Judge finds LCS in violation of IPRA

The New Mexico Foundation for Open Government (FOG) applauds the decision by New Mexico First Judicial Court Judge Kathleen McGarry Ellenwood ruling the New Mexico Legislative Council Service (LCS) violated the Inspection of Public Records Act (IPRA) by failing to fulfill a request from Ethics Watch for public records regarding the 2021 Junior Appropriations Act.

In the suit filed in December 2021, Ethics Watch requested spreadsheets containing the complete list of appropriations and the name of the House and Senate member submitting the appropriation for the 2021 Junior Appropriations bill (the bill that allocates an amount of funds to each legislator for them to direct to projects of their choosing). The House Appropriations and Finance Committee and Senate Finance Committee compiled the spreadsheets with data about the received appropriations requests. The IPRA request that led to the lawsuit had been made by Ethics Watch earlier that October, seeking several LCS records. The LCS responded to the request but did not supply the specific records requested. In the denial, the LCS argued that Ethics Watch was not entitled to any documents because they were protected by the LCS’s confidential services statute and/or the Speech and Debate clause.  Judge Ellenwood rejected both arguments.

In her decision, Judge McGarry Ellenwood wrote, “The purpose of IPRA would be defeated if this request is denied. The legislature cannot hide behind this section to hide this information and obviously the subsequent actions by the legislature support the idea that this was not the intent of section 2-3-13.z. This is really the essence of the legislative process. There is no difference between the appropriations in the junior bill being tied to a specific legislator and a certain legislator sponsoring a bill. In each circumstance the public becomes aware of what their specific legislator is doing on their behalf.”

She also wrote, “Under a straightforward application of both the purpose and the plain language of lPRA, the requested appropriations records are public records “used, created, received, maintained and held by and on behalf of a public body that receives public funding (the Legislature). The withheld 2021 Junior appropriations-related records also clearly relate to public business because they concern legislators’ appropriations, the process by which funding priorities are determined, and the creation of the state’s annual budget. LCS also argues the Speech and Debate clause protects disclosure, but this is a stretch in this case since the information requested relates to a bill that has already been enacted.”

Daniel Yohalem, the attorney for Ethics Watch in the lawsuit, as well as a Board member and former President of NMFOG, said: “Judge Ellenwood’s decision allows taxpayers and voters to know how their legislators spend their taxes, an essential component of successful democracies.  This decision shows the power and wisdom of IPRA, dragging even the Legislature out of the shadows.”