Who leaked public records?

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By Lee Einer

The city attorney is taking another swipe at whoever released e-mails to the Optic — despite the state attorney general’s finding that those e-mails were public record.

City Attorney Carlos Quiñones, in a two-page Oct. 5 memo labeled confidential to the mayor, the City Council and the city manager, contended that the release of the e-mails to the Optic was a “clear breach of the confidentiality provision” of the governing body’s Code of Professional Ethics.

He requested direction on what action the governing body wished to take regarding the breach.

The e-mails in question were between Las Vegas Mayor Tony Marquez and various council members discussing city business. Such a practice may constitute a “rolling quorum” and thus be prohibited under the New Mexico Open Meetings Act, a sunshine law that requires that public business be conducted in the open. The possible breach of the Open Meetings Act is still under investigation by the state attorney general’s office.

Earlier this year, the Optic had requested copies of the e-mails from the city under the state Inspection of Public Records Act. But the city had refused to release them, originally saying they could find no such e-mails on the city server, even though Quiñones himself had been copied in on them. Later, Quiñones argued to the attorney general’s office that the e-mails were not public records because they were sent from the mayor’s Blackberry, rather than a public server.

The e-mails obtained by the Optic include a number of subjects, including the dismissal of then-Utilities Director George DuFour, selection of members to the city Charter Commission, appointment of a city manager and water.

Assistant Attorney General Lesley Lowe sent a letter to the city on July 31, stating, “My interpretation ... makes the Mayor’s e-mails, without regard to the account he uses, public records if they relate to public business, and subject to disclosure.”

The city released the e-mails in question after receiving the AG’s letter.

Sarah Welsh, director of the New Mexico Foundation for Open Government, said this week that Quiñones’ Oct. 5 memo to the council is likely protected as confidential under attorney-client privilege. But, she said that the privilege exists to protect the client, not the attorney.

“The client, in this case the city, can still disclose those if it decides to,” Welsh said. “The attorney client-privilege is meant to protect the client, so if they (city) think that there is no harm in releasing those memos, they can do so.”

As for the e-mail leak, Welsh expressed skepticism over the possibility of the city’s looking into how it happened.

“It’s interesting that the city attorney is still trying to find a leak for something that can’t be leaked,” Welsh said. “It’s public information, which the AG acknowledged in their letter a couple of months ago. So I guess I really don’t understand the point.”

City Councilman Cruz Roybal said he hadn’t received a copy of Quiñones’ memo and therefore couldn’t comment. And council members Morris Madrid and Diane Moore declined to comment on the memo. But Moore said she agreed with the AG that the e-mails in question were public records.

City Councilman Andy Feldman said that the investigation should be dropped.

“There’s no ethical conflict in releasing public records to the public,” Feldman said. “Let it go. The practice has stopped, and it stopped last March. As far as I know, I haven’t been included on any quorum-type e-mails, so let it drop. There are other issues, bigger issues that we need to deal with on behalf of the city.”

Marquez and Quiñones didn’t return messages for comment.