Mayor asks AG for clarity on releasing officers’ disciplinary reports

December 11, 2017

Santa Fe Mayor Javier Gonzales has asked the state attorney general for clarification on whether New Mexico’s public records law requires the city to release information concerning internal disciplinary proceedings against police officers, or whether such proceedings should be kept from public view.

In a letter to state Attorney General Hector Balderas, Gonzales says he has “worked hard to cultivate a culture of accountability among city employees — to each other as well as to the public, for whom we all work.”

But while espousing the benefits of greater transparency, Gonzales also outlines the city attorney’s stance that the city cannot release disciplinary records on police officers, in part because the city employees have a constitutionally protected privacy interest that would be harmed by the public release of such records.

The mayor’s letter to Balderas, who oversees compliance with the New Mexico Inspection of Public Records Act by public agencies across the state, was first reported by The Santa Fe Reporter.

Under the city’s legal reasoning that disciplinary records are matters of opinion and not statements of fact, it’s difficult for the public to find out whether any of the officers on the nearly 170-member force have been disciplined, the terms of that punishment and the reasoning behind it.

Gonzales’ letter, sent in late October, follows a Santa Fe Reporter story in June that said five other agencies across the state — including the Albuquerque Police Department and the Santa Fe County Sheriff’s Office — publicly release some information about discipline on officers.

In August, the city denied two Santa Fe New Mexican requests, made under the Inspection of Public Records Act, for officer disciplinary records. The New Mexican had asked for such records for Santa Fe police Sgt. Troy Baker, the head of the police union who announced his retirement following a public controversy about Baker’s inflammatory social media posts.

The city also denied The New Mexican’s request for disciplinary records for Officers Luke Wakefield and Jeremy Bisagna, the two officers who in July fired a combined 17 shots at Anthony Benavidez, a 24 year-old Santa Fe man with schizophrenia who later died at the hospital. Benavidez’s family is filing a wrongful death lawsuit against the city over the department’s second fatal shooting this year. And city police have said the department launched an internal investigation into why Bisagna’s body camera turned off moments before shots were fired at Benavidez.

Following the city’s denials of the three officers’ disciplinary records, Peter St. Cyr, executive director of the New Mexico Foundation for Open Government, wrote in an email to the newspaper: “Factual information such as decisions regarding discipline, witness statements, and other case records have to be disclosed to the public.”

Asked if the mayor had a position on whether the city should release officer disciplinary files, Matt Ross, a spokesman for Gonzales, wrote in an email late last month the mayor is using “the letter to lay out both sides of the argument – one that argues that disciplinary records are public information, and one that argues they are not, and then goes on to ask for clarification.”

“The mayor believes there is a balance to strike between three essential factors: protecting employees’ constitutional rights to due process, protecting the taxpayer from costly lawsuits, and being as transparent as possible, and that we should be as transparent as we can be within the framework of the law,” Ross wrote. “The point of the letter is to ask the AG for more, or more specific, guidance than currently exists on where that balance lies.”