KNME-TV describes itself as “a trusted source for in-depth news and information.”  Yet for over five years the station has been resisting a public records request for documents that might show whether the PBS affiliate sold its journalistic integrity for a mere $30,000.

Since June 2007, KNME has been withholding records relating to its “news documentary” on the Navajo water settlement.  Attorney fees are mounting.  It faces penalties that may exceed $180,000. Even after losing in the New Mexico Supreme Court, the public broadcaster continues to hold back documents under claims of privilege not likely to be recognized by New Mexico courts.

What does KNME have in its files it does not want the public to see?

The case has escaped media attention since the suit was filed. Journalists at the time briefly examined the question whether KNME had produced a fake documentary to advance the interests of clients who paid for the production.  Additional documents have surfaced as the case wound its way through the courts.  A more thorough examination of that question is now possible.

In researching this report we sought comment from KNME management, their attorney and the producer of the documentary.  We were hoping for an explanation of why they continue to fight disclosure of public records.  They did not respond to inquiries by telephone or e-mail.

We have examined the court files and the files of Victor Marshall, the Albuquerque attorney pressing the claims against the station.  We have studied over a thousand pages from KNME’s files that were disclosed only after KNME had been served with the lawsuit.  We have also examined the “privilege log” describing the documents which KNME to this day refuses to disclose.

The Navajo Water Settlement

For decades, legal and political battles swirled around water rights in New Mexico’s San Juan Basin.  The Navajo Nation claimed water needed by New Mexico’s cities, ranches and farms.  The State Engineer feared the consequences of the Navajos prevailing on very aggressive claims.  In 2005 the Navajo Nation reached agreement with the State of New Mexico.  A settlement was hammered out that would give the Native Americans just over half the water in the basin in exchange for massive infrastructure to distribute the water across the vast Navajo reservation.  All that was missing to cement the deal was $800 million from the federal government.  To get that money, Congress would have to be persuaded to financially support the settlement.

But not everyone liked the arrangement.  Downstream agricultural users objected that the Navajos were getting too much.  Environmentalists feared the impact on the San Juan River.  Even some Navajos dissented, saying their tribe had surrendered unnecessarily.

The New Mexico State Engineer came up with an idea to assist the public relations campaign that lay ahead.  His plan required the cooperation of KNME-TV.  He wanted them to produce and broadcast a story that would benefit his lobbying efforts.  He dangled money.  KNME bit.  And a “news documentary” called “The Water Haulers” hit the airwaves.

The Water Haulers:  Honest News or Paid Propaganda?

On January 13, 2007, KNME-TV debuted its production of “The Water Haulers,” a 26 minute program about the Navajo water settlement.  You may view the entire video at this link.  The closing credits revealed that the production had been funded by The Healy Foundation, the Navajo Nation, and the State of New Mexico Office of the State Engineer and Interstate Stream Commission.

KNME did not inform its viewers that it had produced the broadcast as a contractor for paying clients, and had given the Navajo Nation and the State Engineer the right to review script and video before final production.  While the contract states KNME retained editorial control, the contract also states the clients had the right to approve the final product.

Documents produced in the course of the public records litigation show that when representatives of the Navajo Nation raised objections to including viewpoints contrary to the message they wanted delivered, KNME removed those viewpoints entirely from its production.  Not one voice in “The Water Haulers” expressed a single concern with the proposed settlement, even though the dispute had been a matter of protracted litigation and wide ranging public controversy.  On the other hand, individuals instrumental in getting KNME paid were given prominent speaking roles to deliver their message unimpeded by either tough questions or contradictory perspectives.

A Proposal to KNME

KNME has not always been forthright in describing how “The Water Haulers” came to the airwaves.  KNME told The Albuquerque Journal that the idea had been proposed by the station’s staff to the State Engineer.  Documents produced in the lawsuit show that KNME repeated the same assertion to curious journalists and other broadcasters, such as American Public Television, that were considering running the documentary on their networks.

But KNME has disclosed no records documenting any proposal from KNME staff to the State Engineer.  Instead, KNME’s files contain a letter from the State Engineer showing it was his office that proposed the idea to KNME.  He offered to pay $30,000 towards the production. The State Engineer at the time, John D’Antonio, was not shy about explaining his motivation.  He wanted a video production that would persuade KNME’s viewers to weigh in on the side of supporting the water settlement and lend their voices to convincing Congress to allocate the funds needed to construct the water lines and other infrastructure the agreement required.  D’Antonio’s proposal unabashedly stated he wanted KNME’s documentary “to make a plea for funding the Navajo Nation water settlement from both federal and state sources.”

And he wanted the video completed and broadcast in time to fit the anticipated schedule for lobbying Congress.

D’Antonio even provided KNME an outline of the production, with suggested camera shots, snippets of script and recommended cast.  Though KNME did not adopt the State Engineer’s suggestions in full, the themes, tone and message of “The Water Haulers” came straight from the State’s Engineer’s proposal.

The Navajo Nation Water Rights Commission wrote KNME to endorse the State Engineer’s proposal.  They had sat across the table from the State Engineer for years, but now their interests were aligned.  The Commission wanted assurances that the show would meet the lobbying time frame, and “expressed its concern that its perspective, and the perspective of the Navajo people, be fully incorporated into the project.”

The Navajo’s letter to KNME was written by Judge Ray Gilmore, chairman of the Navajo Water Rights Commission.  Both he and D’Antonio were featured prominently in the eventual documentary.

KNME agreed to the proposal.  Then came the contract negotiations.  KNME would be “the contractor,” providing a product, the documentary, to the State Engineer and the Navajo nation.  The Navajos insisted on putting up half the cost so they would have the same say as the State Engineer in the project.  While KNME insisted on verbiage that it would retain editorial control, the State Engineer’s office made it clear that those paying for the project would have final approval rights.  KNME also agreed to allow the other parties to review the script and video before final production.

The State Engineer did not use public funds for his share of production costs.  He secured $15,000 from The Healy Foundation and passed it along to KNME.

KNME set to work preparing a script for review by its clients.  The script was sent to the Navajo Nation and Office of State Engineer on September 18, 2006.  In the cover letter accompanying the script, Tish Bravo, the show’s producer, wrote, “It behooves all of us to ask questions, raise concerns and be vocal at this point in the process as I will use this script as my guide in moving forward.”  She asked for written comments.  A conference call among the parties would follow.

The Navajo Nation took her at her word.  Their concerns about the draft script foreshadow a major change in the project’s editorial direction.

A Metamorphosis from Documentary to Infomercial

The draft script circulated by Tish Bravo contained slots close to the end for two people to express their opposition to the Navajo Nation water settlement.  They were described as “Navajo skeptic” and “protesting rancher.”  The Navajo skeptic would “explain the frustration of giving up water rights claims to non-Navajos”  and express skepticism that the federal government would follow through. “Heard such promises before,” the draft  stated in the block for the skeptical Navajo’s spot in the script.

The protesting rancher would explain “concerns over agricultural use” and “opinion of perceived unfair apportionment for Navajo use.”

Bravo’s draft script encountered resistance from KNME’s Navajo clients, as shown by two documents unearthed in the litigation.  One document was Bravo’s draft returned with typewritten comments suggesting there was no legitimate opposition to the settlement.  The other was an e-mail from a consultant to the Navajo Water Rights Commission.  Those comments are the most telling:

I do feel some concern, however, on how the video is proposed to end in that it seems to end with a couple of skeptics, a navajo and a rancher, and this is rebutted by representatives of the NN [Navajo Nation] and NM [New Mexico].  How much skepticism is there actually out there towards this project?  We might want to think about the placement of the skepticism in the next round of script-video comment.  Depending on how the video is looking we might want to spread the skeptics out a little more and end the video on the positive attributes of the Settlement.  With the way it looks just on paper now, it might leave the viewer wondering more if the Settlement is a good idea when we want him to end with an aura of positive, confirmed support for it.

The conference call between KNME, the Navajos and the State Engineer took place. The script was redone.  The roles for a skeptical Navajo and protesting rancher disappeared.

It was a major editorial change, but no documents discussing the script re-write can be found in the documents KNME has disclosed.  E-mails flew to schedule the conference call to discuss the Navajo and State Engineer comments on the draft script, but no notes of the key conference call have been turned over.  All we know for sure is that following the Navajos’ objections, the script was revised to completely remove any skeptical voices from the production.

Coincidentally, the original story line/script proposed by the State Engineer also omitted any viewpoints critical of the settlement.

The Navajo got a broadcast that left the viewer with the impression they desired to impart.  The program closes with two U.S. Senators, a Congressman, and Utah’s governor praising the settlement.  The President of the Navajo Nation compares the $800 million for pipelines on his nation’s land to the far larger cost of the war in Iraq.  Black and white file footage from the Fifties shows a baby splashing in a tub while a baritone voice-over declares:  “You and I need to understand and support the water projects affecting our communities.”  The final words in the program are uttered by an old Navajo man, and translated by his daughter: “There shouldn’t be any argument over water because it belongs to everybody.  We should all just love one another and combine and collaborate together.”

Tish Bravo no longer works at KNME.  We tracked her down to Washington, D.C., where she is employed by Sirens Media.  She did not respond to our telephone message asking if she could explain why her script was revised to eliminate viewpoints to which KNME’s Navajo client had raised objection.

KNME Resists Opening Its Files, Raising More Questions

The skeptical voices did not long stay quiet after the one-sided “documentary” aired in January 2007.  KNME began receiving complaints.  Letters to the editor blasted the production.  That June, Victor Marshall, attorney for the San Juan Agricultural Water Users Association, one of the parties opposed to the settlement, served KNME a public records request.  He also served his request on the State Engineer, the University of New Mexico, the Governor, the Interstate Stream Commission, and Albuquerque Public Schools, which is a stakeholder in KNME.

Marshall pretty much asked for everything having to do with the financing and production of “The Water Haulers.”

KNME responded to Marshall with a June 27, 2007, letter stating it was giving him “the only documents in KNME’s possession [and] also the University’s possession that are responsive” to his request.  The only thing KNME turned over was an unsigned copy of the contract with the State Engineer.

A few records Marshall obtained from the other parties suggested that there was much more KNME and UNM were holding back.  He filed suit in August 2007 demanding that KNME and the other parties be ordered to turn over all documents covered by his request.  The State Risk Management Department engaged the Santa Fe firm of Long, Pound and Komer to provide a defense at the cost of $150 an hour for senior attorneys and $60-90 an hour for less experienced lawyers.

Suddenly, KNME had a lot more documents in its files.  In mid November it delivered 1,094 pages of documents.  A month later came a “privilege log” describing another 37 documents KNME was refusing to disclose. Numbers one and two on the list are a journal containing notes by Tish Bravo, the producer, “related to reflections on, substance of, and editorial changes to documentary.”  Notes by KNME’s Director of Content, Chad Davis, on the creative and editorial process for the production are also being withheld.  An e-mail from Davis to Bravo transmitting typed editorial comments is being held back.  The privilege log describes letters, e-mails, draft contracts, and notes by other members of the production staff among the last documents KNME is refusing to make public.

KNME argued those 37 documents were exempted from disclosure under the New Mexico Inspection of Public Records Act.  It claimed it could withhold the documents under a “thought process” exception.  No such exception is provided explicitly in the Act, though KNME cited a 1971 court case as its justification.  Presumably, this “thought process” exception arose under the “or as otherwise required by law” exception set forth in the Inspection of Public Records Act.

The “thought process” exception is potentially so sweeping it could completely swallow the entire law.  “Certainly one would hope there’s thought process in all government communications,” snickers attorney Marshall, “despite all the evidence to the contrary.”

Older cases may have suggested a “thought process” exemption for a very limited number of documents.  It is not clear that those old cases would apply to e-mails among production staff or other documents KNME is holding back.  But a recent New Mexico Supreme Court decision appears to close the door completely to withholding documents under KNME’s argument.  In Republican Party v. New Mexico Department of Taxation and Revenue, the Court ruled that no exceptions are recognized to the Inspection of Public Records Act except those explicitly articulated in the Act itself, or as required by constitutional law.  The New Mexico State Constitution does not contain a “thought process” clause.

The letter preceding KNME’s privilege log also raised objections under the journalist shield law and attorney-client privilege.  None of the documents described on the log itself, however, are communications between any attorney and client.  Nor do they describe any information from any confidential source, a prerequisite for invoking the shield law.

While KNME was holding back documents, it was also trying to get rid of the case on hyper-technical grounds.  It sought to dismiss the lawsuit with the argument that, since the original public records request was signed by Marshall, the lawsuit had to be brought in his name and not the name of the client for whom he was acting.  That would have required the suit to be dismissed, but merely refiled under Marshall’s name.

KNME succeeded in convincing Judge Nan Nash of the Second Judicial District.  Marshall appealed.  The New Mexico Foundation for Open Government filed a friend of the court brief in support of his appeal.  In 2011 the New Mexico Supreme Court unanimously ruled that an attorney could file a public records request for a client and then bring suit in the client’s name.

The case was remanded from the Supreme Court back to Judge Nash.  In September 2011 she ordered the parties to participate in mediation to try to settle the dispute.  With penalties of up to $100 day running since June 2007, KNME is facing a potential cumulative fine exceeding $180,000.  Marshall complains that mediation has not occurred because KNME and the other defendants will not make someone available with authority to bind everyone to the terms of settlement, which would include payment of his attorney fees and costs, payment of the statutory penalties, and disclosure of the remaining documents.  The attorney for KNME declined to speak with us so we could not get his explanation as to why mediation has not been attempted and why KNME continues to resist a request for public records.

Ironically, while KNME has been erecting barriers to disclosing public records, it has simultaneously portrayed itself as a champion of transparency in government.  In November 2009 it co-sponsored with the New Mexico Foundation for Open Government and the now-defunct New Mexico Independent a seminar on obtaining access to public records.  The seminar promised to help people who “hit a brick wall” when “looking for information that can only be found [in] the public records of a governmental agency or office.”

[Ed. note:  The original version of this report underestimated KNME's potential fines.  The report has been corrected to state KNME is facing a potential fine exceeding $180,000]

 

[Disclosure:  The author of this report was a panelist on KNME's public affairs roundtable "In Focus" for several years before announcing in July 2010 he was leaving for a period of extended travel.  He was an independent contractor paid $100 for preparation and taping of each program.  Jim Scarantino had no role in the production of "The Water Haulers."]

 

 

 

 

 

 

 

Here is the final product, as broadcast by KNME:  The Water Haulers.