State withheld records in Rio Arriba sheriff death investigation

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4 hours ago

The New Mexico Department of Public Safety took 42 days — far beyond the 15 days allowed by state statute — to release information this week about the mysterious April death of Rio Arriba County Sheriff Billy Merrifield.
Forensic pathologists reported May 15 that Merrifield's Easter morning death was due to the toxic effects of fentanyl and alcohol. Other questions remained unanswered, including whether the sheriff knowingly consumed fentanyl and where he may have obtained it.
In the days after Merrifield was found dead in his patrol car April 20, The New Mexican filed a public records request for related police reports and other information.
At first, the Department of Public Safety refused to release additional records. Next, it described the request as burdensome, buying the agency more time. After additional complaints from The New Mexican, it released a batch of investigative reports Thursday evening — 42 days after receiving the request. Those records — 105 pages of reports, photos and other documents — show the agency's investigators have not yet determined how Merrifield ingested the fatal dose of fentanyl that caused his death, along with alcohol.
The recent secrecy over Merrifield's death reflects a pattern of slow-walked disclosure of public records like state police reports and lapel camera footage, shielding public information on homicides, crashes, police shootings around the state and other public safety-related incidents.
The department's initial decision to withhold police reports from the investigation — as well as documents in another unrelated case — appears to have potentially run afoul of state public records laws and a Supreme Court ruling in recent years.
Department of Public Safety spokesperson Herman Lovato declined to respond to some questions about the matter in an email Friday, but he wrote each request through the New Mexico Inspection of Public Records Act 'is addressed individually' by department staff.
'If it involves an active or ongoing investigation, records that are complete will be produced if not subject to an exception, even on an active or ongoing investigation,' Lovato wrote. 'If the records have not been completed because of an active or ongoing investigation, they may be temporarily withheld until completed.'
He wrote the department's process 'aligns with New Mexico Supreme Court precedent and the requirements of IPRA.'
However, the department's written reason for denying a recent request for state police reports tied to Merrifield's death did not appear consistent with the process Lovato described.
In response to a request from The New Mexican seeking reports on Merrifield's death, a staff member at the department's records division wrote in early May, 'this is still a active/on going investigation and I was not given the approval to release the documents as they are still being [processed].'
About two weeks later, the department's reasoning changed, with a different staffer writing the request for reports was 'overburdensome.'
The records were finally released Thursday after The New Mexican submitted a complaint concerning an alleged violation of the Inspection of Public Records Act to the Department of Justice — and after sending emailed questions about the records request to officials that day.
Advocate: Court ruling 'clear'
Christine Barber, the executive director of New Mexico Foundation for Open Government, said in an interview the department's initial denial of the request appeared to potentially violate a state Supreme Court ruling a few years ago on the specific topic of records in active law enforcement investigations.
The ruling came as a result of a lawsuit brought by Andrew Jones against the Department of Public Safety, which had denied his request for records related to a state police investigation into the fatal shooting of his brother by Albuquerque police officers.
Barber said the 2020 ruling was clear, holding that 'the status of a criminal investigation as 'ongoing' does not serve to exempt public records related to the investigation from inspection under [the Inspection of Public Records Act].'
'Sometimes government agencies need to be reminded of the law,' Barber said, noting past litigation between the Foundation for Open Government and the Department of Public Safety. In a 2007 settlement between the department, the foundation and several news publications — including The New Mexican — department officials agreed to provide records like incident reports within the 15-day timeline required by state law.
An attorney for the government transparency group said at least one other journalist reported receiving a similar response recently when requesting the reports on Merrifield's death, but she added she did not recall other recent instances of state law enforcement agencies explicitly citing an open investigation as the reason for denying or delaying the production of records.
The Department of Public Safety cited the Supreme Court's decision in a letter denying a different request from The New Mexican earlier this year for an incident report in a different death investigation.
In the letter, staff acknowledged the court ruling stated exemptions to public records law 'cannot be interpreted so broadly as to withhold records simply due to the existence of an ongoing investigation.' The letter described exemptions that allow for redactions of parts of records, like names of potential subjects and informants, and ultimately stated the agency would withhold the entire report.
'Once the investigation is closed and no longer subject to these legal restrictions, certain records may become available for inspection,' the letter states.
Weeks to fulfill requests
While records are not usually withheld outright by the Department of Public Safety, it often takes several months to disclose reports from an investigation.
In the past two years, The New Mexican has submitted at least 24 requests to the Department of Public Safety seeking reports or other documents such as the agency's written policies, lists of employees or financial data — not including requests for records like police lapel camera footage.
The department provided the requested records in an average timeframe of more than two months per request. A little more than half of the requests for police reports or other documents were deemed 'broad' or 'burdensome' by the department's record staff, which allows for delays longer than 15 days. As of Friday, records have not been provided in response to two of the requests.
Department of Justice spokesperson Lauren Rodriguez said attorneys from the division that investigate public records complaints had contacted the Department of Public Safety earlier this week regarding the complaint from The New Mexican.
The investigators — after being assigned a complaint — usually contact the government agency in question to obtain more information, she said. They are trying to determine if there is actually noncompliance as well as whether the agency's staff knew their actions were out of compliance and whether they acted purposely in denying or delaying a records request.
Apart from the complaint submitted against the Department of Public Safety by The New Mexican, the department has been the subject of one other records-related complaint so far this year to the Department of Justice, Rodriguez said.
Gov. Michelle Lujan Grisham's office did not respond to an email seeking comment on the Department of Public Safety's practices concerning the release of public records.
Lujan Grisham stood behind the department when asked about the issue last year, with a spokesperson writing the governor 'defers to law enforcement authorities to determine when the release of information is appropriate based on the status of ongoing investigations, notification of next of kin, etc.'