CAN GOVERNMENT OFFICIALS PICK AND CHOOSE which news outlets they give comments and information to? A lawsuit filed by a New Mexico alternative weekly against the governor could expand the state’s press freedom protections with a broader definition of censorship. Or it could quash a newspaper-led effort at accountability and transparency in state government, giving elected officials license to ignore smaller media outlets asking uncomfortable questions.
During a three-day bench trial in March, lawyers for the Santa Fe Reporter argued that Gov. Susana Martinez’s communications staffers discriminated against them because they didn’t like the paper’s viewpoint—actions that amount to censorship that violates the state constitution. Reporter staff testified that the administration froze them out after the paper published a major story critical of the governor, ignoring their emails and sitting on their public records requests. The Reporter’s legal argument is that government can’t disregard one news outlet’s routine requests for comment and information; courts have previously held that the government can’t exclude reporters it doesn’t like from press conferences or news release email lists. (Disclosure: I have done freelance writing for the Reporter, mostly about food. I have not been involved at all with this lawsuit.)
The Reporter filed suit in state district court in 2013, but years of motions filed by the governor’s contract attorneys kept the case from trial. Now, both sides are laboring over written closing arguments they are expected to submit in early May. There will be time for rebuttals, and then a decision, which is expected in late spring. A victory for the Reporter could limit the abilities of government officials to delay or deny record requests, and force officials to treat all news organizations equally, despite their size or perceived friendliness.
Knell told the court he believed his job was ‘determining the best way to convey the governor’s message,’ and that communicating with reporters was only a small part of it.
THE SUMMER OF 2012 BROUGHT WITH IT the revelation that the governor and administration officials had been using private email accounts to conduct state business. One cabinet secretary (who had been fired by Martinez) said she and other administration officials were told to use personal accounts in order to elude public records requests.
A few months after that, a recording surfaced of the governor’s chief of staff, Keith Gardner, appearing to confirm as much. “I never email on my state email anything that can come back to bite my ass. It is all done off-line. I never … use my state email because it is all done on different stuff ’cause I don’t want to go to court and jail,” Gardner could be heard saying. In court, he testified that his comments were taken out of context.
Shortly after, Martinez ordered all executive branch employees to use official email for state business, and open government advocates lauded her for doing so. But Martinez—a Republican governor in what was then still her first term—had campaigned on bringing ethics, transparency and accountability to Santa Fe. Smelling hypocrisy, the Reporter sank its teeth in and wouldn’t let go.
In more than two-dozen stories published that year, staff writers sniffed around and dug into the inner workings of the administration. Their efforts culminated in a December 2012 cover story, which charged that in Martinez’s administration, “access is often limited to a privileged few; that many decisions are made behind closed doors; and that public officials have at times done more to avoid transparency than to foster it.”
The Reporter’s story was embarrassing in many ways for the governor. The cover featured a full-page illustration of Martinez as a snarling, angry giant, clutching a filing cabinet full of documents and crashing through the burning ruins of Santa Fe. The story mentioned that some of the emails from that private network (released by the former attorney general, a political rival) revealed a few purchases made by the governor: Spanx, 50 Shades of Grey, and songs by the critically maligned band Nickelback. Those details account for fewer than 50 words in what was ultimately a nearly 4,000-word feature.
After that issue was published, there was a noticeable difference in the Reporter’s relationship with the governor’s office, former editor Alexa Schirtzinger testified. After becoming frustrated with getting no responses to their queries, staff writer Joey Peters called Gov. Martinez’s cell phone and asked for comments on some stories the Reporter was following. With Martinez on speakerphone and a recorder taping the call, Peters, Schirtzinger and another staff writer, Justin Horwath, listened as the governor suggested they call Enrique Knell, her communications director at the time.
Peters protested that Knell hadn’t been returning their calls. “Well I wonder why,” Martinez said before hanging up.
IN COURT, THE REPORTER LAID OUT its evidence for discrimination. Their lawyer presented a tweet by a Martinez spokesman complaining about a story Horwath published in The Santa Fe New Mexican, where he now works. “No surprise given his previous ‘reporting’ for liberal tabloid,” the spokesman tweeted. That tweet echoed an official comment from Knell after the paper filed suit:
“It’s not a surprise that a left-wing weekly tabloid that published stolen emails containing the Governor’s personal underwear order would file a baseless suit like this. Their public records requests are treated the same as every other citizen in New Mexico.”
The paper cited those examples as evidence that Martinez and her staff were intentionally denying access to the paper because they were unhappy with its coverage. But in court, the defense denied that charge and argued that the governor’s communications staff was simply too busy to respond to all inquiries—and, even if they could, they were under no obligation to do so. Knell told the court he believed his job was “determining the best way to convey the governor’s message,” and that communicating with reporters was only a small part of it.
With limited resources, Knell said, he prioritized responding to the Associated Press and newspapers with higher circulation. The defense suggested that smaller news outlets could get all the information they needed from wire services.
During the trial, the governor’s lawyer tried to paint the Reporter as a lightweight outlet staffed by amateurs. In cross-examination, he asked Schirtzinger, the former editor, about her education and qualifications. After she listed her degrees from Dartmouth and the Columbia University Graduate School of Journalism, he pointedly asked about her brief, post-Peace Corps stint as a dive instructor.
The Reporter’s lawsuit also charges the governor’s office with stifling its official records requests and improperly refusing to turn over information about pardon requests and the governor’s daily calendar. The Associated Press sued for the same records in 2013, and obtained some records as part of a 2015 settlement.
There is this gap between what the retention laws require to be archived and stored and the definition of what has to be released under the public records laws, which are much broader.
The defense suggested reporters from the paper were unreasonably demanding, submitting far more public records requests than other news organizations. Reporter staffers testified that after feeling as though they were shut out, they began submitting requests under the state Inspection of Public Records Act for information they were also requesting via email. Knell said he prioritized the records requests, which the Reporter showed the governor’s office was able to bunt for months, through extension after extension with no immediate penalty under the law.
The Reporter is also suing for damages in the case, in part to strengthen the enforcement of the public records law, which was weakened by a recent decision requiring that plaintiffs show “actual damages.”
“We hope we’ll win on the idea that if records are improperly withheld you are still able to collect damages,” says the Reporter’s pro-bono lawyer, Daniel Yohalem. “And that, in coordination with attorney’s fees, will be a disincentive to withholding or delaying documents.”
THE CASE MAY ALSO ENABLE REPORTERS to take a bite out of the private email problem. Many public officials have come under fire for using private email accounts and messaging systems, including New York Gov. Andrew Cuomo, Florida Gov. Rick Scott and Vice President Mike Pence, who defended discussing government business on his AOL account when he was governor of Indiana. In many states, including New Mexico, it is not explicitly illegal for public officials to use private accounts, provided that public records contained in them are retained and turned over in response to records requests.
During trial questioning about the Reporter’s public records requests, Martinez administration officials explained that so few emails had been found, even in their official email accounts, because they simply didn’t have them. They had been deleted.
As part of its lawsuit, the Reporter asks that the government be required to do more rigorous searches and to discipline employees who improperly delete records.
“This is a persistent problem around the country,” Reporters Committee for Freedom of the Press attorney Adam Marshall tells CJR. “There is this gap between what the retention laws require to be archived and stored and the definition of what has to be released under the public records laws, which are much broader.”
Attempting to prevent public access to the records of government by narrowing the definition in such an extreme way is dangerous, Marshall says. “It’s hugely detrimental to the public and the form of democratic governance that we generally uphold as being important.”