The State of Open Government Amidst the Crisis

Category: Editorials Editorials
Published: 14 May 2020 14 May 2020

MAY 13, 2020 By Patrick M. Brenner of the Rio Grande Froundation

Whether it's projected tax revenues or emails from constituents to County Commissioners, the Rio Grande Foundation is passionate about open government and regularly files public records requests. New Mexico has solid sunshine laws on the books and good case law to support our right to know: "Recognizing that a representative government is dependent upon an informed electorate, the intent of the […] Inspection of Public Records Act is to ensure […] that all persons are entitled to the greatest possible information regarding the affairs of government."

The Coronavirus Pandemic has us all acclimating to abnormal working conditions and different environments. That includes both public records custodians and the team here at the Foundation. However, the state of open government and transparency in government is troubling. Normally, public records requests are responded to in a lethargic fashion regardless of the public body the records are sought from.

This pandemic has added remarkable delays to already delayed requests, directly impacting our ability to seek and obtain public records related to our work here at the Foundation. Public officers and employees of our government have either forgotten the importance of our sunshine or are using the Virus to circumvent transparency.

The Rio Grande Foundation has numerous open public records requests, to put it mildly:

•City of Albuquerque, a request filed in December 2019, requesting emails and text messages of some City employees. Zero responsive records have been received so far. This request has been fraught with unnecessary delays, and then in April 2020, they asked for additional time suddenly able to cite the ongoing Coronavirus pandemic.

•County of Bernalillo, a request filed in June 2019, requesting constituent responses regarding the Paid Time Off ordinance being considered at that time. Some responsive records were finally received in February 2020, but have been improperly redacted.

•New Mexico Department of Taxation and Revenue, filed in May 2020, requesting Gross Receipts Tax revenues and oil and gas tax revenues for 2019 and 2020-to-date. No response even acknowledging the request has been received.

•New Department of Health, a request filed in April 2020, requesting "statistical model equations and supporting model assumptions referenced by Dr. Scrase at the governor's April 22nd press conference to present projections of future COVID-19 cases, hospitalizations, and deaths in New Mexico." The Human Services Department was not the custodian of these records and forwarded the request to the Department of Health, which promptly marked the request as "unnecessarily broad and burdensome" citing the ongoing Coronavirus pandemic and has not responded with any responsive documents.

The Foundation can't even obtain the Gross Receipts Tax revenue figures without jumping over bureaucratic red tape. Simple requests for public records are being met with "extensions" because our requests for emails are "unnecessarily broad and burdensome." This ongoing Coronavirus pandemic is a real and serious public health and economic crisis, which is now creating a transparency crisis, enabling our government to cite the health crisis as the reason for not providing properly requested emails and text messages.

If a government employee is working from home, why does the Coronavirus give them an excuse to not provide public records? What is the actual cause for the delay? I am frustrated, and it seems that the only path forward in obtaining public records is litigation. Is this the "new normal?"

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