement exception to IPRA allows withholding documents that reveal “confidential sources, methods, information, or individuals accused but not charged with a crime.” That includes “evidence in any form received or compiled in connection with a criminal investigation or prosecution by a law enforcement agency or prosecuting agency…”
McElhinney isn’t arguing that documents created by law enforcement agencies as part of criminal investigations are public records. In fact, had the health audit been conducted by PCG for the attorney general instead of HSD, it would “most definitely fall under the law enforcement exception to IPRA,” McElhinney states.
But the audit wasn’t conducted for the AG. Nor does PCG’s contract with Human Services mention “investigating fraud, conducting a criminal investigation, or the involvement of law enforcement or prosecuting agencies in receiving or compiling the audit.”
The audit has had a significant impact on the public. HSD used the document earlier this year to justify freezing Medicaid payments to the 15 health organizations that provide services like drug treatment and suicide counseling to an estimated 30,000 New Mexicans. That forced most of those providers, including three that operate in Las Cruces – Southwest Counseling Center, Families and Youth, and TeamBuilders – to hand over Medicaid-funded services to Arizona providers the state brought in to fill the gap.
The news organizations hope to win release of the audit so they can do reporting to help New Mexicans understand the allegations against the providers, the reasons the state chose to freeze Medicaid payments, and the fallout of that decision. The New Mexico Foundation for Open Government has also filed a lawsuit to try to win release of the audit. A judge is holding a hearing in Santa Fe in that case on Tuesday.
In the Sun-News/NMID case, the AG is scheduled to submit one additional written brief by Tuesday. A hearing is scheduled for Nov. 21 in front of Chief District Judge Douglas R. Driggers in Las Cruces.