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Newspaper’s Lawsuit Alleges Government Secrecy

Mark Woodward
Mark Zusman is sworn in on Friday, March 31, by District Court Judge Sarah Singleton.

Did Gov. Susana Martinez violate the state’s sunshine law by failing to provide public records to a Santa Fe newspaper? That’s one of two questions at the heart of a lawsuit brought by the Santa Fe Reporter against the governor. We talked about the paper’s discrimination claim in our first story. Here we dig into the lawsuit’s allegations of government secrecy. 

This whole thing started when it came to light that the governor’s top people were doing public business with their private email accounts—instead of their official work email accounts. And why does that matter? Well, the thinking is that makes it a lot easier to hide information that officials don’t want the public to know.

The governor’s chief of staff, Keith Gardner, may have said as much in a recorded conversation. Here’s the Santa Fe Reporter’s lawyer, Daniel Yohalem, reading the transcript in court last month: "Quote: 'That’s why I never email on my state email. It could come back to bite my ass. It’s all done offline.' You then say: 'I never—shit—I never use my state email because it’s all done on different stuff. I don’t want to go [to] court and jail.' "

Here’s how Gardner explained it from the stand: "I’m saying I don’t use my state system in order to do anything that’s outside the function of what I do as a member of the governor’s administration and staff. That that’s an abuse of my system, and that’s what will get me into trouble."

If Gardner didn’t do personal stuff in his official work email, what about public business in a personal email? Those messages would be covered under the state’s sunshine law, theInspection of Public Records Act. If someone—anyone—asks for it, it would have to be turned over.

Like the list of non-union teachers that a former Public Education Department spokesman emailed from his personal account to the accounts of all kinds of state government bigwigs you’ve probably heard of: Jay McCleskey, Hanna Skandera and Gardner.

"And so you have public business being conducted on private emails in exhibit 19. Is that right?" Yohalem asked.

"I didn’t call it … I wouldn’t say … It ended up … It’s defined … It depends upon how you define public business," Gardner said.

That’s arguably the state’s second-most powerful public official stumbling over a question about the definition of public business while testifying under oath.  

Credit Mark Woodward
Former Records Custodian Pamela Cason

It’s one thing to have a law that says state officials have to turn over records when they are requested. But who makes sure they dig through their personal email accounts for the public business they’ve done there? Pamela Cason was the state’s public records custodian at the time. "We would instill, I guess, kind of the fear of God into employees that these have to be responded to in a timely manner," she said in court.

Cason testified that it would have been impossible for her to search the email accounts of everyone in the Governor’s Office.

And the Santa Fe Reporter’s lawsuit says the Governor’s Office broke the state’s sunshine law seven times by failing to turn over documents. Before the trial, District Court Judge Sarah Singleton ruled on two of those claims. One went the Santa Fe Reporter’s way. One went the governor’s way. And five await her decision, which isn’t expected for weeks.

I caught up with Mark Zusman, one of the people who owns the Santa Fe Reporter, in the hallway outside the courtroom. "We strongly believe that you cannot do watchdog, enterprise, investigative reporting without source documents," he said.

In the four decades that Zusman’s been a journalist, he said, there has never been a more important moment for reporters to be free to fulfill the watchdog roll. "I think this goes right to the heart of: How transparent does government have to be?"

After questions about her administration’s use of private email accounts came to light, Gov. Martinez ordered her staff to use their official work accounts for public business. She’s also using taxpayer dollars to hire a private contract attorney to defend her and her staff in court. I waited outside the courtroom to ask lawyer Paul Kennedy how much money he’s making on the case.

"Can you tell us how much you got paid for this?"

"You know, I’m not authorized to comment on this matter at all, so you’ll have to contact the governor’s comms people," Kennedy said.

Contact the governor’s communications people? We did. They told us to file a public records request, and we did that, too. We’ll let you know if we find out.  

A decision from District Court judge Sarah Singleton isn’t expected for weeks. No matter which way it goes, it’ll likely be appealed.


This coverage was reported jointly for KUNM and for the Santa Fe Reporter.

Marisa Demarco began a career in radio at KUNM News in late 2013 and covered public health for much of her time at the station. During the pandemic, she is also the executive producer for Your NM Government and No More Normal, shows focused on the varied impacts of COVID-19 and community response, as well as racial and social justice. She joined Source New Mexico as editor-in-chief in 2021.
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