Opinion: Use of Signal app troubling to open government

The use of a secure communications app by the Children, Youth and Families Department that routinely encrypts and deletes communications between staffers is more than troubling. One child advocacy organization calls it “outrageous.” The attorney general says it’s “highly concerning.” And an open government organization likens it to shredding public documents, raising the possibility it constitutes a crime.

In contrast to standard texts or emails, which can be accessed by attorneys, lawmakers, reporters and the public under the state’s Inspection of Public Records Act or discovery in a court case, messages sent via Signal are all but impossible to retrieve once deleted, leaving virtually no trace of a conversation. Use of Signal by CYFD was disclosed by Searchlight New Mexico, an investigative news organization.

Records of employee communications are central to journalists covering state agencies and lawyers advocating for clients. “By law we’re supposed to have access to all of these records,” says Bette Fleishman, executive director of Pegasus Legal Services for Children, a nonprofit law firm representing children in CYFD custody. “Our job and our obligation is to investigate and do what’s best for the children. ... We need to have access to all the information. ... To have the state routinely deleting any sort of communications is outrageous.”

Melanie Majors, executive director of New Mexico Foundation for Open Government, told Searchlight that agencies “can’t just encrypt and automatically delete communications between state employees. That’s no different than putting official documents in the shredder at the end of every day. Improper destruction of public records is a fourth-degree felony.”

CYFD Secretary Brian Blalock, an appointee of Gov. Michelle Lujan Grisham, says the move to Signal came during the pandemic to protect confidential records of children in custody and facilitate secure, remote communications. He says agency lawyers signed off on the practice and records being deleted are not subject to IPRA.

That doesn’t wash. The definition of a public record is very broad under state law, with carefully crafted exceptions for things like medical information and mental health evaluations. Searchlight’s report of employees, including Blalock, using Signal to discuss issues ranging from problems with private contractors to coordination during the 2021 legislative session would almost certainly be public records. That those conversations occurred is based on screenshots provided to Searchlight. The content of those discussions is likely gone forever.

Attorney General Hector Balderas has confirmed his office is looking into CYFD’s use of Signal - as it should. “It is highly concerning that public employees are potentially deleting public information without a thorough legal process, and we are reviewing the matter,” he said in a statement.

CYFD has long been a troubled agency entrusted with difficult responsibilities. Oversight by reporters and advocates is a good thing - unless you’re running the agency, in which case selectively deleting information can make life a lot easier. Moving to a communications format right out of a “Mission Impossible” script is terrible public policy that does a lot more to protect state bureaucrats by hiding their conversations than it does to protect children whose advocates are deprived of important information.

— Albuquerque Journal