Opinion
Docket No. 31,285
07-31-2012
LAUREL C. EDENBURN, Plaintiff-Appellant, v. NEW MEXICO DEPARTMENT OF HEALTH and DEBORAH BUSEMEYER, Appointed Custodian of Records in the Department of Health, Defendants-Appellees.
Becht Law Firm Paul F. Becht Albuquerque, NM for Appellant Long, Pound & Komer, P.A. Mark E. Komer Santa Fe, NM for Appellees
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Barbara J. Vigil, District Judge
Becht Law Firm
Paul F. Becht
Albuquerque, NM
for Appellant
Long, Pound & Komer, P.A.
Mark E. Komer
Santa Fe, NM
for Appellees
OPINION
BUSTAMANTE, Judge.
{1} Appellant, Laurel C. Edenburn, sought to obtain records from Appellee, the New Mexico Department of Health (DOH). After receiving some materials, but being denied others, Appellant filed a petition for a writ of mandamus to force DOH to disclose the withheld material. DOH moved for and was granted summary judgment. We reverse.
For ease of reference we will refer to both Appellees throughout the Opinion as "DOH."
I. BACKGROUND
{2} Edenburn's first request letter was sent on August 20, 2007. It requested access to seven categories of information related to the Title V Abstinence Education Block Grant program managed by DOH. The letter referenced New Mexico's Inspection of Public Records Act (IPRA). See NMSA 1978, § 14-2-1 to -12 (1947, as amended through 2011). The letter was received on August 24, and DOH responded on that day, stating that the request was received and a response would be provided "within [fifteen] days in accordance with the [IPRA], unless we encounter difficulties in retrieving the [material]." See § 14-2-11 (setting forth requirements for denials of written requests). On September 10, seventeen days after receipt, DOH requested an extension "on your [IPRA]" request to September 15. On September 14, DOH notified Edenburn by email that the records would be available for inspection on September 18. Edenburn inspected them at the DOH offices. DOH notified Edenburn on September 21 that there "may be additional documents which may be responsive to your Public Records Request," and requested an extension to "provide careful review with the expectation of providing [Edenburn] with any responsive documents no later than the first week of October 2007." On October 10, Edenburn notified DOH that no additional documents had been received and she requested a number of documents that were not included in the inspection. DOH provided an additional set of documents to Edenburn on October 25.
{3} On November 2, Edenburn sent two letters to DOH referencing IPRA and identifying documents still not received. One of these letters requested copies of an email string and a draft letter, which are the subjects of the present enforcement action. For the sake of clarity, we will refer to these as the "email string" and the "draft letter." The draft letter request was received by DOH on November 7. Fourteen days later, DOH responded, stating that these two items were protected by executive privilege and would not be produced. Edenburn requested additional information about the basis for executive privilege on November 28, including which officials were involved in "sending or receiving" these items, whether the items were related to "law or policymaking," and, if so, the laws or policies to which they related, and whether the items were "deliberative in nature." On December 4, Edenburn sent another letter, stating that "relative to handling my [November 2] request for public records, the [DOH] has not complied with the terms of Section 14-2-11 of [IPRA]." See § 14-2-11 (stating that denial of access to public records must be made within fifteen days of receipt of the request and include the names of the persons responsible for the denial and a description of the records sought). DOH responded on January 4, 2008. This letter stated that the email was "deliberative and predeterminative in nature and was written before any final determinations were made." It also clarified that the draft letter was not subject to executive privilege, but would not be produced because it was a draft and "therefore [is] not subject to public records status."
{4} Edenburn filed a complaint to enforce provisions of IPRA and for writ of mandamus or injunction on February 19, 2009. An amended complaint was filed on June 4, 2009, to change the name of the nominal defendant and add a request for attorney fees and costs. The complaint refers to Edenburn's letter of November 2, 2007, in which she requested access to inspect the DOH's records, including those previously withheld. The complaint alleges that "[DOH has] failed to comply with Section 14-2-11(B) . . . in that [DOH] failed to set forth the names and titles or positions of each person responsible for the denial . . . within fifteen (15) days after the request was received." In addition, the complaint alleges that "[DOH] should be required to pay damages to [Edenburn] not to exceed $100[] per day for each day [DOH] is not in compliance until a written denial is issued." DOH moved for summary judgment. DOH's motion was granted by two separate orders. The district court found that (1) the "rule of reason" applied to the draft letter and, under that rule, "countervailing public policy protects drafts such as this document from disclosure"; and (2) the email string was protected from disclosure by the deliberative process privilege, a form of executive privilege. See generally Russell L. Weaver & James T.R. Jones, The Deliberative Process Privilege, 54 Mo. L. Rev. 279 (1989). The district court did not conduct an in camera review of either document. The district court denied Edenburn's claim for statutory damages. This appeal followed.
II. DISCUSSION
A. The Republican Party Decision
{5} The primary question before the Court in this case is whether summary judgment was properly granted on the ground that the deliberative process privilege applied. We determine that it was not. We base this decision on the New Mexico Supreme Court's ruling in Republican Party of New Mexico v. New Mexico Taxation & Revenue Department (Republican Party II), 2012-NMSC-___, ___ P.3d ___ (No. 32,524, June 28, 2012), which was decided after the present appeal was filed. In Republican Party II, the issue was whether the deliberative process privilege applied to prevent disclosure of documents in the context of a request for public records by plaintiffs who were "research[ing] whether undocumented aliens were voting in federal, state, and local elections in New Mexico." Republican Party of N.M. v. N.M. Taxation & Revenue Dep't (Republican Party I), 2010-NMCA-080, ¶ 3, 148 N.M. 877, 242 P.3d 444 (internal quotation marks and citation omitted). The Republican Party of New Mexico sought records relating to driver's licenses issued to "individuals who are not citizens or legal residents of the United States." Id. (internal quotation marks and citation omitted). This Court held that the privilege applied and that the documents sought were properly withheld. Id. ¶ 36. On certiorari, the New Mexico Supreme Court reversed. Republican Party II, 2012-NMSC-___, ¶ 38. Several holdings in that case are dispositive of the matter before us because they eliminate the bases on which DOH relied to withhold the email string and draft letter, and on which the district court's ruling rested. We first summarize the relevant holdings of Republican Party II, and then apply them to this case.
{6} As a preliminary matter, we note that the Supreme Court did not indicate explicitly whether Republican Party II would apply retroactively or prospectively. In New Mexico, there is "a presumption of retroactivity for a new rule imposed by a judicial decision in a civil case." Beavers v. Johnson Controls World Servs., Inc., 118 N.M. 391, 398, 881 P.2d 1376, 1383 (1994) (rejecting the "bright-line rule of retroactivity in all civil cases" set out in Harper v. Virginia Department of Taxation, 509 U.S. 86 (1993)). Therefore, we conclude that Republican Party II applies retroactively in its entirety.
{7} First, our Supreme Court negated the "rule of reason" analysis adopted in State ex rel. Newsome v. Alarid, 90 N.M. 790, 797, 568 P.2d 1236, 1243 (1977) (internal quotation marks and citation omitted), as a "non-statutory exception to disclosure." City of Farmington v. The Daily Times, 2009-NMCA-057, ¶¶ 8, 11, 146 N.M. 349, 210 P.3d 246. It stated that, instead, "courts now should restrict their analysis to whether disclosure under IPRA may be withheld because of a specific exception contained within IPRA, or statutory or regulatory exceptions, or privileges adopted by this Court or grounded in the constitution." Republican Party II, 2012-NMSC-___, ¶ 16.
{8} Second, our Supreme Court held that "no deliberative process privilege exists under New Mexico law." Id. ¶ 42. The Court recognized that the term "executive privilege" includes several different types of privilege, including the deliberative process privilege and the executive communications privilege. Id. ¶ 18. Although the communications privilege "is required by the Constitution of the State of New Mexico, specifically the separation of powers clause contained in Article III," the deliberative process privilege is rooted in the common law. Id. ¶ 35 (alteration, internal quotation marks, and citation omitted); see N.M. Const. art. III, § 1. Because New Mexico recognizes only those privileges "required by the Constitution, the Rules of Evidence, or other rules of this Court," such a common law privilege is not recognized. Republican Party II, 2012-NMSC-___, ¶¶ 35, 38 (internal quotation marks and citation omitted). The Court stated, "Allowing the executive to resist disclosure on the basis of a common law deliberative process privilege not otherwise recognized under our state's constitution would frustrate IPRA's guiding purpose of promoting government transparency." Id. ¶ 38.
{9} Third, the Court held that the communications privilege is itself limited. It applies only to communications "connected to the chief executive's decisionmaking, as opposed to other executive branch decisionmaking," and only to those "to or from individuals in very close organizational and functional proximity to the Governor." Id. ¶¶ 44-46 (alteration, emphasis, internal quotation marks, and citation omitted). And "the privilege . . . [is] reserved to the constitutionally-designated head of the executive branch—the Governor." Id. ¶ 47. Consequently, only the Governor may assert the privilege. Id.
{10} Finally, the Supreme Court addressed how an assertion of the communications privilege should be evaluated in the context of IPRA and refined the procedures set out in earlier cases and different contexts. The procedures for evaluating executive privilege, first articulated in State ex rel. Attorney General v. First Judicial District Court of New Mexico, 96 N.M. 254, 261, 629 P.2d 330, 337 (1981), required the court to "balance the public's interest in preserving confidentiality to promote intra-governmental candor with the individual's need for disclosure of the particular information sought." Id. at 258, 629 P.2d at 334. Under First Judicial's approach, the agency must first show that the privilege applies. Id. Next, the requester must "show good cause for the production of the requested information." Id. If good cause is shown, then "the court must then conduct an in camera examination of the requested material," and "be satisfied that the . . . material would be admissible in evidence and that it is otherwise unavailable" to the requester. Id. If "these prerequisites are met," the materials must be disclosed "provided that the public's interest in preserving confidentiality does not outweigh the specific needs of the movant." Id.
{11} The Republican Party II Court distinguished First Judicial, noting that it "involved a discovery dispute, not a public records request." Republican Party II, 2012-NMSC-___, ¶ 49. The Court held that "a party requesting public records under IPRA need not assert any particular need for disclosure." Id.; see § 14-2-8(C) ("No person requesting records shall be required to state the reason for inspecting the records.") In addition, the Court held that First Judicial's final balancing of the interests of the movant and the public's interest in confidentiality "does not apply to claims of executive privilege under IPRA." Republican Party II, 2012-NMSC-___, ¶ 49. "Instead, courts considering the application of executive privilege to an IPRA request must independently determine whether the documents at issue are in fact covered by the privilege, and whether the privilege was invoked by the Governor, to whom the privilege is reserved." Id.
{12} The overriding message of Republican Party II is that "every citizen has a fundamental right to have access to public records." Bd. of Comm'rs of Doña Ana Cnty v. Las Cruces Sun-News, 2003-NMCA-102, ¶ 16, 134 N.M. 283, 76 P.3d 36 (internal quotation marks and citation omitted); see § 14-2-1(A). The purpose of IPRA is "to ensure . . . that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of public officers and employees." Section 14-2-5. And "[t]his right is limited only by the Legislature's enumeration of certain categories of records that are excepted from inspection." Republican Party II, 2012-NMSC-___, ¶ 13.
1. Email String
{13} DOH argued in the district court that the deliberative process privilege applied to the email string in question because it was between DOH employees and was "part of the internal decision-making process surrounding the [DOH]'s determination of permissible and appropriate uses of remaining available federal funding for the 2007 fiscal year." Because New Mexico does not recognize the deliberative process privilege, that privilege cannot prevent disclosure. To the extent that DOH relies on the communication privilege in First Judicial, that privilege does not apply either. DOH does not assert that the email string was a communication involving the Governor, nor was the privilege asserted by the Governor. The email string is disclosable under IPRA.
2. Draft Letter
{14} IPRA defines public records as
all documents, papers, letters, books, maps, tapes, photographs, recordings and other materials, regardless of physical form or characteristics, that are used, created, received, maintained or held by or on behalf of any public body and relate to public business, whether or not the records are required by law to be created or maintained.Section 14-2-6(F).
{15} The parties do not dispute that the requested letter was a draft. Thus, there is no dispute of a material issue of fact; rather, the only question is whether draft documents fall within IPRA's definition of public records. It appears that the district court resolved this question in the affirmative and then applied the "rule of reason" to conclude that public policy against disclosure outweighed the general presumption in favor of public access to public records.
{16} DOH argues that draft documents are not public records and, alternatively, if they are public records, that countervailing public policy prohibits disclosure of them. DOH's argument is belied by the broad language of the statute. Under IPRA, public records include "all documents . . . used, created, received, maintained or held by or on behalf of any public body and relate to public business, whether or not the records are required by law to be created or maintained." Section 14-2-6(F); see City of Farmington, 2009-NMCA-057, ¶ 7 (stating that, under IPRA, public records are "broadly defined"). IPRA provides for eight exceptions to this definition, which further refine the definition of "public record" and highlight the broadness of the basic definition reflecting the general presumption in favor of public access to records. See Las Cruces Sun-News, 2003-NMCA-102, ¶ 11 ("Each inquiry starts with the presumption that public policy favors the right of inspection."). DOH provides no argument based on the language of the statute that demonstrates how drafts are excluded from this broad definition.
{17} Furthermore, and most persuasively, the Court's recent holding in Republican Party II requires us to treat as exhaustive IPRA's definition and specific exceptions. 2012-NMSC- ___, ¶ 16. Unlike open records statutes in some other states, IPRA's definition does not exclude draft documents. In addition, draft documents do not fall within one of the exceptions articulated by the Legislature. Thus, the draft letter in question here is a public record.
See Conn. Gen. Stat. Ann. § 1-210(b)(1) (West 2011) (exempting "[p]reliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure"); 5 Ill. Comp. Stat. Ann. 140/7(f) (West 2011) (exempting "[p]reliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated"); Kan. Stat. Ann. § 45-221(a)(20) (West 2011) (exempting "[n]otes, preliminary drafts, research data in the process of analysis, unfunded grant proposals, memoranda, recommendations or other records in which opinions are expressed or policies or actions are proposed").
--------
{18} In Newsome, the Court wrote that "[u]ntil the Legislature gives us direction [as to draft documents], the courts will have to apply the 'rule of reason' to each claim for public inspection as they arise." 90 N.M. at 797, 568 P.2d at 1243. As noted in Republican Party II, "[t]he Legislature has since responded to the Court's request, obviating any need that existed for application of the 'rule of reason,' by enumerating specific exceptions to disclosure[.]" 2012-NMSC-___, ¶ 16. There being no specific exception, statute, regulation, or privilege applicable to exempt draft documents from "public records," we conclude that the draft letter should be disclosed.
B. Damages, Costs, and Attorney's Fees
{19} Given that we are reversing the judgment in favor of DOH and remanding for further proceedings, we determine that it is premature to address the issue of damages, fees, and costs. The district court did not consider the requests on their merits given its prior ruling. It would be best to allow the district court to rule on the request in the first instance in light of our ruling.
II. CONCLUSION
{20} We reverse the district court as to both the email string and draft letter because neither the deliberative process privilege nor the rule of reason, on which its grant of summary judgment in favor of DOH was based, are recognized in New Mexico. We remand for further proceedings consistent with this Opinion.
{21} IT IS SO ORDERED.
_________________
MICHAEL D. BUSTAMANTE , Judge
WE CONCUR:
_________________
CYNTHIA A. FRY, Judge
_________________
MICHAEL E. VIGIL, Judge