Openness Hits Brick Wall as Lujan Grisham Invokes Executive Privilege at Least 13 Times in Horrific DD Waiver Abuse Matter

Transparency trumped by Governor Lujan Grisham, as she also hides behind “attorney-client” privilege in “Horrific” DD Waiver Abuse case.

After 5 PM on Friday, The Candle received an email containing an anemic response from Governor Michelle Lujan Grisham to an Inspection of Public Records Act request made a month ago for emails and other information regarding the “horrific case of abuse” of a 36 year old woman under the care of the state for services to persons with developmental disabilities.

While producing a total of 28 documents, Kyle Duffy, the Governor’s Deputy General Counsel, wrote that the Governor was refusing to provide other documents pertinent to the request about the case she and her new Secretary of the Department of Health (DOH), Patrick Allen, spoke of during a March 20, 2023, press conference.

While the DOH has released additional press updates since the press conference, the information has been carefully controlled by the governor and her secretary.

(The Candle will be reporting more tomorrow on how, for almost two months after the date they claim being informed of the event the governor described as horrific, the administration has dodged questions relative to the event and the role the state had in failing this individual – and the stalled progress for other DD Waiver clients.)

The emailed response from the governor’s attorney reinforces concerns that information compiled by the law firm investigating the events of the abuse, neglect and exploitation (promised by the governor last month), could be withheld from the public by the governor invoking “attorney client privilege.”

To that point, in response to the IPRA request already made, Duffy wrote:

“Please note that executive privilege has been invoked over 10 emails, 2 attachments, and 1 embedded link to an attachment that were otherwise responsive to your request … Additionally, please note that portions of these emails and attachments are also protected under exceptions applicable to medical information, law enforcement information, attorney-client privilege, and attorney work product.

Governor Lujan Grisham has a history of invoking executive and attorney-client privilege to deny many requests for information she does not want to share with the media and the public in general – such as in the Yazzie Martinez discrimination education lawsuit, matters dealing with employment bullying and discrimination towards women and members of the LGBTQ community, as well as information requested from the state’s environmental agency.

The media and the public in general, should expect to see more stonewalling from Lujan Grisham and her administration.

The Governor has to personally invoke the privilege.

While Duffy provided boilerplate reference to court decisions outlining the limited executive privilege acknowledged by the New Mexico Supreme Court, he did not include the part of the Supreme Court’s ruling that states,

“[A] governor must formally assert the privilege by declaring that he or she has reviewed the requested materials and concluded that the materials meet the criteria of the privilege, i.e., that they constitute a communication either to or from him [or her] and were made for the purpose of fostering informed and sound gubernatorial deliberations, policymaking and decisionmaking.”

The Supreme Court also wrote,

“while the privilege can extend to communications authored by close advisers, the privilege’s constitutional foundation requires limiting its invocation to the Governor … cabinet agencies that are simply under the ultimate control of the Governor may not assert a privilege to protect internal memoranda …”

This means Michelle Lujan Grisham, alone, can invoke executive privilege and she must “declare” that she has reviewed the materials as well, before making the call to conceal it from the public.

In other words, the Governor owns her actions in obstructing access to information the she has become aware of in this matter of ‘horrific’ abuse of a young woman, and that Duffy claims has been withheld under the privilege.

(Later this weekend, The Candle will also be updating our reporting on the documents that were received via the IPRA request.)