On Sunday, the House of Representatives passed House Concurrent Resolution 1 on a 48 to 16 vote. And the measure, introduced just 10 days ago, passed on a 39 to 1 vote in the Senate at 11:25 p.m. on Wednesday. Because it is a resolution, it does not require the governor's signature to take effect.
Every representative and senator representing San Juan County voted in favor of the resolution except James Roger Madalena, a Jemez Pueblo Democrat who was absent, according to state voting records. Supporters included both Republicans and Democrats.
Open government advocacy groups already are challenging the resolution's validity.
Charles K. Purcell, immediate past president of the New Mexico Foundation for Open Government and director of Rodey, Dickason, Sloan, Akin and Robb PA's Albuquerque office disagrees with state legislators' assertions that email communication is protected from open records requests.
Purcell says the decision to adopt the resolution is built on a misguided interpretation of state and federal law, and creates a dangerous precedent.
"If the clause frees them from their duties under (the Inspection of Public Records Act), then it also permits them to accept bribes in exchange for their votes, run over pedestrians on their way to committee meetings, and sexually
The resolution and its supporters argue that emails are not subject to open-records requests simply because a legislator writes, sends or receives them. The legal precedent for the so-called "email shielding" is found in the New Mexico Constitution, they say. Supporters point to a section that says senators and representatives are "privileged from arrest" during attendance at legislative sessions except in cases of treason, felony and breach of the peace.
"They shall not be questioned in any other place for any speech or debate or for any vote cast in either house," the "Speech or Debate Clause adds.
That language mirrors language in the U.S. Constitution, which was meant to protect public discussion in Congress on issues of national importance, even when it becomes heated and emotional, said Aaron Mackey, a Reporters Committee on Freedom of Speech staff attorney. "The idea is you don't want to chill debate," Mackey said in a telephone interview from the group's Virginia headquarters
Purcell, in questioning the resolution's validity, cites a U.S. Supreme Court decision stating that the clause does not protect legislative activities, including emails, outside Congress. That could mean it also does not protect activities outside the Legislature.
But for Rep. Tom Taylor, R-Farmington, the issue is one of separating private and public business, and protecting communication with constituents.
"The difficulty is that (our) system of government was designed without anticipating (technological advances)," Taylor said. "The advent of technology has changed communication. Many of us choose to use our personal email accounts."
The use of personal email accounts for legislative business makes it difficult to keep personal and private business separate in the event of a public records request, Taylor said.
"Trying to separate those two things, it doesn't work," he said.
Taylor said he had tried previously to have separate email accounts for his personal business and for his business as a representative, but that the system became overly cumbersome and messages would be lost.
He said the state's "Sunshine Law," which addresses open records, was meant for the legislative process of making laws, he said, and "laws are not made through emails."
If all email communications are considered public records, it can be difficult to facilitate confidential communication with constituents, he said.
"It becomes pretty much impossible to draw the line on what is public communication and what is private," Taylor said. "It's not a matter of it being secret, it's a matter of where you draw the line."
The New Mexico Foundation for Open Government has suggested that a better approach would be to draft a bill dealing with email communication and what specific types of emails could be counted as private and exempt from public records laws. Mackey, with the Reporters Committee on Freedom of Speech, said a law could be drafted to allow redaction "instead of completely shutting down access."
Such an approach would require a formal, public process. The bill would travel through committees and be brought to the governor for approval if it passed in both the House and the Senate.
That approach, however, is not a viable option, Taylor said.
"It's very, very difficult to come up with specifics," he said.
But that lack of specificity is a problem in itself, Mackey said. For instance, he said, it is not clear what authority the resolution carries.
"It's curious as to why they chose the route of a resolution as opposed to a law, if they felt this was necessary," Mackey said. "It creates more ambiguity than it tries to solve."
Farmington city officials said the state legislature's decision has no influence on the conduct of local government, and the city's open records policy will remain the same.
"I have no intention to initiate a discussion as to whether those emails should be considered private," Mayor Tommy Roberts said. "I don't know of any exception that would apply to city emails. As far as I am concerned, emails generated at the city level are public records."
Greg Yee may be reached at firstname.lastname@example.org; 564-4606. Follow him on Twitter @GYeeDT