The Albuquerque Journal has sued Governor Bill Richardson for allegedly violating his legal obligations under the Inspection of Public Records Act. Richardson has hired outside private counsel. In his answer, he denies doing anything wrong. The Journal is now in the discovery stage. Richardson’s deposition may loom depending upon how he responds to the Journal’s written discovery requests.
On June 3, 2010, the Albuquerque Journal and its veteran investigative reporter Colleen Heild sued Richardson for failure to comply with Heild’s request to inspect documents identifying the political appointees Richardson announced he had laid off in the face of a budget crisis. We reported on the filing of the suit here. Richardson boasted that by cutting these political positions he was saving taxpayers $8.2 million. But his office refused to disclose the identity of these persons and produced for Heild nothing identifying any of the people whose jobs supposedly had been cut.
The Journal’s suit alleges Richardson and unidentified members of his Administration have withheld documents covered by the document request, and that they have failed to invoke any exemptions from the law’s mandatory rule of disclosure. Also named as a defendant in the suit is Macie Maestas, the formal custodian of records for Richardson’s office. The lawsuit also alleges Richardson’s office failed to forward the request to agencies with records responsive to the request–an explicit requirement of the New Mexico Inspection of Public Records Act.
Richardson Answers the Complaint
Richardson filed his answer the first week of August. It contains boilerplate denials and standard affirmative defenses. But in the denials and defenses suggestions of the forthcoming factual record begin to emerge.
Paragraph 31 of the Journal’s complaint alleges that Richardson and his office failed to produce documents responsive to the request and failed to refer the request to agencies with documents that may be covered by the scope of the request. This is the heart of the lawsuit. But Richardson did not directly deny this central allegation. Instead of a denial to the claim he withheld documents and failed to forward the request as required by law, he only denies “that the Office of the Governor failed to fulfill its obligation under the IPRA in any way and affirmatively states that the Office of the Governor has produced the records in its possession, control and custody that are subject to inspection….”
In other words, (1) the Governor may have withheld records but he does not believe they were required to be produced and (2) he only produced those records he felt like producing that were in his office and did not forward the request to anyone in his administration outside his immediate staff.
The problem for the Governor’s defense is that in response to Heild’s request, the Governor’s office did not invoke any exemptions and state up front it was withholding documents because they were exempt from disclosure. The Journal argues this resulted in a waiver of any such exemption, even if one applied. Richardson’s answer simply denies that it has failed to invoke any exemption. But his answer contains no affirmative invocation, again, that an exemption from IPRA covers a single document the Governor’s office has that is responsive to the request but it is withholding. It merely sets forth a generalized affirmative defense that “Defendants properly withheld records exempt from inspection under the IPRA….”
That means the Governor has now all but admitted that he intentionally withheld documents from the Journal’s reporter. He just didn’t bother to inform the reporter up front he was holding documents back. Presumably he will not attempt to argue that the exemption may apply, after the fact, even though it has never been asserted outside the confines of a lawsuit brought to enforce IPRA.
Astounding Denial of IPRA Obligations
An astounding affirmative is raised at the end of Richardson’s answer. He asserts in his eighth affirmative defense that “Defendants had no duty under the IPRA to forward the records request at issue in this case to other agencies.” But section 14-2-8(E) of the New Mexico Inspection of Public Records Act states in terms that could not be more clear and unambiguous: ‘[i]n the event that a written request is not made to the custodian having possession or the responsibility for the public records requested, the person receiving the request shall promptly forward the request to the custodian of the requested public records, if known, and notify the requester.”
As we have previously written, unless 59 political appointees were terminated without any written record–including a single e-mail–then Richardson’s office must have records identifying these individuals. The New Mexico Attorney General agrees (see below). It defies credulity that Richardson’s office and his administration possess not a single piece of paper regarding these claimed terminations. Indeed, how could Richardson’s office have calculated a $8.2 million saving unless it knew the positions eliminated and the salaries and other benefits for those jobs?
Will Richardson Be Put Under Oath and Deposed?
According to Kent Walz, Editor of The Albuquerque Journal, the lawsuit is now in the discovery stage. When asked if the Journal would seek Richardson’s deposition, Walz said he was “unsure” and that he thinks “it depends on other discovery answers.” Such discovery can include answers to written interrogatories and requests for production of documents under the New Mexico Rules of Civil Procedure.
The dynamics of discovery vary significantly from responding to a request under the Inspection of Public Records Act. Both the Rules of Civil Procedure and IPRA require production of records covered by the request. But IPRA has no oversight mechanism equivalent to the sanctions that give teeth to the Rules of Civil Procedure. A custodian of records can say they have produced all documents covered by a request, but hold back documents that should be produced. Investigative reporter Heild experienced that in reporting on the Department of Transportation. A source provided her with documents withheld by the custodian in her reporting on former DOT exec Anthony Barreras. There is usually no way for the requester to know or confirm that all documents responsive to the request have been disclosed. They simply will never know in most cases. And no one is checking the response of the custodian–who works under the control of a political appointee that may be the target of the request–to ensure their compliance.
But when the same IPRA request is folded into a lawsuit and a request for production under the Rules of Civil Discovery, complimented by written interrogatories, another set of eyes enters the picture: lawyers. It will be lawyers certifying that all responsive documents have been produced. And, unlike the letters agencies write under IPRA, the answers to the production request and interrogatories will be under oath. There may also be depositions of individuals involved in gathering and organizing the documents. Opposing lawyers will be able to trace a paper trail. If anything is missing, or the answers are nonresponsive and evasive, a motions for sanctions looms. Sanctions can be an order of court, fines or even a default judgment. The lawyers themselves may be subject to sanctions, as well as the officials holding back documents. The process is not airtight, but it is much more regulated than an IPRA response.
So when Walz says a deposition of Richardson may depend on how defendants respond to other discovery, what he’s indicating is that if lawyers are not satisfied with the written answers they get, Richardson can be put under oath and interrogated. The alleged firing of 59 employees would require executive orders, correspondence with agency heads, correspondence with the affected employees, adjustment of agency budgets, etc. If those documents do not surface in response to the discovery requests, one of the first places to trace the missing paper trail will be the Governor himself.
Richardson Hires Outside Counsel
The Attorney General is not defending Richardson. New Mexico AG Gary King has criticized Richardson’s stonewalling media requests for documentation backing up his announcement of $8.2 million in savings from eliminating 59 political positions. Here is the letter issued by King calling for Richardson to release the documents at issue:
Rather than be represented by counsel critical of his conduct, Richardson has retained the politically connected law firm of Long, Pound and Komer of Santa Fe. Partner John Pound is a long-time Democrat party activist, fundraiser and a close ally of Richardson’s over nearly three decades. Pound’s name was floated as a candidate for New Mexico’s U.S. Attorney after Obama’s election. But because of his close ties to Richardson, the Santa Fe New Mexican argued against his appointment at a time when the office was still actively investigating Richardson.
New Mexico Watchdog has submitted a public records request to Richardson’s office seeking the contract for legal services with Pound’s law firm, documents showing how the firm was selected, and the firm’s billings. Attorney bills are not usually protected by attorney-client privilege.