State agency misused executive privilege, Governor’s Office says

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When it cited executive privilege in refusing to disclose emails requested by New Mexico In Depth last month, the state’s Human Services Department violated an executive order Gov. Susana Martinez signed the day she took office.

And though the Governor’s Office recently chastised Human Services (HSD) for inappropriately citing executive privilege to withhold documents, an attorney for the governor still directed HSD to keep the emails secret.

In response to an Oct. 11 Inspection of Public Records Act (IPRA) request, HSD refused to disclose 241 emails and attachments related to state and federal “Sole Community Provider” funding for hospitals in underserved communities. Like the state’s Medicaid and behavioral health programs, hospitals’ Sole Community Provider funding is undergoing an overhaul that could affect patients across the state.

When an agency refuses to release records, it must cite an exemption to IPRA that allows it to keep the documents secret. For example, personnel records can be withheld. In this case, HSD cited the “attorney-client privilege exemption and… the work product privilege” in withholding most of the emails NMID requested.

Those exceptions permit communications between attorneys and their clients, as well as records describing public hospitals’ long-range or strategic business plans, to be withheld from public disclosure.

But the agency also cited “executive privilege” – a power claimed by the chief executive – in withholding three emails.

Only Martinez’s office can authorize such use of executive privilege. Martinez’s Executive Order 2011-003, signed shortly after she took office, declared that “access to public information should be the rule, and denial thereof the exception.” She ordered that state agencies could cite executive privilege to withhold records only with approval from her office.

That was at least in part due to Martinez’s belief that the administration of her predecessor, Bill Richardson, used executive privilege inappropriately to keep records secret. In her 2011 State of the State address, Martinez talked about operating state government “in an open and transparent manner,” saying that’s why she “signed an executive order prohibiting state agencies from frivolously using executive privilege to block open records requests.”

Pressed for an explanation by NMID on its citing of executive privilege to withhold the three emails, HSD consulted the Governor’s Office. Martinez’s Assistant General Counsel Matthew Stackpole responded in a Nov. 1 email to HSD, saying the agency should have consulted the Governor’s Office before citing executive privilege. He also wrote that citing executive privilege was inappropriate in the case of two of the three emails.

“Please remember that in future IPRA productions, only the Governor can claim Executive Privilege over a communication, and your agency needs to consult our Office before making such a claim,” Stackpole’s email states.

But rather than ordering HSD to release the two emails, Stackpole advised the agency to shift its justification for keeping them secret, telling HSD that the “appropriate response” would be to cite attorney-client privilege.

The Governor’s Office also subsequently approved HSD’s invocation of executive privilege to withhold separately-requested 2012 emails about plans for the state’s online Health Insurance Exchange marketplace.

Martinez spokesman Enrique Knell did not respond to emails requesting comment.

Still not in compliance

This isn’t the first time HSD has come under scrutiny for withholding records. NMID and the Las Cruces Sun-News are suing the agency, and so is the New Mexico Foundation for Open Government, to try to win release of an audit it used to justify freezing Medicaid payments to 15 health organizations – an audit HSD and the Attorney General’s Office have largely kept secret.

And though HSD has shifted its justification for withholding the emails related to Sole Community Provider funding and now claims executive privilege applies to only one of the three, it’s still not in compliance with IPRA or the governor’s executive order.

When the governor approves an agency’s use of executive privilege, Martinez’s executive order requires that redacted versions of requested documents be released “so that any other information on the document that is properly public is disclosed.”

HSD didn’t release redacted versions of the three emails when it claimed executive privilege in October. Now that it’s shifted to claiming executive privilege for only one email, it still hasn’t released a redacted version of that document.

The agency did review the 238 other initially-withheld emails and attachments, however, disclosing 23 of them on Nov. 5. But the agency did not explain why the belatedly-disclosed documents had been withheld in the first place.

IPRA requires that the agency explain why it’s withholding records.

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