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Thanks to solid investigative reporting by Searchlight New Mexico, the state Children Youth and Families Department is no longer using a secure messaging system designed to circumvent open records laws by automatically deleting records before a request can be made.
The system allowed CYFD officials to automatically delete their text messages. According to former CYFD Chief Public Information Officer Cliff Gilmore, Department Secretary Brian Blaylock told top staff members that they should set their messages to automatically delete after 24 hours, specifically to avoid the Open Records Law. He noted that once a request is made, records must be preserved. So, the best solution is to get rid of them before a request can be made.
Blaylock and the governor’s office originally defended the practice, arguing that only “transitory records” were being destroyed. They described those as workplace banter and insignificant comments among employees.
But who gets to decide what is significant? Former FBI agents Peter Strzok and Lisa Page both argued that their personal exchanges about then-candidate Donald Trump had no bearing on their investigative roles, and should have been considered transitory. But both should have known that communications sent between public officials on a public system are public records.
Investigative journalists and government watchdogs often find critical scraps of information while pouring through communications that others would deem insignificant. Destroying those records will eliminate our ability to learn what government officials are saying to each other when they’re not in public view.
That shouldn’t be allowed, and it isn’t. There is nothing in the state’s open records law that suggests executive officers in state agencies can decide for themselves which exchanges are significant and which can be destroyed.
Matt Baca, a spokesman for the state Attorney General’s Office, said they are pleased that CYFD is no longer using the secure messaging system, and that they were planning to conduct a review to ensure that the department is following the open records law.
Despite that, the governor’s office is still providing official guidance to its staff that virtually all of their messages should be considered transitory and destroyed every 10 days, according to a recent column by Patrick Brenner of the Rio Grande Foundation.
The AG’s Office needs to issue a clear opinion as to whether that is allowed. In the unlikely event that it is allowed, the Legislature will need to update the law to include technology that didn’t exist when it was first written.
Several years ago, I participated in a statewide experiment in Kansas where we requested a public record from every sheriff’s office in the state, then reported on those who failed to comply with the law.
Even after our front-page stories, several sheriffs still refused to turn over what was clearly a public record under the law - an arrest report.
The lesson from that experiment for me was that all public records laws are meaningless unless somebody is willing to spend the money needed to file a court case ensuring that they are followed. And that usually doesn’t happen.
Beyond legal action, the only other way to try to ensure compliance is through public pressure. Sheriffs in Kansas are typically more popular than the local newspaper, and they were unmoved by our investigative efforts.
But this should be a question for Gov. Michelle Lujan Grisham, assuming she runs for re-election next year.
Walter Rubel can be reached at firstname.lastname@example.org.