Richardson's office denies NMI records request citing 'executive privilege'
AG's office says 'scope of the privilege is undecided'
By Trip Jennings 6/10/09 12:00 AM
bill-richardson-official-photo2
New Mexico Gov. Bill Richardson
Want to know if Gov. Bill Richardson met with the son of a friend and
prominent fundraiser before the state decided to invest in a fund that
ultimately cost New Mexico $90 million?
Good luck.
The Independent sought to view documents from the governor's office from
January through August 2006 that would have divulged with whom he had met
in the months prior to the costly investment that benefitted the son of the
governor's friend to the tune of millions of dollars.
But the governor's office isn't saying or allowing access to the documents.
Its rationale: The governor's calendars, datebooks and other documents that
would shed light on his schedule are protected by executive privilege.
Executive privilege is a legal concept that allows a governor or officials
at executive agencies to refuse to turn over information on the basis that
its disclosure would harm the integrity of the decision-making process.
The theory behind the protection is that by guaranteeing confidentiality,
the government will receive better or more candid advice, recommendations
and opinions, resulting in better decisions. This deliberative process
privilege is often in dynamic tension with the principle of transparency in
government. And that turns out to be a central tension in New Mexico law.
A guide put out by the New Mexico Attorney General on the state's
Inspection of Public Records Act explains that executive privilege is meant
to protect the content of the advice given to the governor by advisers.
But how far the privilege extends ¡X say for example, to the identities of
the advisers ¡X is an unanswered question in New Mexico law, said Al Lama,
Attorney General Gary King's chief deputy.
"The scope of the privilege is undecided," Lama said. "The recognition of
privilege in New Mexico is to safeguard the executive's decision-making
process and a court has not determined that disclosure of who the governor
met with is or is not confidential."
The governor's office did not respond when the Independent asked for a more
thorough explanation of its use of executive privilege.
The Independent's goal was to see if Richardson had met with Marc Correra,
the son of Anthony Correra, a Richardson friend, in the months prior to two
state boards investing in $90 million with Vanderbilt Financial Trust. The
state lost all $90 million in the investment. Correra is said to have been
paid $2 million as a third-party marketer, a kind of middleman in the
investment world.
While the broadness of executive privilege is an open legal question, New
Mexico Senate President Pro Tem Tim Jennings, D-Roswell, said Richardson
must be transparent if he wants to alleviate public concerns about how
business is done in New Mexico.
In recent months the Richardson administration has found itself under
scrutiny. Federal prosecutors are investigating pay-to-play allegations in
a deal between a state agency ¡X the New Mexico Finance Authority ¡X and a
California contributor to two political committees started by Richardson.
The investigation cost Richardson a seat in President Obama's cabinet.
At the same time the state's two investment boards ¡V the State Investment
Council and the Educational Retirement Board ¡V have been subpoenaed by the
U.S. Attorney's Office in another inquiry related to a scandal in New York.
The New York probe has uncovered questionable practices in New Mexico that
appeared to expose the sometimes-blurry line between influence peddling and
the legitimate service in the investment world that third-party marketers
perform for money managers.
Among the allegations: The founder of New Mexico's former financial
adviser, Aldus Equity, helped the son of the New York state comptroller,
Alan Hevesi, win a lucrative contract in New Mexico for a firm he was
representing in return for Aldus' increased business in New York, according
to a criminal complaint. At the time, the comptroller's son, Dan Hevesi,
was acting as a third-party marketer in New Mexico. Aldus' founder, Saul
Meyer, was charged in the New York criminal probe.
"When there an aura of suspicion, where something looks and smells fishy,
you have to open the tackle box and show us what you are fishing for,"
Jennings said. "The governor has some obligation to the people to alleviate
any concern that the integrity of his office has been breached. He needs to
come forth."
Executive privilege
This is not the first time that the Richardson administration has used
'executive privilege' to keep government documents shielded from the
public.
The administration used executive privilege as a reason to keep records
private from an investigation in 2003 into what happened to developmentally
disabled clients discharged from state institutions in Los Lunas and Fort
Stanton.
And state agencies also have used it as a reason for not turning over
records.
The State Investment Council used executive privilege recently as one of
several reasons to deny records requested by a former Educational
Retirement Board investment officer Frank Foy.
Foy has sued the state to recover the $90 million lost due to the
Vanderbilt Financial Trust deal.
http://newmexicoindependent.com/29216/richardsons-office-denies-nmi-records-request-citing-executive-privilege
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