Subpoena goes too far

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By Optic Editorial Board

An attorney representing the state Department of Health is attempting to get her hands on a Santa Fe Reporter staff writer’s notes.

Attorney Jennifer Hall served a subpoena on staff writer Joey Peters earlier this month. The subpoena demands that Peters turn over all notes documenting communications between Peters and Bob Ortiz, a former Department of Health employee who is now suing the state for alleged violations of the Whistleblower Protection Act. It also seeks all communications between the two individuals.

Peters and the Santa Fe Reporter, the Capital  City’s alternative weekly newspaper, are fighting the subpoena.

So why should we care about a subpoena served on a journalist working in another city?

Because Gov. Susana Martinez’s administration is using our tax dollars to thwart an important principle enshrined in the constitution. To be fair, it’s unclear whether Martinez was even aware of the subpoena before it was issued, let alone whether she signed off on it.

That said, she surely knows about it now and should step in and put an end to this outrageous intrusion into the newsgathering process.

Both the Rio Grande Chapter of the Society of Professional Journalists and the New Mexico Press Association, of which the Optic is a member, are objecting to the subpoena.

SPJ calls the subpoena a “plain abuse of Power” and an “attempt at intimidation.”

Our nation’s founding fathers realized that a strong press is needed to serve as a government watchdog. Indeed, the First Amendment to the United States Constitution prohibits any law infringing on the freedom of the press.

Many states, including New Mexico, have enacted shield laws that recognize that reporters’ notes are privileged, and that set a high threshold for requiring a reporter to turn them over. In New Mexico the privilege has been recognized by the state Supreme Court.

That privilege exist because of the recognition that journalists play a vital role in keeping people informed and in holding the powerful accountable. Those functions will be severely hindered if sources begin to fear that government officials can gain access to their privileged communications through a subpoena.

The SPJ statement condemning the subpoena says it best: “Should the Health Department succeed in its baseless attempt at prying loose privileged correspondence and newsgathering methods, it could further chill an already frosty environment in which fewer and fewer sources are willing to come forward with information that is important to the public in this state.”

We doubt that the state Health Department comes anywhere close to meeting the high threshold set out for requiring production of the notes and other communications, and we are outraged that a state agency would even attempt it.

We hope Gov. Martinez has the courage to step in and put an end to this ridiculous infringement.