By Daniel Libit
In a deposition earlier this month, former University of New Mexico Athletic Director Paul Krebs acknowledged that he regularly deleted work-related emails he considered to be “routine” — and that others in his department did the same.
“I delete communications,” Krebs said, according to the official transcript of the deposition. “It seemed to be helpful to keep things neat and tidy.”
Krebs was deposed by my lawyers on Nov. 7, as part of a public records lawsuit I filed against the University of New Mexico Foundation. A week prior to his deposition, the Albuquerque Journal reported on an email that Krebs had sent to two other UNM athletic department employees, instructing them to delete messages that related to the reinstatement of the school’s skiing program. The reason: so I, specifically, wouldn’t have a chance to obtain them through a public records request.
As this website previously noted — in calling for an investigation by the New Mexico Attorney General’s office into UNM’s public records practices — state law makes it a fourth-degree felony to knowingly destroy or remove public records. And the New Mexico Administrative Code, which facilitates those laws, demands that even “routine correspondence” must be maintained by a public body for an entire calendar year from the year in which those records were created.
So by what alternative legal standard did Krebs go about deciding which of his emails should be forever hidden from the public? Personal discretion, more or less.
“I made a judgment call based upon the content of the emails,” Krebs said. “My understanding is that important documents need to be retained. Day-to-day documents do not.”
My attorney, Nicholas Hart, attempted to draw Krebs out on his criteria for “routine” communications, by posing a hypothetical in which he received a message from a Lobo donor. Here’s their exchange (omitting the standard objections from UNM’s attorney, Kimberly Bell, to keep things neat and tidy):
HART: Would an email from a donor saying “I want to give this contribution to the University’s basketball program” be routine correspondence?
KREBS: I typically didn’t get that kind of email.
HART: If you did, would that be routine correspondence?
KREBS: I don’t recall getting that kind of email. I’m not going to speculate on it. I don’t recall getting emails like that.
HART: If you received an email from any donor, would you consider those emails from donors to be routine correspondence that didn’t have to be preserved?
KREBS: Depending upon the subject matter and the severity of the conversation, yes.
So, how did Krebs get this notion in his head that records he believed to be “routine” were somehow exempt from preservation? Krebs said he received “formal training” on compliance with the Inspection of Public Records Act by John Rodriguez, UNM’s records custodian, but he couldn’t recall many specifics about it. However, from this training, Krebs suggested, he understood that he could delete routine correspondence. And Krebs’ stated definition of routine correspondence is fairly broad: “daily communication on a subject matter,” he described.
Hart later asked Krebs about the emails referenced in the Journal story, in which he advised Kaley Espindola and Frank Mercogliano to delete communications related to the skiing announcement. (Incidentally, Espindola is the assigned IPRA custodian for the UNM athletic department, so she should have presumably known better.) This is where Krebs really got wrapped around the axle in his own definitional game. Behold:
HART: Is it also correct that you said “Delete this email”?
HART: Is it your position that issues related to the reinstatement of a University sports team is not a public record?
KREBS: That public record existed. The president’s — we were not erasing the president’s email. That was out there. It was readily available.
HART: Do you consider this email to be a routine email?
KREBS: I consider this email, the top part of it to be somewhat routine, yes, knowing that there was some unresolved issues that were highly sensitive that had yet to be determined.
HART: Let’s unpack that for a second. So the top part, which are these two paragraphs, these two lines, you’re saying that that part is, in your view, a routine email?
KREBS: Potentially, yes.
HART: So is it your position that it’s a routine email to instruct your other — to instruct employees of your department to delete public records?
HART: So what makes that email routine, these top two lines?
KREBS: I thought there was some — I thought in my mind there was some routine elements to it and some issues that we were working through that were highly sensitive and not ready for public consumption.
HART: What were the routine elements?
KREBS: I thought it was an appropriate thing to do at the time.
HART; My question is: What were the routine elements?
KREBS: I can’t answer that right now. I don’t know.
HART: So is it your opinion that looking at this email right now, that this is not a routine document?
KREBS: Potentially. Perhaps. It is easy in retrospect to say that.
HART: So does this email represent the type of communication that your understanding is you had the discretion to permanently delete?
HART: But you instructed employees of the Athletics Department to delete it anyway?
KREBS: Those were my instructions, yes.
HART: You also said previously that there were sensitive things in here that you felt weren’t ready for public consumption. Is that correct?
KREBS: I just said that, yes.
HART: What do you mean by “sensitive”?
KREBS: This was a very unique — there’s nothing routine about this in some respects. This was very unique, and we were working through the issue of bringing back skiing. Not all decisions had been made yet, and we were waiting until we had all the answers before we released any information, and any draft, any premature information would have been very damaging to the ski program.
HART: But is it correct that when you say “sensitive,” you don’t mean that this wasn’t a public record?
KREBS: I don’t know.
The day before Krebs’ deposition, the Journal reported on an unusual (to say the least) arrangement UNM had struck with the former AD over record requests the paper made since Krebs’ forced resignation in June. Saying that it didn’t want to violate the legal confidentiality of emails Krebs may have sent to his attorney, UNM allowed that lawyer — who happens to be a former UNM regent, Gene Gallegos — to take a first pass through Krebs’ emails and unilaterally remove documents he deemed subject to attorney-client privilege. A school spokesman told the Journal that it had no way to keep track of which emails Gallegos removed.
The New Mexico Foundation for Open Government lambasted the abdication of record-keeping responsibility and the Journal later did so as well, in an editorial. On Monday, Kimberly Bell, the UNM senior deputy counsel, responded with a guest column, in which she tried to clean up the controversy. Bell now claims that the school knows exactly what Gallegos removed (40 pages, she says) and that those records are still preserved by UNM.
If true, that leaves just one small question left to be answered on the matter: precisely how many emails did Krebs delete before then and what did they contain?
(Featured image by Vitor Sá / Flickr)