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Wednesday, July 20, 2011

ACLU-NM Sues Secretary of State Dianna Duran for Violating Open Records Law

DownloadedFile Gov. Susana Martinez and her GOP cohorts in New Mexico -- like Secretary of State Dianna Duran -- seem to really get off on talking a good game about the importance of government transparency, but all too often they don't follow their own advice about how an open government should operate. Is "transparency" just another handy buzzword to use within their never-ending campaign mode that seems to be a continuing substitute for actually governing the state and working to solve the myriad of genuine problems we face? Sure seems like it.

One more example of their hypocrisy: Today, the American Civil Liberties Union of New Mexico (ACLU-NM) filed a lawsuit in the Second Judicial District Court against Secretary of State Dianna Duran, alleging that she violated open records law by concealing public information regarding alleged voting irregularities. On March 15, 2011, as the legislature debated controversial voter ID legislation, Duran announced her office had uncovered proof that 37 undocumented immigrants cast ballots in New Mexico elections.

The following day, the ACLU-NM filed an Information and Public Records Act (IPRA) request to independently verify these serious allegations. Duran’s office unlawfully concealed many of the requested documents, claiming “executive privilege,” and redacted many emails so heavily that they were rendered useless.

“These sorts of hit-and-run allegations are reckless and irresponsible,” said ACLU-NM Executive Director Peter Simonson. “Without offering any proof, the Secretary of State has undermined the public’s confidence in our elections system while hiding the evidence for her claims behind the cloak of executive privilege.”

On rare occasions and under narrowly defined circumstances, government officials are permitted to withhold some types of information under “executive privilege,” according to the ACLU-NM. However, in recent years officials have abused executive privilege, using it to conceal public information that could prove embarrassing or politically inconvenient. In her first executive order as governor, Susana Martinez severely limited the use of executive privilege, proclaiming that “access to public information should be the rule, and denial thereof the exception…”

Duran made the exception the rule, making liberal use of executive privilege to withhold public voting records and official correspondence from the ACLU-NM and several journalists. In a response to journalist Heath Haussamen’s attempt to acquire these same records, the New Mexico Tax and Revenue Department affirmed Duran’s improper use of executive privilege, stating:

“We should be clear it is our understanding that these same emails were requested from the Secretary of State and they chose to assert executive privilege over some or all parts of these emails. The Department does not feel executive privilege can be asserted, or would appropriately apply over these emails.”

“It is disappointing that our Secretary of State would go to such extraordinary lengths to hide important public records from New Mexicans,” said ACLU-NM Staff Attorney Alexandra Freedman Smith. “Governor Martinez promised that her administration would usher in a new era of openness and transparency in New Mexico government. It’s a shame that Diana Duran does not share the governor’s commitment.”

Staff Attorney Alexandra Freedman Smith, Co-Legal Director Maureen Sanders and Cooperating Attorney Ed Macy represent the ACLU of New Mexico in this case.

A full copy of the ACLU-NM legal complaint against is available online: ACLU v. Duran

Where's the Beef, Dianna?
This past Friday, SOS Duran was grilled by members of the legislature's Courts, Corrections and Justice interim committee about her allegations that she had "proof" that 37 undocumented New Mexicans fraudulently cast ballots in elections in the state. She was also confronted about her decision to turn over 64,000 names of people she characterized as potentially fraudulent voters to the Department of Public Safety with the implication that criminal acts had been committed.

Duran suddenly claimed she wasn't really looking for "voter fraud" in these instances, but merely trying to make sure New Mexico's voter rolls were accurate. This despite her numerous accusatory statements in the past clearly claiming she had uncovered extensive "voter fraud" -- especially among New Mexico's immigrant population. 

Of course if Duran were really trying to find the facts -- instead of using the same dog-whistle tactics employed by Gov. Martinez to rile up the right-wing tea party crowd about those nasty immigrants -- she would be all for revealing the "proof" she has cited -- as well as using the expertise of the state's county clerks to get at the truth. Instead she seems determined to drag her feet as long as possible so she can keep nurturing wedge issue angst without having to show the public any real evidence to back up what she is alleging. As is often the case, her lies are now turning back on themselves to the point that she seems to be backtracking on her VOTER FRAUD! claims. Has she lied herself into a corner?

Even the right-wingers on the Albuquerque Journal editorial board are incensed over her behavior. In an editorial published this past Sunday, the board took Duran to task in no uncertain terms for her refusal to turn over documents the public has a right to see unless they are "redacted" to the point of nothingness.

Duran has surely heard the well-worn phrase “seeing is believing.” And seeing her office redact line after line after line in letter after letter in her investigation of irregularities in voter files does not position her in the eyes of the public as the champion of transparency she claimed to be while campaigning.

... Duran’s office claims releasing the information now “will compromise the Secretary of State’s decision-making process.” She says she will release some of it after her investigation is complete. That’s not executive privilege; that’s situational censorship [emphasis added].

It's long past the time that SOS Duran should be showing us the "beef" to back up her claims, or admitting she basically made the whole thing up to score political points. Let's hope that the ACLU-NM complaint can pry some of the documents in question out of Duran's office so that at least some of facts in this matter can see the light of day.

July 20, 2011 at 02:52 PM in Civil Liberties, Dianna Duran, Election Reform & Voting, Legal Issues, NM Legislature 2011, Susana Martinez, Transparency | Permalink