Henry v. Gauman

• Docket Number: A-1-CA-39549
• Decision Date: 30 June 2023
• Parties: NANCY HENRY, Plaintiff-Appellant, v. JULIE GAUMAN, Records Custodian for the New Mexico Livestock Board, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

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NANCY HENRY, Plaintiff-Appellant,
v.
JULIE GAUMAN, Records Custodian for the New Mexico Livestock Board, Defendant-Appellee.

No. A-1-CA-39549

Court of Appeals of New Mexico

June 30, 2023

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Joshua A. Allison, District Court Judge

Harrison & Hart, LLC

Daniel J. Gallegos

Nicholas T. Hart

Ramon Soto

Albuquerque, NM

for Appellant

Hatcher Law Group, P.A.

Scott P. Hatcher

Robert A. Corchine

Carl J. Waldhart

Santa Fe, NM

for Appellee

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OPINION

JANE B. YOHALEM, JUDGE

{¶1} This appeal is brought under New Mexico's Inspection of Public Records Act (IPRA), NMSA 1978, Sections 14-2-1 to -12 (1947, as amended through 2023). Plaintiff Nancy Henry appeals the district court's order denying her petition to compel the records custodian for the New Mexico Livestock Board (the Board) to make available for inspection an investigative report (the Whetham Report) concerning the conduct of livestock inspector Kenneth Whetham, a Board employee. Henry claims on appeal that the district court erred in concluding that the Whetham Report in its entirety is exempt from disclosure under Section 14-2-1(C) of IPRA, the exemption for "letters or memoranda that are matters of opinion in personnel files." We agree with the district court that the entire report is exempt from disclosure and that, under the circumstances of this case, in camera review of the report by the district court was unnecessary. Concluding that IPRA was correctly applied and is determinative of the result we reach, we do not consider Henry's argument concerning Rule 1.7.1.12(C) NMAC.

BACKGROUND

{¶2} In 2018, Henry filed a complaint with the Office of the State Auditor (OSA) alleging that Whetham, who was employed by the Board as a livestock inspector (a law enforcement position), had engaged in timesheet fraud by billing the Board for

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his time while working at a second job. The OSA investigated Henry's complaint pursuant to the Audit Act, NMSA 1978, Sections 12-6-1 through -15 (1969, as amended through 2019). The Audit Act authorizes the OSA to investigate the financial affairs of state agencies. See § 12-6-3. The OSA, in written findings (the OSA Report), identified forty instances where auditors found that Whetham had been paid by the State while working at an unapproved second job. Inspection of the OSA Report under IPRA is not at issue in this case: it is undisputed that Henry had access to this report.

{¶3} The OSA sent a letter to the Board informing the Board of its findings. Upon receipt of the OSA letter, the Board retained an outside firm, Thompson & Associates Investigative Services, Inc., to interview Board employees, including livestock inspector Whetham, and to investigate any violation by Whetham of the State's or the Board's rules of conduct for employees. The purpose of the investigation was to determine whether the Board's rules on the billing of time had been violated, to investigate Whetham's general job performance and compliance with the Board's rules of conduct, and to advise the Board on whether disciplinary action should be taken. A letter to Whetham from the Board at the start of the investigation informed him that "the interview and investigation may form the basis of disciplinary action if it reveals that you have engaged in any behavior that is

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inconsistent with your obligation to the agency and the State of New Mexico and/or contrary to the agency's best interests."

{¶4} In 2019, after the investigation by Thompson & Associates had been completed, Henry sent an IPRA request to the Board's custodian of records, Julie Gauman, asking, in relevant part, for a copy of "the Investigation Report[] pertaining to . . . Kenneth Whetham."

{¶5} The Board denied Henry's request for inspection and copying of the Whetham Report stating, in relevant part: "We cannot permit inspection of the investigation report for Kenneth Whetham . . . because it is confidential and exempted from disclosure under [Section] 14-2-1(C)." The response identified the report as "records and documentation containing matters of opinion and documents concerning infractions and disciplinary actions," placed in an officer's personnel file.

{¶6} Henry filed a complaint in district court seeking a writ of mandamus or a court order compelling the Board to produce the Whetham Report. Both parties filed motions for summary judgment and responses. Prior to the district court's resolution of the parties' cross-motions for summary judgment, Henry served a third-party subpoena on Thompson &Associates seeking a copy of the Whetham Report. Henry also served discovery on the Board and included a request for production of the Whetham Report, as well as for production of communications and notes compiled

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during the Board's investigation of Whetham. The Board moved to quash the subpoena and the production request.

{¶7} Following a hearing on the pending motions, the district court granted the Board's motion for summary judgment and denied Henry's cross-motion for summary judgment. The district court found that "[t]he undisputed evidence shows that the Whetham Report 'concerns' a potential disciplinary action against Whetham, [an employee of the Board]," and concluded, "[t]hat evidence is sufficient to shield the Whetham Report from disclosure" under IPRA Section 14-2-1(C).

{¶8} The district court also granted the Board's motion to quash Henry's subpoena and her request for production of documents, finding that examination of the report by either Henry's counsel or by the district court in camera review was unnecessary and "immaterial to this [c]ourt's determination of whether the Whetham Report is exempt from disclosure under . . . IPRA." This appeal followed.

DISCUSSION

I. "Letters or Memoranda That Are Matters of Opinion in Personnel Files" Are Exempt From Inspection in Their Entirety Under IPRA Section 14-2-1(C)

{¶9} Henry argues that the Board's custodian of records was required to divide the Whetham Report into "factual matters concerning misconduct by a public officer related to that officer's role as a public servant" and "'matters of opinion' constituting personnel information" related to the officer's role as an employee.

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Henry agrees that the "matters of opinion" concerning discipline are exempt from disclosure under IPRA Section 14-2-1(C) but claims that "factual matters" must be disclosed. We do not agree. Henry's argument is based on a common misreading of both the IPRA statutory language and longstanding appellate precedent from our Supreme Court and this Court construing this exemption. We explain.

{¶10} Whether our Legislature intended the exemption in Section 14-2-1(C) to require the custodian of records to separate a single document concerning the discipline of an employee into "matters of fact" and "matters of opinion" raises a question of statutory interpretation, which we review de novo. See Dunn v. N.M. Dep't of Game & Fish, 2020-NMCA-026, ¶ 3, 464 P.3d 129 (noting that this Court reviews de novo disputes that require us to "construe the statute and apply the relevant case law to undisputed facts"). The primary goal in interpreting a statute is to give effect to the Legislature's intent. Id. ¶ 8. We begin the search for legislative intent by looking "first to the words chosen by the Legislature and the plain meaning of the Legislature's language." State v. Davis, 2003-NMSC-022, ¶ 6, 134 N.M. 172, 74 P.3d 1064 (internal quotation marks and citation omitted). "The application of the plain meaning rule does not, however, end with a formalistic and mechanistic interpretation of statutory language." Id. When the statutory language is "doubtful, ambiguous, or an adherence to the literal use of the words would lead to injustice, absurdity or contradiction," we...