State ex rel. Newsome v. Alarid

• Decision Date: 26 September 1977
• Docket Number: No. 11207,11207
• Citation: 90 N.M. 790,1977 NMSC 76,568 P.2d 1236
• Parties: , 3 Media L. Rep. 1129 STATE of New Mexico ex rel. Thomas Ray NEWSOME, Jr., Petitioner-Appellant, v. Phillip ALARID, Director of Personnel, University of New Mexico, Respondent-Appellee.
• Court: New Mexico Supreme Court

Page 1236

568 P.2d 1236

90 N.M. 790, 3 Media L. Rep. 1129

STATE of New Mexico ex rel. Thomas Ray NEWSOME, Jr., Petitioner-Appellant, v. Phillip ALARID, Director of Personnel, University of New

Mexico, Respondent-Appellee.

No. 11207.

Supreme Court of New Mexico.

Sept. 26, 1977.

Michael G. Rosenberg, Albuquerque, for petitioner-appellant

Rodey, Dickason, Sloan, Akin & Robb, W. A. Sloan, Carl H. Esbeck, Albuquerque, for respondent-appellee.

OPINION

EASLEY, Justice.

Newsome, a student newspaper reporter at the University of New Mexico, applied for an alternative writ of mandamus against Alarid, personnel director of the university, seeking to gain access to the information contained in all non-academic staff personnel records, except that which is exempt from disclosure under the terms of § 71-5-1, N.M.S.A.1953 (Supp.1975). However, the alternative writ and the order to show cause that were issued spoke in terms of divulging "all personnel records" without reference to statutory exemptions. The trial court at the show-cause hearing quashed the writ and dismissed the petition. We affirm in part and reverse in part. Newsome framed the issues by his requested conclusion of law asking that the court find that no portion of the personnel records of the employees was exempt under the disclosure statute or otherwise.

Alarid contended that confidential records are not "public records." The trial court agreed. Alarid claimed, and the trial court concluded, that information as to an employee's disabilities, illnesses, or injuries; type of military discharge; reason for leaving past employment or wanting to leave present employment; and arrest records were covered by the statutory exemptions or were of a sensitive and personal nature and should be kept confidential. The trial court concluded that the statutory exemptions cover letters of reference, matters of opinion such as answers to the questions "Would you rehire?" and "Why not hired?" and memoranda concerning disciplinary action.

Alarid testified that his office had thousands of personnel files to which Newsome was granted access by the alternative writ. He claimed that inspection should, therefore, be reasonable as to time, manner, and number of documents. The trial court so concluded.

Alarid testified that printed forms used for personnel information might contain both materials that could be made public and also confidential information. Each file may have letters of reference concerning employment or promotion; an application for employment; an applicant's resume; a personnel action notice; a payroll update sheet; letters or memorandum concerning personnel evaluations, infractions and disciplinary action; a referral for employment form; and letters from physicians concerning sick leave, temporary disability, inability to perform certain jobs, and other medical information.

Failure to Follow Rules

Counsel for Newsome was oblivious to, or chose to ignore, our N.M.R.Civ.App. 9(m)(2) (§ 21-12-9(m)(2), N.M.S.A.1953) which provides that the statement of proceedings shall contain:

(A) concise, chronological summary of such findings as are material to the review with appropriate references to the transcript. If any finding is challenged, it must be so indicated by a parenthetical note referring to the appropriate numbered point in the argument.

Where there is such a failure the reviewing court may assume the findings are correct and conclusive on appeal. Tafoya v. Tafoya, 84 N.M. 124, 500 P.2d 409 (1972). We need only determine if the trial court's conclusions and the judgment are correct, based upon the facts found. Springer Corp. v. American Leasing Co., 80 N.M. 609, 610, 459 P.2d 135, 136 (1969); American General Companies v. Jaramillo, 88 N.M. 182, 538 P.2d 1204 (Ct.App.1975).

Counsel for Newsome did not properly challenge specific findings nor properly refer either to the place where the finding is found in the transcript or to the point in his argument where the finding is challenged. However, there is little dispute as to the facts; and the right to inspect public documents being an important public issue, and being squarely before us for the first time, we will not, therefore, preclude review of the findings. Looking at the totality of the pleadings and the briefs we find that a sufficient challenge to the facts found by the trial court has been raised. We construe the requirement of our rule liberally in this case only, so that the cause on appeal may be determined on the merits. Montgomery v. Cook, 76 N.M. 199, 413 P.2d 477 (1966); DesGeorges v. Grainger, 76 N.M. 52, 412 P.2d 6 (1966).

Construction of the Statute

Section 71-5-1, supra, reads as follows:

Every citizen of this state has a right to inspect any public records of this state except:

A. records pertaining to physical or mental examinations and medical treatment of persons confined to any institutions;

B. letters of reference concerning employment, licensing or permits C. letters or memorandums which are matters of opinion in personnel files or students' cumulative files; and

D. as otherwise provided by law.

The statute is not entirely clear in Section A as to whether all medical records are exempt from disclosure.

A statute should be interpreted to mean what the Legislature intended it to mean, and to accomplish the ends sought to be accomplished by it. Burroughs v. Board of County Comm'ners, 88 N.M. 303, 540 P.2d 233 (1975). The entire statute is to be read as a whole so that each provision may be considered in its relation to every other part. Winston v. New Mexico State Police Bd., 80 N.M. 310, 454 P.2d 967 (1969). A construction must be given which will not render the statute's application absurd or unreasonable and which will not defeat the object of the Legislature. State v. Nance, 77 N.M. 39, 419 P.2d 242 (1966), cert. denied, 386 U.S. 1039, 87 S.Ct. 1495, 18 L.Ed.2d 605 (1967). Moreover, enactments of the Legislature are to be interpreted to accord with common sense and reason. Westland Development Co. v. Saavedra, 80 N.M. 615, 459 P.2d 141 (1969).

The intent of the Legislature to exempt doctors' opinions and other medical information in personnel files from disclosure is evident from an analysis of this statute, and the intent comports with common sense and reasoning as well as with good public policy.

Exemptions Under the Statute

Most of the information in dispute clearly falls within the exemptions allowed by statute. We hold that the personnel records of the employees which pertain to illness, injury, disability, inability to perform a job task, and sick leave shall be considered confidential under the statute and not subject to release to the public, except, of course, by the consent or waiver of the particular employee.

Letters of reference are specifically exempt from disclosure under Section B of the statute as are letters or memorandums which are matters of opinion as noted in Section C. The Legislature quite obviously anticipated that there would be critical material and adverse opinions in letters of reference, in documents concerning disciplinary action and promotions and in various other opinion information that might have no foundation in fact but, if released for public view, could be seriously damaging to an employee. We hold that letters of reference, documents concerning infractions and disciplinary action, personnel evaluations, opinions as to whether a person would be re-hired or as to why an applicant was not hired, and other matters of opinion are also exempt from disclosure under the statute.

Records Not Specifically Exempt

Alarid contends that in addition to those items which fall within the statutory exemptions, there are other matters of a personal or sensitive nature in the files that, for reasons of public policy, should be kept confidential and not be subject to disclosure. This argument is based on balancing the interests that favor disclosure against those interests that favor confidentiality.

Alarid claims that military discharge and arrest records are of a confidential nature but are not specifically exempted by statute. There is no New Mexico case which faces this issue squarely. Only three cases have mentioned this statute. Ortiz v. Jaramillo, 82 N.M. 445, 483 P.2d 500 (1971) (deciding that the county clerk's mag-card list of registered voters is a public record and must be made available on reasonable terms to persons demanding the list); Sanchez v. Board of Regents of Eastern New Mexico University, 82 N.M. 672, 486 P.2d 608 (1971) (holding that a preliminary list setting forth proposed faculty salaries which had not been submitted to or accepted by the faculty members was not a public record within the meaning of this statute); State v. Harrison, 81 N.M. 623, 471 P.2d 193 (Ct.App.1970), cert. denied, 81 N.M. 668, 472 P.2d 382 (1970) (assuming but declining to hold that there is an exemption under the statute permitting a criminal defendant to inspect police records during the investigation of a crime). Although the facts in Sanchez are not analogous to those in this case, the majority referred favorably to MacEwan v. Holm, 226 Or. 27, 359 P.2d 413 (1961) as a case containing a scholarly review of the entire field of the public's right of inspection of records. The dissenting opinion in Sanchez also quoted extensively from MacEwan. In the Oregon case the defendant sought to inspect data relating to nuclear radiation sources collected by the State Board of Health. The Oregon Supreme Court held that the data involved were "public records" for purposes of inspection by the public. We quote at some length from MacEwan because of the importance of that analysis in arriving at a decision herein.

The court stated:

Writings coming into the hands of public officers in connection with their official functions should generally be accessible to members of the public so that there will be an opportunity to determine whether those who have been...