COMMENTARY: The N.M. Court of Appeals has been asked to rule on whether all applications for a city manager job in New Mexico are public record. Its answer: Yes, those applications are public record.
The Court of Appeals has also been asked whether a city can keep video recordings of public meetings secret if they are made on behalf of the city by a private contractor. Its answer: No, those recordings must be released to the public.
In the second case, the Court set guidelines for when a government agency can keep documents held by a private contractor from the public. NMPolitics.net believes those guidelines clearly do not exempt city manager applications from release just because a private contractor has them.
And yet the City of Las Cruces is withholding dozens of applications for its open city manager job, asserting that the public doesn’t have the right to see them because the private contractor conducting the city’s search, not the city, has them.
That’s why NMPolitics.net is suing the city and its contract search firm, The Mercer Group, alleging a violation of the state’s Inspection of Public Records Act and seeking release of the applications.
We understand that some people believe applicants for a public job like city manager deserve confidentiality. Many believe only finalists’ applications should be released.
But the law is clear and has been affirmed by the Court of Appeals. These applications are public record. If the city doesn’t like that, it can lobby the N.M. Legislature to change the law. In the meantime, the city is flagrantly disregarding transparency in a way that threatens to set a dangerous precedent if left unchecked.
What’s next? Can a district attorney outsource an investigation into an officer-involved shooting so he or she can clear the officer of wrongdoing without showing the public the evidence to prove the shooting was justified?
No. The city’s action can’t be allowed to stand.
After we filed a formal records request, the city released 11 applications it had been given by The Mercer Group, which we took as an acknowledgement of the Court of Appeals’ 2009 ruling that city manager applications are public. Now the city is asserting that at least 40 additional applications aren’t public simply because The Mercer Group hasn’t given them to the city.
I’m sympathetic to the 11 people whose identities our records request already revealed, and to the dozens of others whose applications our lawsuit may bring to light. The city and The Mercer Group promised them confidentiality – a promise we believe those organizations should not have made and had no authority to keep. I’m sorry those people are caught up in this situation.
And I welcome a public policy discussion about whether state law should be changed to, in the future, protect the identity of applicants unless they’re named finalists. I don’t believe such an exemption should be created, but I recognize that many people disagree with me.
This lawsuit isn’t about that public policy debate. It’s about sending a message to the City of Las Cruces and all government agencies in New Mexico that they have a duty to make sure they’re following sunshine law. It’s about making clear that someone will hold them accountable when they refuse to follow the law.
Fighting for government transparency is a critical role of news organizations like NMPolitics.net. We take that right and responsibility seriously.