New Mexico Equity Council

New Mexico Attorney General Hector Balderas

(The Center Square) – The New Mexico Children, Youth and Families Department is facing backlash over the destruction of employee communications and the firing of two employees who complained about the practice.

Based on an investigation by Searchlight New Mexico, it was discovered that for about the past year, CYFD employees have been using a text messaging app called Signal to discuss official business, including the status of children under the state’s care and the coordination with other cabinet departments about the state’s response to the coronavirus pandemic.

The app allows such text messages to be set for automatic deletion after 24 hours.

“It’s pretty cut and dried,” said Paul Gessing, president of the Rio Grande Foundation, a nonprofit free-market think tank in New Mexico that often files freedom of information requests as part of its research. “The use of encrypted messaging is a danger to open government at all levels.”

New Mexico Attorney General Hector Balderas has opened an investigation into the department’s use of Signal.

Cliff Gilmore, previously the CYFD’s chief public information manager, told Searchlight he “repeatedly raised concerns” about the use of the app. He was fired May 6. Also on that date, Gilmore’s wife, Debra, who oversaw the department’s Office of Children’s Rights, was fired.

CYFD Secretary Brian Blalock told Searchlight the deleted text messages were “transitory communications,” much like employee banter and therefore not subject to open records laws.

According to official guidance within Gov. Michelle Lujan Grisham’s office, employees there are encouraged to delete text messages every 10 days, if not more often.

“The general public can be reluctant to try and obtain public records because they fear they could face repercussions or they just aren’t familiar with the process,” Gessing said. “This just makes things even more complicated.”

Rio Grande Vice President Patrick Brenner in a recent op-ed for The Center Square points out the conflict between these practices and New Mexico’s Inspection of Public Records Act, which says, “Because of the presumption in favor of the right to inspect, public bodies acquiring information should keep in mind that the records they keep generally are subject to public inspection.

Brenner says calling such text messages “transitory communications” does not mesh with the law.

“IPRA makes no explicit mention of the term transitory,” he wrote. “In fact, IPRA only mentions a few and very specific exceptions under select qualified circumstances where a record is not to be disclosed.”

Such exceptions include things like attorney-client privilege, employee personnel and health records and documents that contain protected personal information including Social Security numbers and birth dates.

“Let us conclude with the most important question of all,” Brenner wrote. “Why would records need to be destroyed if there wasn’t something to hide?”