UNM’s Public Records ‘Particularity’ Ploy

By Daniel Libit

Where is the inflection point for shame at Scholes Hall? That’s what I still want to know.

Because it would seem like the University of New Mexico’s leadership, having taken stock of the last two years, in which the school’s disclosure practices were repudiated by government watchdogs, editorial boards, a state District Court judge and the New Mexico Attorney General — and in which UNM’s new president has “emphatically” pledged a new era of transparency — might show some modicum of contrition.

But rather, in spite of everything, UNM’s leaders have recently decided to experiment with a new way of flipping their middle fingers at the virtue of public accountability. In response, I’ve filed another public records lawsuit against the university.

(You can read the civil complaint here.)

Keep in mind: UNM just recently paid my attorneys $35,000 to be released from the public records lawsuit I filed last year against the UNM Foundation, which I won on summary judgement, and which the Foundation is now appealing. Keep in mind: in a 32-page transparency report released in September, the Attorney General condemned UNM for a “disturbing pattern of concealment and deliberate misrepresentation.” Keep in mind what school President Garnett Stokes said in response to that report: “I have emphatically expressed my willingness to work with the AG’s office to ensure that UNM is transparent, cooperative and in compliance with the law.”

Emphatically, no less.

Keep in mind the stories of former UNM Athletic Director Paul Krebs telling subordinates (and later his wife) to purge their inboxes so as to evade IPRA requests. Keep in mind how Krebs admitted in a deposition to my Foundation lawsuit that he routinely deleted emails from his university account. Keep in mind the story of how UNM’s Office of University Counsel let Krebs’ personal attorney, Gene Gallegos, a former regent, take a first pass at vetting emails the Albuquerque Journal had IPRA’d before turning them over. Keep in mind how UNM improperly redacted records that showed the school having improperly used public money to pay for private individuals to attend a 2015 booster golf trip to Scotland.

With all that in mind, consider this latest head-slapper from the state’s flagship university: a clumsy effort to reverse-engineer the undeniably pro-transparency language of the New Mexico Inspection of Public Records Act.

New Mexico Statute 14-2-5 articulates the intended purpose of IPRA, which has been on the books since 1978 [emphasis added]:

Recognizing that a representative government is dependent upon an informed electorate, the intent of the legislature in enacting the Inspection of Public Records Act is to ensure, and it is declared to be the public policy of this state, that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of public officers and employees.  It is the further intent of the legislature, and it is declared to be the public policy of this state, that to provide persons with such information is an essential function of a representative government and an integral part of the routine duties of public officers and employees.   

Section 14-2-8 lays out the procedures for requesting public records, which includes this language in subsection C:

A written request shall provide the name, address and telephone number of the person seeking access to the records and shall identify the records sought with reasonable particularity.  No person requesting records shall be required to state the reason for inspecting the records.   

In recent months, UNM has attempted to weaponize the phrase, “reasonable particularity,” and use it to create an onerous force field around the recorded conversations of its employees. As a matter of new policy, the university is now denying perfectly discernible records requests for written communications between school employees over distinct periods of time — the same kinds of requests that, for all of its past obstructionism, UNM never previously denied. It is now denying these requests by claiming that they fail to meet the standards of “reasonable particularity.” It is the school’s position, now, that unless a requester can describe the precise kind of public business university employees are discussing, the school doesn’t have to provide their communications.

It’s an insane interesting legal theory to pursue, if your mission is to obstruct at all costs, and it’s one that, left unchallenged, threatens IPRA as much as any of the other anti-transparency mashugana the university engages in. I’ve learned from other reporters covering UNM that they, too, have experienced similar denials in recent months over similar kinds of requests.

Here’s where UNM has attempted to stymie me over “reasonable particularity”:

On Nov. 15, I submitted a request through the school’s public records portal, seeking all communications since August 1 between the university’s legal staff and Paul Krebs or his lawyer, Gene Gallegos. Three days later, I received a response letter from UNM Interim Public Records Custodian Christine Landavazo, via her paralegal Christy Armijo, claiming that they could not comply with the request because I did not “identify the records sought with reasonable particularity.”

A week and a half later, UNM officially denied my request by reiterating the “reasonable particularity” claim, arguing they wouldn’t be able to identify which communications were public business and which were not, without me identifying it for them. As if there’s this long thread of text messages between Paul Krebs and UNM lawyers talking about Netflix movies and places to brunch.

What made this denial so striking is that I had submitted a nearly identical IPRA request last year, seeking emails between school lawyers and Gene Gallegos over a two-month period, and UNM furnished the records without objection.

This time, I also requested communications exchanged between Marjori Krebs, Paul’s wife and a UNM faculty member, and any employees of the UNM Foundation, since Jan. 1, 2017. If UNM’s Public Records Custodian was faithfully following IPRA, she might have begun by instructing Marjori Krebs to do an email search of all communications she sent or received to/from “@unmfund.org” recipients, since the beginning of last year. She might also have instructed Krebs to search her text messages over that period of time, to see if she had any communications with UNM Foundation staffers. Finally, Landavazo might have asked Krebs to see if she had any hard-copy communications (i.e., any anonymous letters addressed to UNM Foundation VP Larry Ryan), that might also fit the scope of the request. And if, for some reason, UNM determined it would take longer than 15 days to gather these materials, the school could have simply asked for an extension, which they quite often do.

On Nov. 16, I sought text message communications between Board of Regents Vice President Marron Lee and UNM Associate Vice President Chris Vallejos, since March 1. Once more, UNM insisted that I wasn’t providing “reasonable particularity” and asked me to amend my request to describe the specific public business the desired communications spoke to. I responded thusly:

I am seeking text messages, between these two parties, for all UNM-related business since March 1.

I shouldn’t be prohibited from receiving this breadth of material.  Are you implying that the responsive text messages would be too voluminous to provide?  That doesn’t seem reasonable.

In any case, I view your demand to winnow a perfectly legitimate records request as unduly obstructive of IPRA.  Please let me know if the University intends to press this point, or if it will provide the requested documents.

Sure enough, after two weeks of silence, UNM informed me that it was denying the request.

To those of you who don’t regularly file IPRA requests, the problem here might seem merely academic or needlessly bitchy. I assure you that it’s neither merely nor needlessly. The practical reality of public accountability is that the public doesn’t know what it doesn’t know. This axiomatic truth should not be used to then further inhibit the public’s ability to learn more about its taxpayer-funded institutions.

In the aforementioned instances (and others I’ve been told of), UNM has decided to feign ignorance and confusion, so as to make the IPRA process unnecessarily burdensome on the requester. Theirs isn’t an honest effort to locate and disclose documents, but a spiteful pushback against those who make requests. This is a big “fuck you” drawn out in misaligned legalese.

Nice try, I suppose, but it’s not the public’s burden to define for a public institution what communications between its public employees constitute public records. Nor is it the public’s burden to be Nostradamus.

New Mexico state law already defines public records as those “made or received by any agency in pursuance of law or in connection with the transaction of public business.” That’s an intentionally broad definition, but a definition nonetheless. And notwithstanding the exemptions explicitly spelled out in the IPRA statute, the law entitles the public to request and receive materials such as correspondence between UNM officials over a three-month period.

That, we know — emphatically.

What I don’t yet understand is why the university has decided now to bark up this prickly Piñon? Does this somehow date back to UNM’s enlisting of outside counsel last November, for the purposing of providing advice in “connection with questions concerning compliance and possible (amendments) to the Inspection of Public Records Act”? Does the timing relate to the recent hiring of new University Counsel Loretta Martinez? Does it have something to do with the forthcoming changes to the power structure of UNM’s Board of Regents?

I’ve since made some additional IPRA requests in an effort to find out more. You know: accountability, transparency and all that jazz.

In any case, as my lawsuit progresses, it’s likely we’ll get to the bottom of things. And, in this particular case, we won’t be at the mercy of UNM’s new system of unreasonable particularity.



Featured Image by USFWS / Wikimedia Commons