ACLU-NM Sues SOS Duran for Violating Open Records Law

ALBUQUERQUE, NM – Today, the American Civil Liberties Union (ACLU) of New Mexico 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 of New Mexico 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 occasion and under narrowly defined circumstances, government officials are permitted to withhold some types of information under “executive privilege.” 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 of New Mexico 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

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CONTACT: Micah McCoy, (505) 266-5915 x1003 or mmccoy@aclu-nm.org