Roundhouse Roundup: Executive Privilege -- Down But Not Out

A version of this was published in The Santa Fe New Mexican 
Jan. 22 2012

Only minutes after Gov. Susana Martinez was inaugurated — just after midnight on New Year’s Day last year — she signed an executive order stating that unlike her predecessor Bill Richardson, under her administration “executive privilege” no longer would be used as an excuse to withhold documents that might be embarrassing to public officials.

The order states that “access to public information should be the rule and the denial thereof an exception.” And the order established a policy that any agency under the governor’s control that wants to invoke executive privilege to deny releasing documents must receive written authorization from the Governor’s Office.

Journalists and others concerned about openness in government were happy about the order. But some cynics among us sarcastically scoffed, “I wonder how long this will last.”

Now, one year later, an environmental group that last month made a public-information request to the state Energy, Minerals and Natural Resources Department doesn’t think Martinez’s office is living up to that high-minded executive order.

Conservation Voters New Mexico on Dec. 16 requested several of the documents — mostly emails and memos dealing with the controversial pit rule.

This rule governs how oil and gas producers handle waste from drilling operations. Martinez wants the rule, which was implemented by Richardson’s administration, to be repealed. The Conservation Voters want to keep it.

The department denied most of the documents that had been requested. Some of the denials were based on attorney/client privilege. Fair enough. But others were denied solely on the basis of executive privilege.

That response prompted Leanne Leith, Conservation Voters’ political director, to file a follow-up public-information request. She asked the Governor’s Office for copies of the written authorizations for executive privilege denials — not just from Energy, Minerals and Natural Resources but from several other departments as well.

Leith got a reply: “We have reviewed your request and the Office of the Governor does not hold any responsive documents,” the governor’s records custodian, Pamela Cason, wrote in a Jan. 13 email.

I asked Martinez’s spokesman Scott Darnell how all this squared with Martinez’s executive order.

“As you know, throughout the administration, executive privilege is asserted sparingly,” Darnell said Wednesday. “I will look into this situation further, but these documents have not yet been reviewed by the Governor’s Office for executive privilege.”

He said Energy, Minerals and Natural Resources staffers felt they should immediately produce the documents that they knew didn’t fall under executive privilege while the others were still being reviewed.

Said Darnell, “That is not the procedure that is regularly followed, and we have addressed this issue with them. We will work to ensure that all of [the department’s] responsive documents are examined by our office quickly, and any documents not deemed to be executive privilege by the Governor’s Office will be provided to the requestor.”

Sarah Welsh, executive director of New Mexico Foundation for Open Government, agreed with Darnell that Martinez’s office has used “executive privilege” infrequently.

As for complying with the state’s Inspection of Public Records Act, Welsh said, “The Martinez administration has been really good, particularly with requests made to their office.”

As for those executive-privilege claims by the Energy, Minerals and Natural Resources, we’ll just have to wait and see how those turn out.