New Mexico ERB rejects Foy application

In a suit filed last month, Frank Foy, the former chief investment officer at the New Mexico ERB, had alleged he was pressured to invest in worthless securities run by money managers that had made political contributions to state governor Bill Richardson. He claimed the state's investments in allegedly worthless collateralized debt obligations issued by Vanderbilt Capital Advisors cost the ERB and the New Mexico State Investment Council a combined US$90m. (16 January 2009)

In the most recent correspondence between the ERB and Foy, the ERB accused Foy of possibly "mak[ing] it difficult if not impossible" for the ERB to respond since the request is overly broad, while Foy claimed the ERB had no "valid or good faith basis for refusing."

On January 27, Foy had requested the ERB provide him with board meeting minutes and recordings dating back to 2000 as well as any documents related to Vanderbilt, among others, according to an attachment to a complaint filed on February 11 against the ERB; ERB trustee and chairman Bruce Malott and ERB trustee Gary Bland. Bland is also investment head at the SIC.

Canepa & Vidal attorney Patricia Turner responded to Foy on behalf of the ERB: "In response to the request, be advised that the ERB has determined that the request is excessively burdensome and broad and is denied. The ERB cannot determine from the request the types of 'records' sought or the time period covered."

Turner also said the request "is an effort to avoid the applicable rules of procedure governing discovery in the litigation," and adds, "seeks pre-filing discovery from the ERB."

In the complaint, Foy's lawyer, Victor Marshall responds: "If a public agency can deny a citizen's right to inspect public documents because the documents might relate to a lawsuit, then the agency could draw a veil of secrecy around its records, as the ERB is attempting to do." Marshall could not be immediately reached for comment.

Vanderbilt Financial chief operating officer and counsel Kurt Florian, who is also named in the suit, and Caitlin Kelleher, spokeswoman for the governor, could not be immediately reached.

Neither Jeff Riggs, spokesman at the ERB, or Turner could be reached for comment as GP went to press.

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