I am the lawyer for The Jal Record who filed the public records lawsuit pending in State District Court against Jal City Manager Bob Gallagher and the City of Jal. This lawsuit is based on the New Mexico Inspection of Public Records Act, commonly referred to as “IPRA.” Mr. Gallagher and others have made many disparaging and untrue statements about this IPRA case. I am writing because The Jal Record’s readers have a right to know the truth.
I have been representing media companies, newspapers, and journalists for more than thirty years, including ABC, CBS, the late Mike Wallace, and other award-winning journalists and news organization including Pulitzer Prize winners. Far from the disparaging way Mr. Gallagher has described The Jal Record’s IPRA lawsuit, this case is in the finest tradition of American journalism; that is, in the press’s role as democracy’s watchdog. As it reads on the masthead of the newspaper that broke the Watergate story: “Democracy Dies In Darkness.” The Jal Record’s lawsuit was and is necessary to protect your right to know, and I am proud to be prosecuting it.
IPRA lawsuits should not be necessary, because public officials like Mr. Gallagher should follow State Law and disclose public records voluntarily. It is their legal duty to cooperate fully in making those records available to the public upon request, because people who make their living on taxpayer dollars and exercise official authority are accountable to you, and me, and every other New Mexican. They do not have the right to do whatever they please, for whatever reason they please, and to do it in secret. When public officials have nothing to hide, they have no reason to violate IPRA and they typically do not get sued. In fact, the information that led to the IPRA request to Mr. Gallagher came from documents disclosed voluntarily under IPRA by the State Oil Conservation Division. That State office received the request and promptly disclosed the requested documents as required by New Mexico Law. End of story. No lawsuit. No lawyer fees. If Mr. Gallagher and The City of Jal had done the same, this lawsuit would not have been necessary.
The IPRA Complaint filed with the Court states that Mr. Gallagher – in direct violation of New Mexico’s open government laws and public policy – engaged in an intentional pattern of deceit, obstruction, and delay calculated to violate the public’s right to know under IPRA. The Complaint further states that Mr. Gallagher did so by, among other things, playing a game of “now you see it; now you don’t,” with public records that he relied upon when it suited his purposes, but denied having when the IPRA request arrived for the very same records. The Complaint explains that Mr. Gallagher’s deception was consistent with his desire to exercise governmental power in secret, evidenced by among other things an e-mail he wrote stating that he was “disappointed and concerned” when his actions were disclosed. For more details, I encourage you to review the Complaint, which is posted on the The Jal Record’s website.
At a minimum, these circumstances required an explanation. But instead of cooperating in scheduling a time for his deposition to provide that explanation, Mr. Gallagher spent taxpayer money fighting his legal obligation to do so. He told the Jal City Council and the public at a January 2017 City Council meeting that the City had disclosed all of the requested documents and that there was no good reason for his deposition. Mr. Gallagher then sent his lawyer to appear before The Honorable Gary Clingman and tell the Court the same story; that is, that the City supposedly had disclosed all of the documents and that there was no reason for his deposition. But the Judge ordered Mr. Gallagher to testify, and during questioning under oath Mr. Gallagher was forced to admit that what he told the Jal City Council and the public – and what he directed his attorney to represent to the Court – was not true.
In fact, Mr. Gallagher’s sworn testimony demonstrates over and over again that – directly contrary to what he repeatedly has claimed – the City did not even come close to disclosing all of the requested documents. A copy of the transcript of Mr. Gallagher’s deposition is posted on The Jal Record’s website, so you can confirm this fact for yourself. If Mr. Gallagher’s attempt to block his deposition had been successful, we would not have been able to obtain these sworn admissions.
And yet – even as more and more of the truth comes out — Mr. Gallagher continues to insist that this IPRA lawsuit somehow is unnecessary and even abusive. But there no longer is any doubt that the opposite is true. Which leads to the inevitable question: What else is Mr. Gallagher hiding?
As Thomas Jefferson wrote in the months leading up to the Constitutional Convention: “The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter.” IPRA codifies this same fundamental democratic principle in our State’s open government laws: “Recognizing that a representative government is dependent upon an informed electorate, the intent of the legislature in enacting the Inspection of Public Records Act is to ensure, and it is declared to be the public policy of this state, that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of public officers and employees.”
Throughout his deposition, Mr. Gallagher gave lip service to these principles, but you can draw your own conclusions about that based on the facts The Jal Record has uncovered. In addition to posting a complete copy of the transcript of Mr. Gallagher’s deposition, The Jal Record also has posted excerpts from the videotape of that deposition. I encourage you to watch the video and then to ask yourself: Has the Jal City Manager been honest about his conduct and this IPRA lawsuit? Or instead, has he been deceiving you and fighting tooth and nail at taxpayer’s expense to try to keep doing whatever he pleases, for whatever reason he pleases, in secret and with zero accountability?
The New Mexico Supreme Court repeatedly has emphasized in IPRA decisions enforcing the public’s right to know that an informed electorate is the backbone of our democracy. In the words of our State’s highest Court, our Constitutional system “is at its apex when the people have access to the information necessary to determine whether their elected officials are faithfully executing their duties.” This information is even more essential when it comes to holding unelected officials like Mr. Gallagher accountable for the exercise of governmental authority in your name, without ever having earned a single vote.
Quoting the great patriot Patrick Henry in an IPRA decision reaffirming the essential nature of the public’s right to know, our Supreme Court explained that “[t]he liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them. . . . [T]o cover with the veil of secrecy the common routine of business, is an abomination in the eyes of every intelligent man, and every friend to this country.”
In a democracy, governmental secrecy is toxic and sunlight is the best disinfectant. As your community newspaper, one of The Jal Record’s missions is to ensure that you have the information you need to hold Jal City officials accountable for their actions, and the Record intends to continue to fulfill this mission.