Republican Party of N.M. v. N.M. Taxation & Revenue Dep't

Decision Date28 June 2012
Docket NumberNo. 32,524.,32,524.
PartiesREPUBLICAN PARTY OF NEW MEXICO and Lyn Ott, individually and in her capacity as Help America Vote Act (HAVA) Director for the Republican Party of New Mexico, Plaintiffs–Petitioners, v. NEW MEXICO TAXATION AND REVENUE DEPARTMENT, Motor Vehicle Division and Luis Carrasco, custodian of records for the New Mexico Taxation and Revenue Department, Motor Vehicle Division, Defendants–Respondents.
CourtNew Mexico Supreme Court

OPINION TEXT STARTS HERE

Bowles and Crow, Jason Bowles, B.J. Crow, Peifer, Hanson & Mullins, P.A., Charles R. Peifer, Lauren Keefe, Albuquerque, NM, for Petitioners.

Long, Pound & Komer, P.A., John B. Pound, Mark T. Baker, Jennifer A. Attrep, Jessica M. Hernandez, General Counsel for the Office of the Governor, Santa Fe, NM, for Respondents.

Luebben Johnson & Barnhouse, L.L.P., Dolph Barnhouse, Los Ranchos de Albuquerque, NM, for Amicus Curiae New Mexico Foundation for Open Government.

OPINION

SERNA, Justice.

{1} “All political power is vested in and derived from the people: all government of right originates with the people, is founded upon their will and is instituted solely for their good.” N.M. Const. art. II, § 2. The co-equal branches of the government of the State of New Mexico, N.M. Const. art. III, § 1, like those of the United States of America, are expressly limited to the exercise of powers delegated to them by our citizens. Our democratic system of government necessarily “assumes the existence of an informed citizenry.... Without some protection for the acquisition of information about the operation of public institutions ... the process of self-governance contemplated by the Framers would be stripped of its substance.” Houchins v. KQED, Inc., 438 U.S. 1, 31–32, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978) (Stevens, J., dissenting). To give practical effect to this principle, our Legislature enacted the Inspection of Public Records Act, NMSA 1978, §§ 14–2–1 to –12 (1947, as amended through 2011) (IPRA). “Recognizing that a representative government is dependent upon an informed electorate,” the Legislature declared “that all persons are entitled to the greatest possible information regarding the affairs of government.” Id. § 14–2–5.

{2} Although the public's right to access information concerning the inner workings of its government is considerable, it is not without limit. Under the New Mexico Constitution, the people delegate certain duties to elected officials, particularly the Governor, in whom is vested the “supreme executive power of the state.” N.M. Const. art. V, § 4. Our constitution and laws recognize that under certain circumstances the Governor is entitled to a limited degree of privilege—that is, protection from public disclosure—in the course of performing his or her duties.

{3} This appeal, our first occasion to consider executive privilege in the context of a public records request, presents a conflict between these two important principles. Petitioners Republican Party of New Mexico and Lyn Ott, individually and as the Director of the Help America Vote Act for the Republican Party (collectively, Petitioners), requested certain government documents. Respondents New Mexico Taxation and Revenue Department, Motor Vehicle Division, and Luis Carrasco, Custodian of Records (collectively, Respondents) withheld some of those documents on several grounds, including executive privilege. While recognition of some form of executive privilege “is required by the Constitution of the State of New Mexico,” State ex rel. Att'y Gen. v. First Judicial Dist. Court, 96 N.M. 254, 257, 629 P.2d 330, 333 (1981), it falls on this Court to delineate under what circumstances the executive may properly invoke that privilege pursuant to IPRA. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803) (“It is ... the province and duty of the judicial department to say what the law is.”).

I. BACKGROUND

{4} Petitioner Ott filed an IPRA request with the Motor Vehicles Division (MVD), a division of the Taxation and Revenue Department, after she read an Associated Press article about then-Governor Bill Richardson's executive order directing the MVD to require two forms of identification before issuing a driver's license to any foreign national. With the stated aim of investigating whether individualswere using New Mexico drivers' licenses to unlawfully register to vote, Ott requested documents relating to the issuance of drivers' licenses to foreign nationals, including documents reflecting the number of such licenses issued, as well as documents relating to an audit of the license program ordered by Governor Richardson. Respondents complied with the request by mailing Ott 150 pages of material, including emails and spreadsheets, but indicated in an accompanying cover letter that certain information had been redacted pursuant to attorney-client privilege and executive privilege, as well as the federal Driver Privacy Protection Act, 18 U.S.C. §§ 2721–2725 (1994, as amended through 2000) (DPPA) and its state analogue, NMSA 1978, § 66–2–7.1 (2007) (NMDPPA) (collectively, Privacy Acts), which prohibit the disclosure of private information related to drivers' licenses. Ott appealed directly to the Taxation and Revenue Department, requesting unredacted versions of the documents. Respondents did not send the requested unredacted documents but provided redacted copies of additional responsive documents.

{5} Petitioners filed suit in the Second Judicial District Court to compel Respondents to release the documents in unredacted form. Both parties filed motions for summary judgment. Petitioners asserted that executive privilege was inapplicable, and that disclosure was required under a research exception to the Privacy Acts.1 Respondents argued that all documents were properly redacted. The district court consolidated the motions and held a hearing on the applicability of the Privacy Acts, executive privilege, and attorney-client privilege to the documents at issue. The district court granted Respondents' motion for summary judgment in part, concluding that private identifying information was properly redacted pursuant to the Privacy Acts. After conducting an in camera review of the documents redacted on privilege grounds, the district court concluded that both the attorney-client and executive privileges were properly invoked and not overcome by Petitioners' showing of need. Petitioners filed a motion for reconsideration which the district court denied.

{6} Petitioners appealed to the Court of Appeals. The Court of Appeals affirmed the district court's grant of summary judgment regarding the Privacy Act redactions. Republican Party of N.M. v. N.M. Dep't of Tax. & Rev., 2010–NMCA–080, ¶¶ 14–16, 148 N.M. 877, 242 P.3d 444. The Court of Appeals determined that the resolution of the appeal would depend on the applicability of the deliberative process privilege, id. ¶ 32, which the court characterized as “protect[ing] the government's decision-making process,” id. ¶ 34. The court then concluded that the deliberative process privilege shielded the documents at issue from disclosure. Id. ¶¶ 34–36. The court also held that Respondents properly invoked attorney-client privilege to withhold certain documents. Id. ¶ 40.

{7} Petitioners then petitioned this Court for certiorari, which we granted to review Respondents' redactions pursuant to the Privacy Acts and executive privilege. Amicus New Mexico Foundation for Open Government joined Petitioners in requesting that this Court reverse the Court of Appeals' ruling on executive privilege and the Privacy Acts. Petitioners did not seek this Court's review over the Court of Appeals' upholding of redactions made on the basis of attorney-client privilege. Eight documents thus remained at issue, six of which Respondents had redacted pursuant to claims of executive privilege, and two of which they had redacted pursuant to the Privacy Acts. The documents redacted on the grounds of executive privilege included communications regarding New Mexico's negotiations with the Mexican government regarding access to certain identity documents, and discussions related to implementing the audit of the driver's license program. See Republican Party, 2010–NMCA–080, ¶ 26, 148 N.M. 877, 242 P.3d 444.

II. MOOTNESS

{8} Events occurring since this Court granted certiorari require a close look at whether we may exercise jurisdiction over this appeal. See Smith v. City of Santa Fe, 2007–NMSC–055, ¶ 10, 142 N.M. 786, 171 P.3d 300 ([I]t is incumbent upon the appellate court to raise jurisdiction questions sua sponte when the Court notices them.”). Shortly after taking office, Governor Susana Martinez issued Executive Order 2011–003, entitled “Limiting the Claim of Executive Privilege to Promote Transparency and Open Government.” This order states that executive privilege “can only be invoked with written authorization from the Office of the Governor,” and may be invoked to shield from disclosure certain “communications between or among the Governor, a Cabinet Secretary, an agency head or any of their high-level advisors.” In addition, subsequent to our grant of certiorari, the parties filed a joint motion to approve a settlement that would permit all documents requested to be transferred to the Secretary of State rather than to Petitioners, and would require this Court to vacate the Court of Appeals' opinion. We denied that motion.

{9} At oral argument, the parties stated that they now agreed that executive privilege did not protect the remaining documents from disclosure. Respondents also indicated that the current administration would not have invoked executive privilege in the first instance with respect to the disputed documents. While we acknowledge and commend the efforts of the parties to resolve their dispute, it is for this Court to decide whether the case is moot and whether we retain jurisdiction to issue an opinion.

{10} “As a general rule, ...

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