Norm Gaume believes the state is wrong and does not want you to know it.
The former director of the Interstate Stream Commission says data reveals errors undermining the state’s case for spending billions of dollars to divert water from the Gila River, which for now runs freely through southwestern New Mexico.
But when Gaume asked last December for a copy of a spreadsheet to better understand the state’s position, the commission required him to sign an agreement that would prohibit him from using the data for “political purposes.”
Gaume’s research has become an example of how just a few words buried in New Mexico law give state agencies broad discretion to deny members of the public access to information by prohibiting any use that could be construed as advocacy.
Advocates for open government say the restriction is not just a barrier to public information but a violation of civil rights that muffles criticism of the government.
Now a legislator from Galisteo is proposing to change the law.
“We shouldn’t make people go to court to exercise their First Amendment rights,” says Rep. Matthew McQueen, a Democrat, who has introduced House Bill 227 to strike the restrictions on using public data for political purposes.
State databases are considered public records under New Mexico law but with a range of exceptions and restrictions.
Agencies can require, for example, that anyone asking for a copy of a database guarantee they will not make copies without authorization or use the data for commercial or political purposes.
The law does not define “political purposes,” giving agencies plenty of leeway to decide how public data can be used.
Gaume ran up against that part of the law when he began to question data in a spreadsheet from the Interstate Stream Commission. A leading critic of the proposal to divert water from the Gila River, Gaume said he asked the agency to give him an “unlocked” copy of the spreadsheet, which would allow him to see the formulas that generated the data.
The Interstate Stream Commission replied that it considered the spreadsheet to be a database and asked Gaume agree to restrictions on its use.
At first, Gaume thought the ban on political use might have something to do with election campaigns — stopping candidates or parties from scraping up data for mailers and automated calls.
But, Gaume says, the commission considered his advocacy to be political, too, and he declined to sign the agreement.
Open government groups argue Gaume’s case demonstrates that state officials can easily use the law to exempt themselves from scrutiny.
“Removing the political purpose language is critically important. Requiring someone to sign a release saying a database won’t be used for ‘political purposes’ is a violation of that perosn’s civil rights under the First Amendment,” says Peter St. Cyr, executive director of the New Mexico Foundation for Open Government.
But some officials have raised concerns that McQueen’s bill might conflict with agreements between the state and the private companies that have created proprietary software to maintain some government databases, such as for court records.
Adam Marshall, a lawyer for the Reporters Committee for Freedom of the Press, said governments often exempt proprietary information such as trade secrets from open records laws rather than seek to restrict how the information is used once it is released. But, Marshall said, New Mexico’s restrictions seem to contradict the purpose of open records law.
“I don’t know of any other state public records law that does that,” he said. “You want people to have access to public records so they can participate in the political process.”
It took a powerful politician to get the spreadsheet Gaume had requested.
The Interstate Stream Commission turned the file over to U.S. Sen. Martin Heinrich, D-N.M., after he requested it from the agency last month.
“While it’s hard to imagine a dam or diversion on the Gila River that is not irresponsibly expensive as well as destructive to the economy and our environment,” Heinrich said in a statement Monday, “it’s critical that all stakeholders and the public have access to the best available data and science to make informed decisions about the best path forward.”
Gaume says the data undermines arguments that water must be diverted from the Gila to meet the needs of farmers. Unused water could be made available at a small fraction of the cost of the diversion, he argues.
A committee of the state House of Representatives is scheduled to take up McQueen’s bill on Thursday. A spokeswoman said officials from the Interstate Stream Commission had not reviewed the bill.
McQueen, who says he filed the bill after reading about Gaume’s battle with the commission in a story by New Mexico Political Report, maintains it is a simple fix to a clause in state law he sees as plainly unconstitutional.
“The statute just doesn’t make any sense,” he said.