Patrick Brenner

Thankfully, Anthony Fauci didn’t delete his emails like Gov. Lujan Grisham

Anthony Fauci’s emails have been released, and they tell an interesting tale about the government’s handling of the COVID-19 pandemic. One particular email stood out to me from Fauci to Sylvia Burwell discussing masks.

Within the body of the email, Fauci asserts that the use of masks in a public setting is generally to prevent infected individuals from spreading a virus. More specifically, he writes that the “typical mask you buy in the drug store is not really effective in keeping out virus, which is small enough to pass through the material.” This email was sent on February 5, 2020.

If the drug-store masks are ineffective, why were they forced on the general population for over a year? Did masks help contain the spread of COVID-19 at all? What else do we not know?

But I’m not here to argue about the efficacy of masks and Fauci’s handling of the pandemic. I’m here to emphasize the importance of why we are able to have this discussion today: open government and transparency.

Without access to these documents, the country might not have ever known to ask these questions. This is significant as we can analyze the events in early 2020 in a new light. Most importantly, we can hold individuals accountable if they recommended policies that were known not to be effective.

Here in New Mexico, we have a different ongoing dilemma, one that is also rooted in transparency. Thanks to the initial efforts of Searchlight New Mexico, the additional whistleblowers that have come forward since the initial Searchlight report, and some well-timed public records requests submitted by yours truly, we know that Governor Michelle Lujan Grisham and her administration are still actively depriving the people of New Mexico access to public documents through permanent and automatic deletion.

In January of this year, a directive from the governor’s office was implemented by the New Mexico Department of Information Technology: delete all messages after 24 hours. This directive came before the governor’s press secretary acknowledged the use of a creative new term: “transitory.”

The deleted messages were broadly considered “transitory” in nature, a definition that has already been debunked in the context of transparency and is not a qualified exception under the Inspection of Public Records Act (IPRA), New Mexico’s government transparency law.

“Transitory” messages have been unofficially described as “employee banter, routine check-ins between workers and other insignificant exchanges.” The rub is that they’re all public documents and subject to inspection requests, regardless of whatever “transitory” qualification they try to apply.

Fauci could have used the same term to describe his seemingly innocuous email to Burwell about masks. What if Fauci had deleted that email because it was “just transitory”? 

All this and the responses from Michelle Lujan Grisham’s office that there are “no records responsive to your request” underlines a seriously dangerous trend and contemptuous attitude within the Governor’s administration. The widespread and systematic “paper shredder” policy is nothing short of criminal.

New Mexico’s Attorney General agrees: “public bodies acquiring information should keep in mind that the records they keep generally are subject to public inspection.”

The governor’s press secretary Nora Sackett said that the governor takes transparency and open government “very seriously.” If that’s true, then Michelle Lujan Grisham’s administration and all New Mexico state agencies should shed their cloaks of secrecy and immediately stop the destruction of public documents.

This is a clear assault on the people’s ability to keep a watchful eye on their elected government and should be alarming to everyone, especially those who care for our democracy.

And remember, democracy dies in darkness.

But wait, there’s more! MLG has been auto-deleting public records every 24 hours since Jan. 24th, 2021

Searchlight New Mexico recently completed an investigation and found that two employees of the New Mexico Children, Youth and Families Department (CYFD) raised concerns about the agency’s recent shift to the use of encryption and the automated destruction of public records. This report was released shortly after the employees were terminated in May 2021.

The department transitioned to the secure text messaging app Signal to discuss a wide range of official business, including the state’s response to the COVID-19 pandemic and the care of children in state custody. Officials asserted that they relied on Signal primarily for “transitory communications.”

CYFD now claims that the contentious use of Signal has ceased, but the memory hole goes deeper than that. In fact, the Governor mandated a protocol for the automatic deletion of “transitory” messages that has been in force since January.

After penning an op-ed debunking the definition of “transitory” communications within the definition of the law, I decided to continue following (what was left of) the paper trail. I conducted a new search for a document retention policy, uncovering a directive from Governor Michelle Lujan Grisham’s office.

On January 21, 2021, Renee Narvaiz of New Mexico’s Department of Information Technology (DoIT) sent a state-wide memo detailing that “the Executive Branch is preparing to “migrate” to new software called TEAMS, packaged within the Microsoft Office365 productivity suite. Office365 includes software like Word and Excel but also includes the TEAMS business communication platform. Think of TEAMS as instant messaging, almost like Signal but with more robust enterprise-level configuration and security tools, including forced policies like automated message deletion.

The specific text of the most concerning part of the memo reads, “As of Sunday, January 24, 2021, TEAMS Chat communications will only be retained for 24 hours from their creation.”

The Governor has literally decreed that all messages from all state agencies and departments shall be automatically deleted after 24 hours.

This is different from the open records fiasco currently embroiling CYFD, as those auto-deletion features can only be enabled by individual employees as end-users. The Governor’s TEAMS messaging purge is enforced by DoIT. And apparently, the DoIT’s information technology policy is dictated by the Governor’s Office.

This is not a mandatory feature of TEAMS. Rather, it was a carefully considered policy pushed from the Executive Branch. Why does any government agency with obligations to be transparent need to use software that supports forced automatic deletion of public records?

Additionally, employees are told to screenshot any messages they wish to retain: “Any user who wishes to preserve a copy of a TEAMS Chat communication must do so outside of the TEAMS Chat environment. Users can either copy/paste the communication or take a screen shot.”

DoIT asks for 15 days to respond to public records requests. I made a request just the afternoon and the agency responded:

“Records Custodians have 3 days to respond to all IPRA Requests; this is a standard response as required by the Inspection of Public Records Act. DoIT may have the records on or before this date. Unfortunately, this is not our only pending request and there are several in our queue. DoIT is allowed 15 days to provide the information requested or send a follow up response relating to the status.”

Let’s take a step back. The Governor has mandated automatic deletion of public records from all of the state agencies currently using TEAMS messaging within 24 hours, and I can’t get a response about the existence of records until after 72 hours.

These public records are being deleted before any constituent can ask for copies. That’s beyond dangerous.

Patrick Brenner is the Vice President of the Rio Grande Foundation, New Mexico’s free-market research institute and think tank. He leads the Foundation’s open government and second amendment efforts.

Opinions expressed by Piñon Post contributors do not necessarily represent the viewpoints of the publication or its editorial staff. Submit an op-ed to the Piñon Post at news@pinonpost.com.

CYFD’s ‘transitory’ copout: the latest attempt to deny, defame, and delay

As the far-left solidifies its stranglehold on all New Mexico’s state government branches, more than ever, we need an aggressive media and informed constituency to demand accountability in a system proven to produce abuses. These abuses have never been more readily apparent than in the aftermath of a recent Searchlight New Mexico investigation.

In May 2021, the New Mexico Children, Youth and Families Department fired two high-level employees. Their terminations came after the two employees raised concerns about the agency’s recent shift to the use of encryption and the automated destruction of public records.

The department recently transitioned to the secure text messaging app Signal to discuss a wide range of official business, including the state’s response to the recent pandemic and the care of children in state custody. Officials asserted that they relied on Signal primarily for “transitory communications.” But what is “transitory” in the context of the Inspection of Public Records Act (IPRA), the state’s public records law?

CYFD Secretary Brian Blalock defines transitory communications as “employee banter, routine check-ins between workers and other insignificant exchanges not subject to public records laws.”

However, the New Mexico Attorney General’s IPRA guide addresses exceptions generally: “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.”

Wait: I’m confused. IPRA itself makes no explicit mention of the term “transitory.” IPRA only mentions a few and very specific exceptions under select qualified circumstances where a record is not to be disclosed. These exceptions include matters that fall under attorney-client privilege, certain personnel records, health records, and “protected personal identifier information” such as social security numbers and birth dates, as well as a few others.

These are reasonable exemptions to protect certain information of citizens. What does this mean? It means that no government agency will turn over your social security number to a requester. If a record contains a social security number, the number is redacted. This protects the privacy of citizens. 

And protecting the privacy of citizens in this way is a good thing. One of the greatest freedoms we have is the freedom from interference or intrusion, the right “to be let alone,” a formulation cited by Louis Brandeis and Samuel Warren in 1890. Remember: transparency is for the government, privacy is for the citizens.

But CYFD employees are employed by a government agency. Do they have a right to privacy? In the conduct of their job, the law says no.

Obtaining public records from government agencies can be a difficult task. Sometimes the custodians are great people. They do their jobs well, making the request process easy. But other agencies put up roadblocks where litigation often becomes an unavoidable outcome.

If it was already difficult to obtain certain records, what happens if the agency moves to a platform where text messages are encrypted and automatically deleted? That task is now impossible.

According to the law, these text messages constitute public records, regardless of how “transitory” they are in nature.

The New Mexico Attorney General’s IPRA guide offers insight to contradict the “transitory” qualification: “‘public records’ means all documents, […] regardless of physical form or characteristics, that are used, created, received, maintained or held by or on behalf of any public body and relate to public business, whether or not the records are required by law to be created or maintained.”

With CYFD setting a dangerous precedent, the governor’s office offered similar advice. “Every single text message that you send or receive likely qualifies as a ‘transitory record,’” the official guidance counsels. “We recommend that you delete all text messages which are ‘transitory records’ every ten days. You may delete them more often if you wish.”

This reminds me of George Orwell’s memory holes from his groundbreaking novel 1984:

“When one knew that any document was due for destruction, or even when one saw a scrap of waste paper lying about, it was an automatic action to lift the flap of the nearest memory hole and drop it in, whereupon it would be whirled away on a current of warm air to the enormous furnaces which were hidden somewhere in the recesses of the building.”

Well, it’s 2021, and I hate to be the bearer of bad news, but the obligation to provide these records to requesters has not been absolved. Denying access to records, defaming those who stand up, and delaying a solution to the problem undermines the already troubled credibility of government institutions and their leaders.

Let us conclude with the most important question of all: why would records need to be destroyed if there wasn’t something to hide?

Patrick Brenner is the Vice President of the Rio Grande Foundation, New Mexico’s free-market research institute and think tank. He leads the Foundation’s open government and second amendment efforts.

Opinions expressed by Piñon Post contributors do not necessarily represent the viewpoints of the publication or its editorial staff. Submit an op-ed to the Piñon Post at news@pinonpost.com.

The government prohibited Denny Stong from defending himself

Ten people, including a Boulder police officer, were killed in a shooting at the King Soopers supermarket in Boulder on Monday, March 22. One of the victims was Denny Stong.

I knew Denny. I was planning to attend an event with him at the beginning of May. He was 20, and his life was tragically cut short. His death is a catastrophic loss for his family, his friends, and his community.

This young man was also looking to obtain a concealed carry permit from the State of Colorado. Unfortunately, Denny was too young: Colorado requires permit holders to be 21 years of age to be issued a concealed handgun carry permit.

I blame the gunman for Denny’s death. But I also blame the government and Kroger Company for leaving him defenseless.

Denny and I recently connected through our mutual love of history. Our joint fascination with the American Civil War led us to work toward historical preservation in Colorado and the Southwest together. We had plans to make a presentation to the public at a museum event in May.

An ardent supporter of the Second Amendment, one of his last public Facebook posts was his birthday fundraiser for the National Foundation for Gun Rights, an advocacy group that works to expand pro-gun precedents and defend gun owners.

Americans want to be able to defend themselves. In fact, first-time gun ownership is on the rise. Coupled with a study from the Cato Institute with the conclusion that crime rates decrease when concealed carry laws are enacted, Americans have proven they can defend themselves responsibly.

Policies and discrimination stand in their way. Our laws and Kroger Company employment regulations disarmed Denny.

The 21 year age requirement not only serves no purpose, but it has been costly, as with the case of Denny. Plenty of military men and women train with firearms every day, and many of those personnel are under 21. The Defense Manpower Data Center, responsible for Department of Defense data management, reports that over 19% of active-duty military personnel are between 18 and 21 years old. Why is 21 an appropriate cutoff age for concealed carry permits if you can own a firearm at 18?

King Soopers is a Colorado subsidiary of the Kroger supermarket chain. It operates more than 150 stores in Wyoming and Colorado, while Kroger is based in Cincinnati.

Kroger has recently changed its gun policies and sales practices. In 2019, Kroger asked shoppers to leave their firearms at home. The policy change came a day after grocery rival Walmart made a similar change. The previous policy had been to defer to state or local gun regulations.

Even if Denny could not apply for a concealed carry permit because of his age, he could not have exercised his right to open carry a firearm in Colorado because of his employer’s strict anti-gun policies.

Around the country, there are many reports of concealed carry permit holders stopping crimes, including mass murderers.

On January 17, 2019, Jay Brown, an IHOP employee in Huntsville, Alabama, stopped a gunman, potentially saving many lives. Another restaurant patron was proud he took action, “It’s amazing that he was able to think so quickly on his feet in that situation, because I think I probably just would’ve panicked,” Sierra Seay said. What if Denny could have been a Jay Brown?

Concealed carry permit holders can stop crime and save lives. Denny Stong was wrongfully deprived of his right to carry a concealed handgun by the government for no logical reason, and it probably cost him his life. I mourn his loss.

Government failed Denny Stong and robbed America of a hero. If Denny had been allowed to carry a concealed firearm, lives could have been saved. The outcome of Monday’s shooting should have been radically different.

“The right of the people to keep and bear Arms, shall not be infringed.”

Patrick Brenner is a Policy Analyst with New Mexico’s Rio Grande Foundation. The Rio Grande Foundation is an independent, nonpartisan, tax-exempt research and educational organization dedicated to promoting prosperity for New Mexico based on principles of limited government, economic freedom, and individual responsibility.

The domestic war on private prisons doesn’t help anyone

Contractor-operated prisons, or so-called “private prisons,” have been vilified among progressives, even though their success in preparing inmates for productive engagement after their incarceration should be lauded by all social and political ideologies as part of the solution to social justice reform.

HB 40, which would eliminate all privately-managed correctional facilities in New Mexico, has been making its way through the Legislature this session.

Last month, Joe Biden signed an executive order to end new contracts between the Department of Justice and contractor-run corrections facilities, which almost exclusively house foreign citizens convicted of federal crimes.

Contractor-run correctional facilities perform a valuable service. They help control overcrowding in publicly-run prisons while providing more and better rehabilitation opportunities. Typically, inmates are safer as rates of assault were lower at contractor-run facilities than rates in publicly-managed prisons. 

Opened in 1998, the Lea County Correctional Facility in Hobbs, New Mexico, is a contractor-managed facility operated by GEO Group on a former World War II training base. As with all correctional facilities in the United States, it is managed in compliance with standards set by the American Correctional Association. The facility was most recently reaccredited in 2015 with a perfect score. 

The facility provides inmates with training, work programming, recreation, and educational opportunities. GEO’s in-custody and post-release “continuum of care” programming, developed by experts in criminal justice, substance abuse, psychology, and other areas, keeps residents engaged for positive change, is critical for them to be successful once they serve their sentence and to avoid reoffending. A study from the Rand Corporation found that inmates who participated in correctional education programs were 43 percent less likely to recidivate than inmates who did not. And, oftentimes, state budget cuts often hit prison programming first, while private contractors have flexibility and can invest their own resources to continue to do what is best for those in their care. 

While visiting another GEO Group-managed facility here in New Mexico, I met residents and staff who spoke highly of their experiences with the programming offered. Many residents have struggled with substance abuse challenges and require acute counseling and rehabilitation programming to help overcome their addiction. According to the Sage Neuroscience Center, all of the top 10 causes of death in New Mexico can be at least partially attributed to drug and alcohol abuse. Program residents must complete the Residential Drug Abuse Program (RDAP) as part of their sentence. With new executive orders underway and the threat of HB 40, these programs could be shut down, potentially forcing these individuals into a jailhouse general population where they would not be able to get the services they need to survive and thrive after they serve their sentence. Revoking important substance abuse programs would destine many of these people to the damning cycle of ongoing drug and alcohol abuse, harming not only themselves but also their families and local communities.

In short, all contractor-operated facilities follow the same protocols, policies, and procedures as publicly-run facilities under the New Mexico Department of Corrections. Furthermore, the contractors have strict oversight of their operations, including on-site monitors, something that the government facilities and the state lack. Additionally, contractors are held to the terms of their agreement with the state and are penalized for any shortcomings, unlike their government-run counterparts. 

Most importantly, as our nation shifts its corrections’ paradigm to highlight judicial reforms and inmate reentry, we should leverage all of the successful tools at our disposal to provide inmates with the care, attention, and training they need inside facility walls – whether contractor run or publicly run – in order to be well-functioning members of society when they rejoin the public.

Continuing to wage war on contractor-run prisons doesn’t solve any problems or help inmates. If a program works, it shouldn’t matter who is managing it. By working together, we can rethink our prison system for the benefit of everyone.

Patrick Brenner is a Policy Analyst with New Mexico’s Rio Grande Foundation. The Rio Grande Foundation is an independent, nonpartisan, tax-exempt research and educational organization dedicated to promoting prosperity for New Mexico based on principles of limited government, economic freedom, and individual responsibility.

New Mexico Men's recovery Academy residents at Los Lunes outing on 4th of July, 2018

New Mexico should not cut programming at corrections facilities

As the country begins to re-open and we assess what the future will look like post-pandemic, and states will have to take a hard look at where to allocate funds knowing there will undoubtedly be budget concerns for the foreseeable future. While budget cuts are imminent, and in New Mexico, they are needed. That does not mean indiscriminately eliminating programs or services that provide real benefit to New Mexico residents who need them most, especially when they ultimately save taxpayers money in the long run. 

Before everything shut down, I toured the New Mexico Men’s and Women’s Recovery Academies near Albuquerque, where I met with both the residents and the staff who run both of these facilities. Not only did the residents and staff provide glowing reviews of the programming and facilities, but also the Department of Corrections official who toured with us said that she fights for this type of programming across New Mexico and spoke about how effective it has been. These types of programs are on the chopping block. But it is these same programs that serve as alternatives to incarceration and are incredibly effective in treatment, saving taxpayer money, and creating better outcomes for participants of these programs. 

The New Mexico Men’s and Women’s Recovery Academies are both managed by the GEO Group, a private contractor that operates detention and corrections facilities. While often vilified in the media, this private contractor has spent $10 million last year alone on programming around substance abuse counseling and cognitive-behavioral treatment. Rehabilitation programming like this provides care, compassion, and proven tools to help people and reduce recidivism rates. 

When you visit, the most surprising element is the sense of community and pride that has been fostered among the residents and staff, where the more tenured members act as mentors for the newer residents. They genuinely pull for one another through this challenging transition. The graduates of this program see this as a unique opportunity for their lives, and they are less likely to fall back into their old ways. Funding these types of programs will not only help residents overcome their addiction and other issues, but they will also help New Mexico’s bottom line. 

This programming in New Mexico is new. But inmates who participated in this same programming in facilities in Florida had a recidivism rate 30 percent lower than their peers that did not have the same programming. Assuming this trend holds and recidivism is reduced by one-third of the average in Florida after participation in these programs, this could be a significant cost-saving measure for the state. In 2019 alone, this would roughly provide $8 million in cost avoidance for Florida because they will no longer have to house these reformed inmates. There is every reason to believe the Lea County Correctional Facility in Hobbs will see the same drop as Florida experienced, and New Mexico could have the same experience with “cost avoidance.”

Corrections funding was already reduced during the recently-completed special session. When cutbacks occur in the 2021 session, programs like these should be among those preserved. The expertise of private sector providers can provide such services at a high quality and reasonable price. Still, the ultimate benefit is to the State and taxpayers of New Mexico who are desperately searching for ways to reduce crime and recidivism in their communities.

There is no “silver bullet” to solving crime. The COVID 19 epidemic will have unpredictable consequences for our society and crime rates and the criminal justice system at large for years to come. Even in times of tight budgets, New Mexico needs to continue investing programming, especially the kind that can be provided by private providers at a reasonable cost in our prisons and treatment facilities to ensure that we support inmates and residents. Short-sighted decisions now may have a negative impact on New Mexico for years to come. 

Patrick Brenner is a policy analyst with the Rio Grande Foundation, New Mexico’s free-market think tank. The Rio Grande Foundation is an independent, nonpartisan, tax-exempt research and educational organization dedicated to promoting prosperity for New Mexico based on principles of limited government, economic freedom, and individual responsibility.

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