In 2013, Santa Fe’s alternative weekly newspaper sued Governor Susana Martinez for violating the state’s public records law. That case goes to trial next month and the outcome could have huge repercussions for government transparency and freedom of the press in New Mexico.
Independent journalist Jeff Proctor is reporting on the case for the Santa Fe Reporter. He spoke with KUNM’s Elaine Baumgartel.
KUNM: The Santa Fe Reporter’s lawsuit against Governor Martinez says her administration failed to provide public records according to the law – but it goes even further, and says that the state discriminated against the paper. How can a government actually discriminate against a journalism organization?
Proctor: In this case, they did it a couple of ways, according to the Santa Fe Reporter’s lawsuit. One would be by this broad practice of not responding or not responding in time to public records requests. The other claim in the lawsuit is that the governor’s administration actually violated the free press clause of the New Mexico Constitution. And they did that by, in this sort of middle space where the governor’s office is disseminating news of the day information and then commenting on it, freezing the Reporter’s journalists out of that conversation.
KUNM: There have been multiple hearings in this case already. What have the lawyers representing the Martinez administration argued?
Proctor: They started arguing with this notion that the public records laws don’t apply to the governor’s administration. They went from there to say, even if this did happen, and we don’t admit that it did, it’s ok for the governor to do it. And really the heart of their argument is the separation of powers doctrine in the constitution which basically says that each of the three branches of government should stay in its own lane, and not tell the others what to do. In other words, they’re instructing the judge, ‘let the governor govern, and you go ahead and judge.’
KUNM: Judge Sarah Singleton, who is the judge on this case, she has made a couple of rulings on some of these motions. Talk about the impact of those.
Proctor: If you think about the way the press interacts with the government on a broad spectrum, it is well settled law that the government cannot freeze reporters out of press conferences or kick them off their email news release distribution lists because they don’t like them. At the other end of the spectrum, you’ve got a situation where the press is not allowed to compel government speech. No reporter can force the governor into a one-on-one interview situation. And then there is this broad swath in the middle about this routine news of the day, sort of free-flowing information. What the judge has ruled is that, to the extent that the governor’s administration has created a forum for that, they don’t get to pick and choose which reporters they respond to in that space.
KUNM: The Santa Fe Reporter isn’t just asking for these public records. One of the things they’re asking for, as a result of this lawsuit, is an overhaul of the way state employees are trained to respond to public records requests and policies that would require more accountability to state public records laws. What could the outcome of the trial mean for journalists and news organizations across the state?
Proctor: The real impact of that potentially would be that an outside entity gets to monitor that practice. And that would be a pretty substantial victory, not just for journalists around the state and news organizations, but for anybody who’s requesting public records from the governor’s office. It’s pretty easy to see something like this as just journalistic navel-gazing, the press upset that it doesn’t have access to a government official who it’s written critically about. Really, this is about quite a bit more than that. First of all, the press are stand-ins for the public. And the people who are really harmed when information is frozen in the way the Reporter says it has been, are the readers of the newspaper. Government has always functioned better with the lights on than with the lights off.