The district attorney in Bernalillo County earlier this month sued the administrator of the 2nd Judicial District Court in Albuquerquefor ankle monitor location data from defendants who are free on monitored pretrial release. DA Raúl Torrez told KUNM he thinks the data may place suspected violent criminals at recent murder and burglary scenes, if the court would just agree to hand it over.
Raúl Torrez: We filed in IPRA [Inspection of Public Records Act] lawsuit against the district court for failing to turn over public records and denying the request without properly identifying any articulated exception. There is a catch-all exception that's called "as otherwise provided by law," but if you read carefully through the Inspection of Public Records Act, there are a list of enumerated exceptions to the act, but these records don't fall within any of those. One of the things that I was and continue to be interested in trying to find out is not just what these individuals were doing on the day of their second felony arrest, but what about three days before that, or the week before that, or the three months before that? We have a very serious public safety and crime problem in this community. And the people who were on GPS monitoring represent individuals that we have routinely asked the court to detain and the court has chosen not to do that.
KUNM: It was reported that you took the next step of saying your office is seeking location data from all defendants out on pretrial release to check against crime reports and to weigh whether pretrial release is working as intended. How is that kind of program evaluation the job of the district attorney's office?
Torrez: It's the job of the district attorney's office to try and protect the community, number one. Number two, when you're dealing with public records, which these are clearly public records, there's never been any declaration by the courts or anyone else that these are anything other than public records, they are subject to disclosure to interested journalists, members of the community, other stakeholders in the criminal justice system. And what's interesting, I think, in this conversation, is the extent to which most people, journalists, in particular, seem very interested in the notion of accountability and transparency, which I think are the guiding principles of democratic government. And yet when it comes to where these individuals have been we don't seem to have the same level of interest.
KUNM: The Chief Public Defender in New Mexico says this effort goes too far because these records could become available not only to police and prosecutors, but to the general public, if they're available under the Inspection Of Public Records. Act. Couldn't anyone then use an IPRA request to get this kind of info?
Torrez: If there is some concern about the safety of criminal defendants that are accused mostly of violent crime, that they might be at risk, then I think the proper way to address that is potentially to propose an amendment to IPRA in the legislature, but not to do that by judicial fiat, which is what's occurred in this instance. Most other communities, certainly in this state, definitely in this country, when law enforcement and prosecutors asked for this information, the information is routinely provided. We have been told that they won't turn the information over, that they won't provide it to citizens, they won't provide it to law enforcement. And if they do provide it, that it would be held under a protective order so that none of the information about the location of these individuals can be shared with policymakers or members of the public. So it's very clearly an example of an institution deciding on its own, that it is going to create a new privacy right for a class of individuals, who historically have been held in custody pretrial. The court can and court staff, staff attorneys can believe this is something that they want to do, but that's not the way our system works. The way our system works is you either have to have a legislative authority to do that or you have to have case law that justifies it, and neither exists in this context. Now, the filing of this lawsuit could provide them the context to do it. But then I would caution those who would examine this question to think about whether or not that's a distinction that New Mexico, and only New Mexico, would want to bring to this conversation - that dangerous defendants have a privacy interest and their GPS location data - because that would create some pretty profound complications for law enforcement and also policymakers who are trying to evaluate whether or not these larger systems are being effective at protecting the public interest.
This story is part of our Your New Mexico Government project, a collaboration between KUNM Radio and New Mexico PBS. Support for public media provided by the Thornburg Foundation.
