Category: Open Government

Rio Grande Foundation Files Complaint Against Governor Michelle Lujan Grisham for Failing to Disclose Travel Records

Post author By Marina
Post date December 9, 2021

(Albuquerque, NM) – The Rio Grande Foundation has filed a complaint with New Mexico Attorney General Hector Balderas under New Mexico’s Inspection of Public Records Act (IPRA) alleging that Governor Michelle Lujan Grisham has failed to disclose records relating to the governor’s attendance at the United Nations Climate Change Conference in Glasgow, Scotland.

In their official capacity, Governor Lujan Grisham and members of her administration attended the conference as representatives of New Mexico. The expenses incurred for travel, food, and lodging are subject to inspection by the public, whether the expenses were paid for with taxpayer funds or otherwise. If special interests funded this excursion, the public has a right to know.

The Foundation submitted a request for records on November 1, 2021 asking for all documents related to these costs. On November 16, 2021, the request was improperly denied. The request to inspect records was expanded and a revised request was submitted on November 18, 2021 and was wrongfully denied on November 23, 2021.

According to the Inspection of Public Records Act, “public records” means all documents, papers, letters, books, maps, tapes, photographs, recordings and other materials, regardless of physical form or characteristics, that are used, created, received, maintained or held by or on behalf of any public body and relate to public business, whether or not the records are required by law to be created or maintained.

Patrick Brenner, Vice President of the Rio Grande Foundation, said “We requested all receipts and documents associated with the administration’s attendance at this international conference. Governor Michelle Lujan Grisham has acknowledged that her attendance was in her official capacity as a representative of New Mexico. As such, the records related to transportation are subject to inspection, especially if they were paid for by a special interest or foreign entity. No disclosure of any in-kind contribution can be found in the latest campaign finance report. The administration’s continued devotion to anti-transparency is deeply disturbing and undermines the public trust.”

The Foundation maintains that the Office of the Governor has improperly and wrongly withheld documents that ought to have been made available for inspection by the public. We look forward to a swift response from the Attorney General.

The original complaint can be examined here: https://riograndefoundation.org/wp-content/uploads/2021/12/Combine-December-9-2021.pdf

This press release is available in PDF format here: https://riograndefoundation.org/wp-content/uploads/2021/12/Press-Release-Attorney-General-Complaint_-Gov-MLG-Travel.pdf

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PED secretary needs to show us the data

Post author By Paul Gessing
Post date October 25, 2021

The following opinion piece appeared in the Las Cruces Sun News on Sunday, October 24, 2021.

Kurt Steinhaus has been on the job for just a month or so, but he has already put forth policies and ideas regarding New Mexico’s education system that leave us scratching our heads.

We all want our children to do better in school so that they are prepared to be productive workers and informed citizens. That is not an easy task and it is made even more difficult by the pandemic and the government’s reaction to it.

The first question is why PED has chosen not to release standardized testing data that it has from March of 2020 prior to the pandemic. Yes, only 10% of students took the test, but there is still useful information to be gleaned from the 10% that took it. That’s especially true since there will be no data available at all for 2021. We know New Mexico students began the pandemic behind their peers in other states, but New Mexico families and our education leaders deserve to have at least some insights into where things stood right before the pandemic.

More bizarre are comments Steinhaus made in early October at a Legislative Education Study Committee. When asked what New Mexico would need to do to “make New Mexico teacher salaries competitive” he claimed the state would “have to double teacher salaries.”

That is quite simply false. According to the latest data from the National Education Association, New Mexico’s average teacher pay is $54,256 annually (ranked 32nd in the nation). The highest paid teachers on average are found in New York where they make $87,069. Doubling New Mexico teacher salaries would not “make them competitive.” It would make them by far the highest paid in the nation (at nearly $110,000) in a state that has much lower taxes and living costs than does New York and others with high salaries.

Setting aside whether increasing teacher pay is warranted or effective at increasing student performance, there is simply no data backing up the idea that New Mexico should double teacher pay. Perhaps Steinhaus is not familiar with what New Mexico teachers make or past efforts to recruit and offer enhanced pay to high performing teachers.

And then there are the state’s revised social studies standards which clearly were “in progress” during (prior Secretary) Ryan Stewart’s time at PED but were recently released under Steinhaus. Whether you can call the new, much more prescriptive standards “critical race theory” or not is open to question, but there are concerning elements to be found in the new standards.

Throughout the new curriculum there is a focus not simply on geography, human development and historical facts and events and their relevance for us today. If adopted, the curriculum will intently focus on differences, rather than the similarities among various racial and ethnic groups. Talk of inequity (unequal outcome for different groups) will replace equality under the law. The general trend in the new standards is away from presenting the facts and asking students to come to their own conclusions to instead hammering approved beliefs on everything from gun control and “destruction and occupation” of the Americas by the Spaniards into students.

There is currently a public comment period on these standards going on through Nov. 12. Please look at them and submit your own comments today.

Secretary Steinhaus does not have an easy job and we understand that. But, our schools need a focused, data-driven approach to improve student outcomes. If paying teachers more will improve outcomes, let’s see the data. And rather than teaching watered-down CRT, let’s focus on teaching basic historical events and not spinning them to make America look like a hive of inequality and injustice.

Paul J. Gessing is president of New Mexico’s Rio Grande Foundation. The Rio Grande Foundation is an independent, nonpartisan, tax-exempt research and educational organization dedicated to promoting prosperity for New Mexico based on principles of limited government, economic freedom and individual responsibility.

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Talking APS property tax with KOAT Channel 7

Post author By Paul Gessing
Post date October 1, 2021

As discussed in a recent blog post here there is an Albuquerque Public Schools property tax issue on voters’ ballots this November. As seen below the ballot language certainly seems to indicate a property tax increase, but in this story for which RGF talked to KOAT Channel 7, APS claims it is NOT a tax hike.

We looked extensively on the APS website and found nothing, nor does the full ballot text on our sample ballot (find yours here) have any clues.

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RGF discusses “Monuments to Me” Sheryl Williams Stapleton edition on KOB TV

Post author By Paul Gessing
Post date August 2, 2021

Rep. Sheryl Williams Stapleton is in hot water and resigned over serious allegations of money laundering. Over a decade ago the Rio Grande Foundation questioned the practice of naming public facilities after elected officials. KOB TV interviewed RGF president Paul Gessing about the issue. Watch the full story here:

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Rio Grande Foundation Settles Public Records Lawsuit Against City of Albuquerque

Post author By Paul Gessing
Post date July 19, 2021

For Immediate Release: July 19, 2021

For further information, contact: Patrick Brenner (505) 377-6273

After eighteen months of litigation and negotiation, the Rio Grande Foundation is pleased to announce the settlement of the lawsuit related to the City of Albuquerque’s lack of transparency and openness. The actions of Mayor Tim Keller’s administration and City Clerk Ethan Watson have proven to be antithetical to the principles of open government.

The voters of Albuquerque defeated Democracy Dollars in November of 2019, and the Rio Grande Foundation’s exposure of numerous flaws in the proposal played a pivotal role in the downfall of the ballot measure. Furthermore, the Foundation filed an ethics complaint against Mayor Tim Keller for his use of the City’s website (CABQ.gov) in which he specifically called for voters to approve Democracy Dollars. Mayor Keller’s actions were found to be in violation of city ordinance by the Board of Ethics and Campaign Practices.

Following the ethics complaint, the Rio Grande Foundation requested a reasonable collection of text messages and emails sent to and from specific city employees leading up to the posting of Mayor Keller’s pleas on the city’s website to vote “YES”.

The public records request was filed under New Mexico’s Inspection of Public Records Act and was accepted by the City in December of 2019. After dutifully paying the invoice to receive these records, the City of Albuquerque failed to provide all responsive records for over ten months. Patrick Brenner, the Foundation’s policy analyst, filed the original request.

On May 12, 2020, after exhausting all other avenues to obtain these public records, which included assistance from the New Mexico Foundation for Open Government when Director Melanie Majors sent a letter of complaint to no avail, the Rio Grande Foundation filed a legal complaint in District Court against the city.

Repeated requests from the Foundation to confirm that these records were not being deleted had been continually ignored by Ethan Watson, City Clerk, and the Custodian of Records, Yvette Gurule.

During mediation, the Foundation also tried to address the city’s responsiveness to open government requests. After being presented with specific policy recommendations, the city refused to improve the process, leaving in place the glaring problems that resulted in the months-long delays. Rather, the city offered a sizable settlement that the Rio Grande Foundation will use to further its open government advocacy and transparency efforts.

In the interest of transparency, the Rio Grande Foundation is making the settlement agreement available here.

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Las Cruces Sun-News column: New Mexico’s COVID-19 response failed on important metrics

Post author By Paul Gessing
Post date June 28, 2021

This article appeared in the Las Cruces Sun-News on June 27, 2021. With COVID and the Gov.’s COVID policies at last receding, the race is on to determine how effective or ineffective our Gov.’s lockdown policies really were. Our analysis is below:

After nearly 16 months of COVID-19 and related policies, New Mexico is finally reopening on July 1. Recently, New Mexico Education Secretary Ryan Stewart who spent most of the pandemic in Philadelphia “leading” his department remotely, wrote what I can only describe as a delusional defense of New Mexico schools’ response to COVID-19.

The article discusses at length his department’s efforts to get staff vaccinated and keep staff and students “safe” during the pandemic, but honestly, we already knew that. Way back in October of 2020 Brown University economist Emily Oster writing in The Atlantic, noted “Schools Aren’t Super-Spreaders.”

And, while COVID-19 outbreaks occasionally interrupted in-person schooling throughout the pandemic, there is zero evidence that schools that remained open to in-person learning throughout Europe and the U.S. resulted in the virus spreading to teachers, let alone increased rate of teacher deaths. New Mexico students should have been in school, in-person all along.

Here in New Mexico they were not; in fact, most students had been out of their classrooms full-time for more than a year when the PED completely reopened the schools on April 5. And, according to Burbio, a site tracking school reopenings during COVID-19, New Mexico students lost the fifth-most classroom time of any in the nation.

We don’t know exactly how much harm this loss of in-person schooling will do to our children, but education experts agree that it will be harmful. We may not know just how harmful for some time as the state waived its standardized test requirement.

And, as if we need to be reminded, we know that New Mexico students were already badly trailing their peers in other states. The Kids Count annual report ranked New Mexico’s education performance 50th before the pandemic.

Because of the challenges New Mexico’s young people already face relative to their peers in other states and because Secretary Stewart recently took a “victory lap” relating to the administration’s performance, it was particularly important to take a closer look at the data. But, the administration’s foolish policies toward New Mexico children don’t stop there.

Mandating masks for student athletes, especially those participating in outdoor, non-contact and naturally social distanced programs such as youth baseball and softball, golf, and cross-country is absurd. Dana Gillmer, director of the United States Specialty Sports Association recently told Rio Grande Foundation that to his knowledge, “New Mexico is the only state in the country still requiring youth participants to wear masks while actively participating in these sports.”

Focusing on the impact of this administration’s COVID-19 policies on our children is important for many reasons, but it is not a platitude to say that children are our future and that in the last decade, New Mexico has been losing young people to other states. Anecdotally, that trend was accelerated during the pandemic.

But, COVID-19 and the administration’s lockdown response impacted all of us. While they deserve credit for rolling out the vaccine, the Lujan Grisham lockdown didn’t do much to save New Mexican lives. According to WorldoMeters, our state had the 13th-highest COVID-19 death rate among US states.

And, according to Wallethub, New Mexico’s unemployment rate which was high before the pandemic, has experienced one of the slowest recoveries in the nation from COVID-19.

As New Mexico continues to reopen and COVID-19 recedes into the background (and the 2022 election approaches), the administration’s response to COVID-19 will be a major issue. According to the data (aside from vaccinations) Lujan Grisham’s response has been wanting.

The Rio Grande Foundation is an independent, non-partisan, tax-exempt research and educational organization dedicated to promoting prosperity for New Mexico based on principles of limited government, economic freedom and individual responsibility.

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Thankfully, Anthony Fauci didn’t delete his emails like Gov. Lujan Grisham

Post author By Marina
Post date June 11, 2021

This article first appeared in The Center Square on June 4th, 2021.

Anthony Fauci’s emails have been released, and they tell an interesting tale about the government’s handling of the COVID-19 pandemic. One particular email stood out to me from Fauci to Sylvia Burwell discussing masks.

Within the body of the email, Fauci asserts that the use of masks in a public setting is generally to prevent infected individuals from spreading a virus. More specifically, he writes that the “typical mask you buy in the drug store is not really effective in keeping out virus, which is small enough to pass through the material.” This email was sent on February 5, 2020.

If the drug-store masks are ineffective, why were they forced on the general population for over a year? Did masks help contain the spread of COVID-19 at all? What else do we not know?

But I’m not here to argue about the efficacy of masks and Fauci’s handling of the pandemic. I’m here to emphasize the importance of why we are able to have this discussion today: open government and transparency.

Without access to these documents, the country might not have ever known to ask these questions. This is significant as we can analyze the events in early 2020 in a new light. Most importantly, we can hold individuals accountable if they recommended policies that were known not to be effective.

Here in New Mexico, we have a different ongoing dilemma, one that is also rooted in transparency. Thanks to the initial efforts of Searchlight New Mexico, the additional whistleblowers that have come forward since the initial Searchlight report, and some well-timed public records requests submitted by yours truly, we know that Governor Michelle Lujan Grisham and her administration are still actively depriving the people of New Mexico access to public documents through permanent and automatic deletion.

In January of this year, a directive from the governor’s office was implemented by the New Mexico Department of Information Technology: delete all messages after 24 hours. This directive came before the governor’s press secretary acknowledged the use of a creative new term: “transitory.”

The deleted messages were broadly considered “transitory” in nature, a definition that has already been debunked in the context of transparency and is not a qualified exception under the Inspection of Public Records Act (IPRA), New Mexico’s government transparency law.

“Transitory” messages have been unofficially described as “employee banter, routine check-ins between workers and other insignificant exchanges.” The rub is that they’re all public documents and subject to inspection requests, regardless of whatever “transitory” qualification they try to apply.

Fauci could have used the same term to describe his seemingly innocuous email to Burwell about masks. What if Fauci had deleted that email because it was “just transitory”?

All this and the responses from Michelle Lujan Grisham’s office that there are “no records responsive to your request” underlines a seriously dangerous trend and contemptuous attitude within the Governor’s administration. The widespread and systematic “paper shredder” policy is nothing short of criminal.

New Mexico’s Attorney General agrees: “public bodies acquiring information should keep in mind that the records they keep generally are subject to public inspection.”

The governor’s press secretary Nora Sackett said that the governor takes transparency and open government “very seriously.” If that’s true, then Michelle Lujan Grisham’s administration and all New Mexico state agencies should shed their cloaks of secrecy and immediately stop the destruction of public documents.

This is a clear assault on the people’s ability to keep a watchful eye on their elected government and should be alarming to everyone, especially those who care for our democracy.

And remember, democracy dies in darkness.

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CYFD’s “transitory” copout: the latest attempt to deny, defame, and delay

Post author By Marina
Post date June 11, 2021

This article first appeared in The Center Square on May 24th, 2021.

As the far-left solidifies its stranglehold on all branches of New Mexico’s state government, more than ever we need an aggressive media and informed constituency to demand accountability in a system proven to produce abuses without. These abuses have never been more readily apparent than in the aftermath of a recent Searchlight New Mexico investigation.

In May 2021, the New Mexico Children, Youth and Families Department fired two high-level employees. Their terminations came after the two employees raised concerns about the agency’s recent shift to the use of encryption and the automated destruction of public records.

The department recently transitioned to the secure text messaging app Signal to discuss a wide range of official business, including the state’s response to the COVID-19 pandemic and the care of children in state custody. Officials asserted that they relied on Signal primarily for “transitory communications”. But what is “transitory” in the context of the Inspection of Public Records Act (IPRA), the state’s public records law?

CYFD Secretary Brian Blalock defines transitory communications as “employee banter, routine check-ins between workers and other insignificant exchanges not subject to public records laws”.

However, the New Mexico Attorney General’s IPRA guide addresses exceptions generally: “Because of the presumption in favor of the right to inspect, public bodies acquiring information should keep in mind that the records they keep generally are subject to public inspection.”

Wait: I’m confused. IPRA itself makes no explicit mention of the term “transitory”. In fact, IPRA only mentions a few and very specific exceptions under select qualified circumstances where a record is not to be disclosed. These exceptions include matters that fall under attorney-client privilege, certain personnel records, health records, and “protected personal identifier information” such as social security numbers and birth dates, as well as a few others.

These are reasonable exemptions to protect certain information of citizens. What does this mean? It means that no government agency will turn over your social security number to a requester. If a record contains a social security number, the number is redacted. This protects the privacy of citizens.

And protecting the privacy of citizens in this way is a good thing. One of the greatest freedoms we have is the freedom from interference or intrusion, the right “to be let alone,” a formulation cited by Louis Brandeis and Samuel Warren in 1890. Remember: transparency is for the government, privacy is for the citizens.

But CYFD employees are employed by a government agency. Do they have a right to privacy? In the conduct of their job, the law says no.

Obtaining public records from government agencies can be a difficult task. Sometimes the custodians are great people, they do their jobs well, and they make the request process easy. But other agencies put up roadblocks where litigation often becomes an unavoidable outcome

If it was already difficult to obtain certain records, what happens if the agency moves to a platform where text messages are encrypted and automatically deleted? That task is now impossible.

According to the law, these text messages constitute public records, regardless of how “transitory” they are in nature.

The New Mexico Attorney General’s IPRA guide offers insight to contradict the “transitory” qualification: “‘public records’ means all documents, […] regardless of physical form or characteristics, that are used, created, received, maintained or held by or on behalf of any public body and relate to public business, whether or not the records are required by law to be created or maintained”.

With CYFD setting a dangerous precedent, the governor’s office offered similar advice. “Every single text message that you send or receive likely qualifies as a ‘transitory record,’” the official guidance counsels. “We recommend that you delete all text messages which are ‘transitory records’ every ten days. You may delete them more often if you wish.”

This reminds me of George Orwell’s memory holes from his groundbreaking novel 1984:

“When one knew that any document was due for destruction, or even when one saw a scrap of waste paper lying about, it was an automatic action to lift the flap of the nearest memory hole and drop it in, whereupon it would be whirled away on a current of warm air to the enormous furnaces which were hidden somewhere in the recesses of the building.”

Well, it’s 2021 and I hate to be the bearer of bad news, but the obligation to provide these records to requesters has not been absolved. Denying access to records, defaming those who stand up, and delaying a solution to the problem undermines the already troubled credibility of government institutions and their leaders.

Let us conclude with the most important question of all: why would records need to be destroyed if there wasn’t something to hide?

Patrick Brenner is the Vice President of the Rio Grande Foundation, New Mexico’s free-market research institute and think tank. He leads the Foundation’s open government and second amendment efforts.

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Media uses RGF information to ask MLG health advisor tough questions on “the science”

Post author By Paul Gessing
Post date April 22, 2021

The Rio Grande Foundation recently gained access to the transcript of a deposition on the Gov.’s decision making process relating to COVID 19 and found “the science” to be lacking. Channel 4 KOB TV’s Patrick Hayes used this information to ask the Gov.’s health advisor David Scrase some questions during the press conference this week. As you can see from the story, Scrase doesn’t exactly answer the question about “the science.”

You can see the full story below:

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Is New Mexico REALLY “Following the Science” on COVID?

Post author By Paul Gessing
Post date April 20, 2021

Recently (on February 29, 2021), Tracie Collins, M.D., New Mexico Secretary of Health was deposed in a case in US brought by various businesses that have opposed the Gov.’s lockdown policies relating to COVID 19.

The Deposition was videotaped, so we can provide broadcast news outlets (or even just YouTube and similar platforms) with clips. Here is the full transcript of Collins’ deposition.

Key Take-aways:

The Department of Health does not consider the economic impact of lockdowns in crafting its Public Health Orders.
The Department of Health does not adjust “positive COVID test” results to account for false positive tests.
The Department of Health cannot explain why Florida and Texas, which are not locked down, have lower COVID fatality rates than New Mexico. The experiences of other states are not considered by the Secretary or the New Mexico Department of Health in crafting the Public Health Orders.
The Department of Health does not take into consideration other adverse health impacts, like increased depression, suicide, and childhood obesity in crafting the Public Health Orders.
The Secretary places significant reliance on the Department of Health’s legal staff when crafting the Public Health Orders. She does not know if any of the Department’s lawyers have any training or education in public health.
The Secretary is unaware of any scientific studies that support the specific restrictions, prohibitions, and permitted activities under the Public Health Orders.
The Secretary cannot say whether the risk from COVID must be zero, before the Public Health Orders will end.

Below are Page and Line references to deposition testimony:

Data and Experience from other States “can” be considered in crafting New Mexico’s Public Health Orders, but Secretary Collins will not say that it “should” be considered. See, page 11, line 2 to line 14 (“11:2 – 14”)

The Department of Health has minimized economic harm from the shutdowns by reducing morbidity and mortality from COVID-19 and keeping people alive so that they will have an opportunity at some time in the future to reopen their business. See page 32, line 24 to page 34, line 5 (“32:24 – 34:5”)

The Department does not track or control for false positive tests, or make adjustments to their numbers based on the presence of false positive tests. 34:11 – 37:17; and 37:21 – 41:11

The Secretary cannot explain why Florida and South Dakota, which are not locked down, have a lower COVID-related fatality rate than New Mexico. Nor is she interested in using such data to determine whether lockdowns work. 48:3 – 53:19

The Secretary does not know why New Mexico has not done a regression analysis to determine whether the shutdown orders have had a positive impact on COVID transmission rates. 54:2 – 56:2

The Secretary is not aware of New Mexico attempting any other analysis of the adverse economic impact of the shutdown orders. She does not know if the State has done anything to consider the economic cost and damage caused by the shutdown orders. She does not know if the economic costs and damages arising from the shutdown orders is significant. 57:15 – 58:22; and 100:15 – 20

The Secretary does not know what adverse health consequences have arisen as a result of having to close business and losing jobs. The Secretary has done no study regarding the adverse health consequences caused by lockdowns (increased depression, suicide, childhood obestity, etc.). 58:23 – 63:3

The Secretary is not aware of any studies that the business activities that are permitted under the Public Health Orders are less risky than the business activities that have been prohibited. 63:4 – 64:7

The Secretary would have to confer with the Department’s general counsel (i.e., its lawyers) to understand why certain businesses, like TopGolf and New Mexico United are allowed to operate, and others are not. 64:8 – 66:13

The Public Health Orders do not consider the potential harm or damage to the businesses that are being closed. The Secretary does not know who, if anyone, in State government is supposed to look at the cost and damage to the businesses and people subject to the Public Health Orders. 67:10 – 69:1

The fatality rate from COVID for children ages 5 to 14 is 0.001%, or 1 out of every 100,000 children who contract the virus. For children age 19 and under, the fatality rate is 0.003% or 3 out of every 100,000 children who contract the virus. This is lower than the fatality rates for other infectious diseases. 69:4 – 70:4.

New Mexico has not studied the effect of the pandemic on childhood obesity. 72:20 – 74:13

The Secretary is unaware of any studies by the Department of Health of the impact of play deprivation on children resulting from the lockdowns and public health orders. 80:11 – 82:4

The Secretary cannot say whether the Public Health Orders will continue until the risk of COVID is zero. 82:5 – 83:5

In general, other factors such as adverse health consequences to children and adults and adverse economic impacts on businesses and employees are not taken into consideration by the Department or the Secretary when it comes to the contents of the Public Health Orders. 84:5 – 85:8.

Decisions about which businesses are in what category in the Public Health Orders is determined by the legal department working with the Secretary. The Secretary does not know if there is a “written trail” for the decision as to which type of businesses will go in which category; nor does she know if any of the lawyers in her department have any education in public health. 89:1 – 18

The Secretary is unaware of any analysis or studies that were performed before gyms, group fitness classes, skating rinks, bowling alleys, and personal trainers were taken off the “prohibited from opening list” in the Public Health Order, to the permitted to open under limited capacity list. 93:23 – 94:14

The Secretary would have to confer with the Department’s lawyers before she could say how an industry or particular business activity can have its category or definition changed and be allowed to open. 94:15 – 95:7.

The Secretary would have to confer with the Department’s lawyers to understand why some business that cannot practice social distancing, like massage parlors, barbershops and nail salons are open, while other businesses, like trampoline parks and other “close-contact recreational facilities” where the Department is concerned about social distancing, are closed. 100:21 -101:23.