KNME New Mexico PBS is a government agency. It is part of the University of New Mexico, a state institution. Its employees are public employees. Its documents are state records covered under the New Mexico Inspection of Public Records Act.
As we reported previously, KNME has racked up fines now approaching $200,000 for failing to fully respond to a request to inspect public records served on the organization in the Summer of 2007. A lawsuit was filed to enforce the law. KNME’s attorneys raised hyper-technical objections that have been rejected by a unanimous New Mexico Supreme Court. But the station continues to hold back public records on legally tenuous claims of privilege not likely to be recognized by New Mexico courts.
KNME was ordered a year ago to mediate the case but has not done so.
We also reported that the Inspector General of the Corporation for Public Broadcasting in a July 2012 report faulted KNME for sloppy financial records and violation of the open meetings requirements for PBS affiliates.
As part of its response to the Inspector General’s examination of its operations, KNME announced a new public records policy:
So is KNME doing any better meeting its public records obligations under New Mexico law and the obligations it established for itself with its new open records policy?
Unfortunately, it seems the PBS affiliate is still having big problems with the notion that its records should be freely available for public inspection and copying.
KNME Falls Short
On August 27, 2012, New Mexico Watchdog submitted a request to inspect some of KNME’s public records. We wanted to complete our reporting on a pending whistleblower lawsuit against KNME brought by its former assistant general manager, Joanne Bachmann. The lawsuit alleges that Bachmann was fired in 2009 for reporting alleged diversions by UNM of millions of dollars of federal and state funds intended for KNME.
We requested to inspect:
1. All annual financial reports of KNME from 2008 to the latest report.
2. Records showing how much programming time during the past four years has been consumed by fundraising broadcasts.
3. All reports of investigations conducted by KNME-TV, the University of New Mexico and/or the Corporation for Public Broadcasting into claims raised by Joanne Bachmann that UNM has diverted federal and state funds for KNME to other purposes, including federal funds to assist KNME with transition to digital television.
4. Any and all reports prepared by Joanne Bachmann concerning the diversion by the University of New Mexico of funds from state and federal sources intended for KNME.
5. Minutes of meetings of the KNME Board of Directors and Advisory Board from 2008 to the latest meeting.
We were not permitted to inspect any of Bachmann’s reports, nor any of the investigations resulting from what she reported. KNME raised claims of attorney-client privilege regarding investigations into Bachmann’s reports of malfeasance, or claimed the investigations by KNME, UNM and/or CPB into matters raised in Bachmann’s reports were confidential personnel information. At the same time we were told no reports of malfeasance by Bachmann existed.
And we were given documents that look like this:
When we complained about the documents being almost entirely blacked out, we were told by the University Counsel’s office that this was done to prevent us from seeing financial information “deemed irrelevant” to the request since that information was available in the audited financial statements.
We were provided minutes of meetings of the KNME Board of Directors electronically. When we pointed out that we received nothing for 2008, we were informed that those records had to be inspected in person in KNME’s offices. We simply asked that those minutes be copied as well as the minutes from 2006 and 2007.
About a month after we submitted our request, we were told the copies of the minutes were ready for us to pick up in the office of University Counsel. There we were presented with a bill for $178, at a rate of $1.00 per page. This is the highest rate we have ever encountered in any of the numerous public records requests we have made for state and local government records.
We discovered that the $1.00 per page rate was four times the standard UNM charge for copies of documents produced in response to public records requests.
A funny thing happened when we asked about this discrepancy.
The Office of University Counsel confused us with someone else who had also been requesting public records from KNME. We got this e-mail from them:
“The AG’s Compliance Guide states that we can charge up to no more than a dollar per page, although our Custodian’s office has typically charged 25 cents. This is what we relayed to Polly Anderson [KNME general manager] and Karen Mann [KNME's finance executive] who wanted to charge you $1.00, we got them to lower it to 25 cents, which brought down the amount you owe to $675.”
Is there anything wrong with KNME charging some people more than others for copies of public records, and can it legally charge $1.00 a page?
“The public body can only charge ACTUAL COSTS related to the copying, with a maximum of $1 per page,” we were told in an e-mail from Gwyneth Doland, Executive Director of the New Mexico Foundation for Open Government. “And yes, that fee must be consistent. Remember, too, that the records custodian can’t charge for the time required to located the records, only the time required for actual copying.”
Other than acknowledging that they did confuse us with someone else, we never did get an explanation from the UNM University Counsel’s office as to why New Mexico Watchdog was charged four times the rate charged to someone else requesting KNME records.
We plan to ask for a refund and see what happens.
Incidentally, KENW, the PBS affiliate at Eastern New Mexico University, provides the minutes of meetings of its Board of Directors on its website, eliminating the need for members of the public to submit public records requests and pay copying charges.
More New Mexico Watchdog reporting on KNME: Public TV, Private Gain: KNME’s General Manger Rakes It In