BernCo DA wields the state’s records law to try and track the movements of felony defendants

Whose whereabouts should be visible to the public? And who has a right to privacy?

January 7, 2022 5:00 am

(Photo by Mario Tama / Getty Images)

Bernalillo County District Attorney Raúl Torrez made a public records request and — this won’t come as a surprise to anyone who’s ever filed one — received only some of the information he was after. 

On Dec. 2, the DA’s Office sought a list of all defendants on GPS monitoring. What came back was a list of everyone who was wearing an active ankle monitor that day, according to DA spokesperson Lauren Rodriguez.

Wording a records request can be tricky, not unlike making a wish with a genie. 

So Torrez will soon file another to get a list of everyone who was wearing a tracker in the full calendar years of 2020 and 2021, Rodriguez said, regardless of whether the device was deactivated at some point.

Torrez announced last month that what he’s ultimately after is GPS data about the physical whereabouts of every person charged with a felony who didn’t wait in jail for their day in court and was released wearing a locator instead. So far, the Inspection of Public Records Act is the shovel he’s using to dig up that info. 

If that information is considered a public record, that could mean the daily movements of any person wearing a court-ordered monitor are available to anyone. 

It’s worth noting that when people are on what’s called “pre-trial release,” they haven’t yet been convicted of a crime. They’ve only been charged with one.

Chief Public Defender Bennett Baur says Torrez’s move goes way too far and is akin to “big brother surveillance,” pointing out that many people who are charged with crimes are never convicted, and plenty of folks are mischarged or overcharged to begin with. He told KUNM News that if this location info was available to the public, it wouldn’t be too hard for someone’s enemy to track their movements. 

I can’t help but think of the convenience for stalkers, too. 


Under the state’s Inspection of Public Records Act (IPRA), everyone is entitled to government records, but not all government information is considered public.

For instance:

  • Records about physical or mental health exams and treatment
  • Law enforcement records that reveal confidential sources or evidence
  • Certain memos in personnel files

Those are all exempt.

There are more exceptions, too, in the state’s records law.

The DA’s public records request for GPS data is the culmination of months of concern and frustration he expressed to local media that the people who are supposed to be keeping an eye on defendants aren’t doing the job all the time. He told KOB back in April that there isn’t adequate supervision on evenings, weekends and holidays. 

His assertions stemmed from a case where a man on pre-trial release was accused by police of killing someone on a Friday night and then robbing a convenience store on Sunday, all while wearing an ankle monitor. 

Months later, Torrez also pinpointed a man who’d been charged in three home burglaries and then was later accused of breaking into cars while wearing an ankle monitor. 

The DA sought full GPS data in both cases using the public records law. Torrez says that location information should be public record, because it’s not listed among the exceptions. The court said no, that kind of thing is only released via judicial order, search warrant or stipulated protective order. So Torrez’s office is suing, alleging the 2nd Judicial District Court itself is breaking the law.

But wait. Why didn’t the DA’s Office go after the info in the more usual ways? 

Prosecutors tried in some cases, Rodriguez tells Source NM, but were foiled, naturally, by the Public Defender’s Office. 

Given the court’s unwillingness to share GPS information and the public defender’s opposition to the state receiving this information, neither a subpoena nor a protective order would be sufficient to allow us to use GPS information to track potential criminal activity,” she wrote in an email. “Because this information serves a legitimate law enforcement purpose and is not protected by any privacy right, a lawsuit under IPRA was our best remaining avenue to obtain the information.”

Torrez said he wants to use the GPS data to map where people have been and when, and compare that with the sites and times of recent crimes. 

He also said he wants to test whether pre-trial release is really working. 

And that right there could be the real end goal. Because all of this is kind of new. 

In 2016, New Mexico voters approved a constitutional amendment that did away with the cash bail system. The new-ish law allows judges to choose not to jail someone charged with a crime before they’ve been convicted. Judges can also detain people without a chance for release before their trial — no matter how much bail money they could have come up with under the old system. 

Torrez told the press that his prosecutors seem to have a 50/50 shot at getting a judge to lock someone up before a trial. They’ve been calling for another change in the system. 

And then just a few months ago, Gov. Michelle Lujan Grisham agreed

They’re proposing that instead of putting it on the state to prove someone is dangerous and should be incarcerated before their case is heard, people charged with violence should have to prove they can be released.

85% of people on pre-trial release in New Mexico do not catch any new charges. 

95% of people on pre-trial release in New Mexico are not arrested for or charged with a new violent offense.

This information comes from a study reviewing cases over the last few years — though not 2021 — by the New Mexico Statistical Analysis Center at the UNM Institute for Social Research.

Lujan Grisham is campaigning for re-election this year. Torrez is looking to leave his current job to become the next New Mexico Attorney General. Both Democrats’ campaign cycles will likely be bruised by the high rate of crime here, a cudgel consistently used by GOP opponents.

So it could be that months of loud criticism for pre-trial services and the lawsuit against the court and the waving of the IPRA flag are about more than figuring out if people were near crimes while wearing court-ordered trackers. 

The attempt to unlock defendants’ location info and subsequently reveal it to the public could also be about making sure these campaigns have something to say to the fearmongering that’s going to haunt 2022 oppo mailers through Election Day.

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Marisa Demarco
Marisa Demarco

Marisa Demarco is an Albuquerque-based journalist and lifelong New Mexican whose work has won national and regional awards. She's spent almost two decades as a reporter, producer and newsroom leader, co-founding the New Mexico Compass, and editing and writing for the Weekly Alibi, the Albuquerque Tribune and UNM's Daily Lobo. She began a career in radio full-time at KUNM News in late 2013 and covered public health and criminal legal reform for much of the last seven years. During the pandemic, she was also the executive producer for “Your NM Gov” and “No More Normal,” shows focused on the varied impacts of COVID-19 and community response, as well as racial and social justice.