Lobos Warrant an IPRA Investigation

By Daniel Libit

The blessing of public officials’ incompetence is that it doesn’t yield to their deceit, although this can only serve as small comfort to the public.

I write of the latest revealed blunder of the Paul Krebs era, as reported last Sunday by the Albuquerque Journal: an email the former University of New Mexico athletic director sent to two subordinates, in early May, instructing them to delete emails so that this reporter wouldn’t be able to obtain them through a public records request. The messages revolved around the draft of a press release the school was prepping to announce the reinstatement of its skiing program, after previously stating that the sport would be abolished.

“Ok. We just need to be prepared to have libit will have [sic] this within 30 minutes,” Krebs wrote on May 11 to Sr. Associate AD Kaley Espindola and athletic spokesman Frank Mercogliano. “Suggest you delete all texts and any emails related to reinstatement skiing.  Delete this email.”

Krebs’ acute concern was unfounded: I never was pursuing this story, nor did I ever seek ski-related emails. But in his paranoiac brain fart came a nice twist of irony: Krebs forgot to delete his own email instructing others to delete theirs. (Yahtzee!) Months later, the Journal spied it in a haystack of Krebs emails Lobo reporter Geoff Grammer has fruitfully pored over since the former AD’s resignation.

At the bare minimum, the message gives compelling evidence of a criminal violation — if not multiple violations, in the event his instructions were heeded by others. (Mercogliano and Espindola did not respond over the weekend to questions about whether they made these deletions or others.)

The communications Krebs ordered expunged plainly fall within the statutory definition of public records. Tampering with public records, which includes acts of “knowingly destroying, concealing, mutilating or removing [them] without lawful authority,” is a crime, punishable as a fourth-degree felony. According to the New Mexico Administrative Code, if such communications are considered to be merely “routine correspondence”, they still must be maintained for a year from the close of the calendar in which they were created — in this case, until Jan. 1, 2019.

If Krebs so breathlessly sought to scrub drafts of a rather innocuous press release, imagine what else he might have been inclined to drag into the trash folder. And if you think this kind of move must have certainly been a fluke, I know a pizza company that would like to buy your naming rights.

This, New Mexico taxpayer, is not just the snobbish bother of a Chicago blogger — as certain Lobo apologists and school mouthpieces would have you think. This is the law of your land — a rather good law, I might add. And UNM is a $3 billion public institution funded by your tax dollars. You are as entitled to these records as I am, and even if you don’t care to see them, you should damn well care about the public record rules of your state being complied with.

Transparency, after all, is the handmaiden of accountability. And the University of New Mexico needs a reckoning on both these fronts.

Much like with its athletic department’s questionable financial practices — now the subject of three separate state inquiries — UNM has repeatedly demonstrated the need for an outside authority to oversee its adherence to the state’s disclosure laws. In this case, that job falls to state prosecutors or New Mexico Attorney General Hector Balderas, who is among those investigating Lobo athletics.

As Sunday’s Journal article elucidates, UNM’s IPRA-priety extends well beyond just Krebs. There is clearly a culture of resistance at the university when it comes to open-record laws.

On one hand, UNM says that it has been overwhelmed of late with IPRA requests. And yet, it refuses to commit more than one full-time staffer to the process of reviewing and disseminating records for this $3 billion public institution. Instead, the process is left largely up to the good graces and personal discretion of the subjects of those requests — individuals who may well have a vested interest in certain documents not materializing publicly.

“If I had a suspicion or concern that someone is not being forthcoming, I would raise that without question,” UNM Deputy Counsel Kimberly Bell told the Journal. “But I don’t think that’s happening.”

In a strong field of contenders, Bell’s is one of the more risible claims a UNM official has uttered in light of the last seven months.

Let’s wind the tape back to springtime:

On April 13, the Journal made an IPRA request for documents related to the ill-famed 2015 Scotland golf junket. Two weeks later, KRQE’s Larry Barker scooped the story that UNM had used public money to pay for three Lobo boosters to attend the trip, a potential violation of anti-donation laws.

On May 7, as the Journal would later discover, Krebs began crafting a draft resignation letter to UNM interim President Chaouki Abdallah, in which he acknowledged intentionally withholding from the media information about how the boosters’ travel expenses were paid.

On May 24, Grammer wrote to UNM, complaining that the Scotland materials he received, per his April 13 IPRA request, had been overly redacted so as to occlude the relevant information about the payments.

John Rodriguez, UNM’s public records custodian, then told the Journal for a May 25 story that “because the documents were provided by athletics and not through (his office), the redaction explanations weren’t given.”

That same day, Balderas informed the university that he would be conducting a “formal inquiry into the actions of public officials employed by UNM.” Specifically, the AG cited UNM’s failure to properly respond to Grammer’s IPRA request, as among the issues that concerned him.

Krebs submitted a formal letter of resignation to Abdallah on June 1, which did not include acknowledgement about his withholding information from reporters. Later that month, my attorney Nick Hart wrote to Bell to raise our concerns about the school’s IPRA process.

Citing Grammer’s reporting and my own myriad experiences, Hart wrote:

“At minimum, delegating the response to an employee of the University without oversight by the IPRA office or the records custodian creates the opportunity for that employee, who may lack knowledge of IPRA’s requirements, to improperly withhold or redact public records that are subject to disclosure.”

In response, Bell explained:

“UNM employees are not permitted to do their own redactions, and the very few times that an employee has attempted to redact content before providing records to Mr. Rodriguez, he has immediately informed the employee that he or she must send the fully responsive and unredacted records to him so that he can determine what may be subject to exception.”

Bell further described Grammer’s experience as “an isolated occurrence.”

Now, we know the problem is much bigger than even redactions — it’s intentional acts of withholding or destroying records. No public institution can 100-percent guarantee that each of its employees will uphold every word of IPRA, but when your legal department is shrugging while top administrators openly violate it, you have rightly lost the public’s trust.

This, mind you, is the same athletic department that was raked over the coals eight years ago after it was discovered that Lobo staffers had destroyed notes and tapes evidencing a physical altercation between former UNM football coach Mike Locksley and an assistant.

“Frankly, we’re embarrassed by the whole situation,” then UNM President David Schmidly told reporters at the time, vowing that the university would commit more seriously to transparency.

Of course, everything’s been hunkydory since.

When asked last week whether Balderas would take up the matter of investigating UNM’s IPRA practices, the AG’s spokesman, James Hallinan, gave an encouragingly non-responsive reply.

“As previously stated, the Office of the Attorney General has a pending investigation regarding the University of New Mexico,” Hallinan said in a statement, “however it would be inappropriate to comment any further regarding the matter at this time.”

We can only hope this implies that Balderas is keen to look into the problem — because look, and he shall surely find it.

On Tuesday, Krebs is scheduled to be deposed in a public records lawsuit I filed against the University of New Mexico Foundation, whose records I believe should be made subject to IPRA. The university is also named in the suit, since it is the public institution to whom these records relate.

So far, the defense has grumbled in court proceedings about the fact that I am an out-of-state litigant, as if that has any validity as a legal argument. (The Inspection of Public Records Act does not discriminate based on the home address of the requester.) Perhaps, to guardians of UNM’s cryptic status quo, disparaging me as an annoying intruder may be their best defense.

And in this way, I join in the sentiment: it shouldn’t be left solely to a blogger in Chicago to enforce the disclosure laws at the University of New Mexico.

(Featured image by Paul White / Flickr)

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