Spirit of open government addressed at workshop

CAROL A. CLARK Monitor Senior Reporter

History, law and the spirit of open government were detailed during a workshop Tuesday hosted by specialists from the Attorney General's Office and the New Mexico Foundation for Open Government (NMFOG).

"This is an important issue to me," Attorney General Gary King told the crowd of some 40 people assembled in the Student Lecture Center on the UNM-Los Alamos campus.

"If you're an elected official and you're concerned about how something would look or how the public would perceive something - that's a good thing," King said. "I always thought before voting on something in the legislature - 'What would my mother think?'"

King said when his office receives a complaint, it sends an inquiry to the government agency requesting their side of the issue. He advised audience members to remember that when accessibility of open records is delayed, that can actually be accessibility denied.

King has been in office some four months. He is attempting to host these educational workshops throughout the state each month.

King is a member of the State Records and Archives Board. He said they are working on a policy right now as to when an e-mail is public record.

The AG's office distributed compliance guides relating to both open meetings and inspection of public records.

NMFOG Executive Director Robert Johnson presented an historical perspective of the Sunshine Act.

He described King as a "big-time supporter" of open government.

"We're here to talk about how to keep government open to the public," Johnson said. He said people may think that the founding fathers gave open government to the country through the Constitution and the First Amendment.

"What the founding fathers really gave us were the tools we need to cultivate open government," he said.

Johnson added that openness in government requires constant work and cultivation and referred to comments by former New Mexico Supreme Court Justice Gene Franchini during his keynote speech at a NMFOG banquet.

"Secrecy in a Democratic society is the antithesis to all that a representative democracy stands for," Franchini said. "It keeps the people in the dark and destroys any opportunity they have to speak out for or against any governmental action. When access to governmental activity is denied or restricted in any way and access to the opportunity to observe that activity is stopped - democracy dies."

The Sept. 11 terrorist attacks have brought new threats to open government, Johnson said. "Now we have what is commonly called the PATRIOT Act," he said. "Actually, the PATRIOT Act has very little to do with patriotism."

Johnson explained that some of the provisions of the act were written to sunset in 1995, but a compromise between the House and Senate left the Patriot Act with only minor changes.

"The FBI can still search medical, library, school and other records without a judicial warrant," he said. "And it can still conduct so-called 'sneak and peak searches' - searching your home or office without notifying you."

Federal alarms about terrorism have spilled into many state governments, including New Mexico, he said, adding that the New Mexico Legislature passed state homeland security laws in 2003 that were drafted by a working group of an assistant attorney general as well as lawyers from the state health department and the Department of Public Safety.

Their first drafts were so broad that they could have been used to close almost any record, could have been used to declare a medical emergency and quarantine people without a hearing and could even have been used to conceal the location of emergency shelters and clinics where people would be told to go in case of a terrorist attack, he said.

NMFOG later assisted the working group, at their request, to reduce a proposed amendment to the Inspection of Public Records Act from 250 all-encompassing words to 50 words limited to protecting tactical plans for countering terrorist attacks.

The draft dealing with health emergencies was tightened to include protection for the civil rights of people quarantined or isolated, with guaranteed access to lawyers, spiritual advisors, family members and the media.

"I think all of us should look with skepticism at efforts to amend the Constitution by executive order or statute and shut down civil rights," Johnson said.

He told of a three-judge panel of the 6th Circuit Court of Appeals in Cincinnati who, a few years ago ruled that the press and public have a constitutional right to watch deportation hearings for people detained as a result of the 9-11 attacks.

"Chief Judge Damon J. Keith wrote the court's opinion," Johnson said. "He put it simply and clearly - 'Democracies die behind closed doors.'"

While open government has moved mostly forward over the years, it has not been without struggles, he said. In the summer of 2000, NMFOG, the New Mexico Press Association and the Associated Press cooperated in an audit of public records in New Mexico.

"We found that records were improperly denied about 30 percent of the time - nearly one third of the time - throughout the state," he said.

"Keeping government open requires multiple efforts," Johnson said. "Much of what we have accomplished has been through the efforts of an informal coalition that includes the Attorney General's Office, the New Mexico Press Association, Common Cause, the Association of Counties, the ACLU and from time to time, the Municipal League."

The mutual goal, Johnson said, is to keep government open to the people.

[Visit the New Mexico Foundation for Open Government (NMFOG.org) website]