New Mexico Democrat Gov. Michelle Lujan Grisham’s Children, Youth, and Families Department in May fired two senior employees who raised concerns over the agency’s use of Signal, an encrypted messaging app where staff communications were concealed.
The app’s use was supported by the governor’s office, whose team instructed agency employees to routinely delete their messages every 10 days or sooner, according to blockbuster reporting from the New Mexico investigative nonprofit Searchlight.
“Department leadership then set many of those communications to automatically delete, rendering them forever inaccessible to attorneys, members of the public and journalists,” the outlet reported, highlighting the systemic deletion as a potential violation of the New Mexico Public Records Act.
The type of oversight that led to this week’s release of more than 3,200 pages of emails to and from Dr. Anthony Fauci, exposing deceit and coverups related to the COVID-19 pandemic, is nonexistent for months of communications among state agency staff in New Mexico.
The governor’s office, according to official guidance made public by Searchlight, told staff that records sent in the Signal app qualified as “transitory records” and were therefore exempt from Inspection of Public Records (IPRA) requests.
“Every single text message that you send or receive likely qualifies as a ‘transitory record,'” the guidance read. “We recommend that you delete all text messages which are ‘transitory records’ every ten days. You may delete more often if you wish.”
According to an IPRA guide by New Mexico Democrat Attorney General Hector Balderas, however, no such exemption for “transitory records” exist.
Pat Rogers, a prominent New Mexico attorney and legal expert on IPRA, said the governor’s use of the phrase “transitory records” is a made-up term in the context of the state’s public records law, one of the strongest in the country in favor of transparency.
“I don’t know what they’re talking about,” Rogers told The Federalist when asked about the governor’s office’s excuse for exemption. “The biggest issue is the suggestion that their counsel has somehow okayed this or approved this. … They’re going to get sued and they’re going to lose, and the taxpayer is going to pay.”
Melanie Majors, the executive director for the New Mexico Foundation for Open Government, also said she was unaware of any exemptions singling out “transitory records.”
“I don’t think that actually IPRA makes that distinction about records,” Majors told The Federalist. “IPRA itself does not make an exemption between what is a long-term record and a record that lists dates and times and records and places of information that would be important in a hearing.”
Shortly after Searchlight’s reporting, the Children, Youth, and Families Department said the agency ceased its use of Signal, but still used Microsoft Teams, a similarly encrypted messaging app that allows management to set the automatic deletion of records after a select period of time.
How widespread the use of the encrypted messaging service was among agencies within Grisham’s administration remains unclear, but response to a public records request filed by Patrick Brenner at the Rio Grande Foundation and shared exclusively with The Federalist found no results for text messages, Signal messages, or Teams messages to or from Grisham’s press secretary Nora Sackett for the entire month of April.
The empty results mean the messages were either deleted, as in compliance with administration guidance, or Sackett did not send any messages from her phone during that time.
A screenshot of an email also shared exclusively with The Federalist from the governor’s Department of Technology, a cabinet-level agency, shows state employees were instructed to use Microsoft Teams, noting messages would be set to automatically delete every 24 hours. The policy, according to the email, appears to have been in place since Jan. 24 this year.
Brenner told The Federalist the above email was sent to the New Mexico Higher Education Department, Department of Health, Department of Transportation, and Department of Public Safety.
Grisham’s office did not respond to The Federalist’s inquiries.