April 21, 2022- Daniel Libit v. University of New Mexico Lobo Club, No. A-1-CA-38255

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Court of Appeals of New Mexico
Filing Date: April 21, 2022 Filed 4/21/2022 12:24 PM
No. A-1-CA-38255 Lh [> |
DANIEL LIBIT Mark Reynolds
Plaintiff-A ppellee,
V.
UNIVERSITY OF NEW MEXICO LOBO
CLUB; JALEN DOMINGUEZ, in his capacity
as Custodian of Records for the University of

New Mexico Lobo Club; UNIVERSITY OF

NEW MEXICO FOUNDATION, INC.; BOARD
OF REGENTS OF THE UNIVERSITY OF NEW
MEXICO; CHRISTINE LANDAVAZO, in her
Capacity as the Interim Custodian of Records for
the University of New Mexico,

Defendants-A ppellants.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Nancy J. Franchini, District J udge

Harmison & Hart, LLC
Nicholas T. Hart

Albuquerque, NM

for Appellee

Law Office of Marshall J. Ray LLC
Marshall J. Ray

Albuquerque, NM

for Appellants University of New Mexico Lobo Club and Jalen Dominguez.

Patrick D. Allen, General Counsel	1
Albuquerque, NM	2
Montgomery & Andrews, P.A.	3
Randy S. Bartell	4
Matthew A. Zidovsky	5
Santa Fe, NM	6
YLAW, P.C.	7
Michael S. Jahner	8
Albuquerque, NM	9
for Appellant University of New Mexico Foundation, Inc.	10
Long, Komer & Associates, P.A.	11
Nancy R. Long	12
Jonas M. Nahoum	13
Santa Fe, NM	14
for Appellant Regents of the University of New Mexico and Christine Landavazo	15
Martin & Lutz, PC	16
William L. Lutz	17
David P. Lutz	18
Las Cruces, NM	19
for Amicus Curiae New Mexico State University Foundation, Inc.	20
Miller Stratvert P.A.	21
Dylan O’Reilly	22
Luke A. Salganek	23
Santa Fe, NM	24
for Amicus Curiae New Mexico Highlands University Foundation, Inc.	25
Hector H. Balderas, Attorney General	26
John F. Kreienkamp, Assistant Attorney General	27
Santa Fe, NM	28
for Amicus Curiae New Mexico Attorney General	29

Peifer, Hanson, Mullins & Baker, P.A.	1
Gregory P. Williams	2
Albuquerque, NM	3
for Amici New Mexico Foundation for Open Government and Brechner Center for	4
Freedom of Information	5

OPINION	1
DUFFY, Judge.	2
{1} 	This consolidated appeal arises from two lawsuits brought by Plaintiff Daniel	3
Libit against Defendants the University of New Mexico Foundation, the University	4
of New Mexico Lobo Club,1 and the Board of Regents of the University of New	5
Mexico under the Inspection of Public Records Act (IPRA), NMSA 1978, §§ 14-2-	6
1 to -12 (1947, as amended through 2019). The Foundation and the Lobo Club are	7
private, nonprofit corporations that raise funds exclusively for the University—a	8
relationship governed by NMSA 1978, Section 6-5A-1 (2011) of the Public Finances	9
Act. The common issue presented in these appeals is whether Section 6-5A-1(D)	10
exempts records of the Foundation and the Lobo Club from public inspection.	11
Section 6-5A-1(D) states: “Nothing in this section subjects an organization2 to the	12
provisions of the Open Meetings Act . . . or makes its records, other than the annual	13
audit required under this section, public records within the purview of Section 14-2-1	14
1See Libit v. Univ. of N.M. Found. (Libit I), No. D-202-CV-2017-01620 (2d
Jud. Dist. Ct. June 26, 2018); Libit v. Univ. of N.M. Lobo Club (Libit II), No. D-202-
CV-2019-00290 (2d Jud. Dist. Ct. Dec. 9, 2019). The Lobo Club was not a party to
Libit I.2 The term “organization” is defined in Section 6-5A-1(A)(2) and is used
throughout the opinion strictly with this meaning in mind. There is no dispute that
the Foundation and Lobo Club are organizations within the meaning of the statute.

2
[of IPRA].” In both cases, the district court ruled that Section 6-5A-1(D) did not	1
serve as a statutory exemption to IPRA. We agree and affirm both rulings.3
2
BACKGROUND	3
I. 	Libit I	4
{2} 	In late 2016 and early 2017, Plaintiff sent a number of IPRA requests to the	5
Foundation and the University. Plaintiff sought records and communications related	6
to a naming agreement between the University and WisePies Pizza, a restaurant	7
chain that obtained naming rights to a major sporting facility operated by the	8
University. The University denied Plaintiff’s requests, stating that it did not possess	9
the requested records. The University further stated that Plaintiff should contact the	10
Foundation directly, since the Foundation was a separate entity that may have been	11
in possession of the records. Plaintiff did so, and in response, the Foundation	12
provided a copy of a gift agreement and a press release, but refused to release any	13
electronic communications or financial records related to the WisePies naming	14
agreement. The Foundation justified its refusal by stating that it was a nonprofit	15
entity not subject to IPRA’s disclosure requirements.	16
{3} 	Plaintiff filed a complaint in district court, alleging that the Foundation and	17
the University had violated IPRA by failing to provide records responsive to his	18
3 We express our appreciation to amici for filing briefs in this matter. Their
contributions have been of help to this Court.

3
request. After completing discovery, Plaintiff and Defendants filed competing	1
motions for summary judgment. Plaintiff argued that the Foundation was not a	2
private entity exempt from IPRA’s disclosure requirements because the Foundation	3
functioned as an extension of the University under the nine-factor test announced in	4
State ex rel. Toomey v. City of Truth or Consequences, 2012-NMCA-104, ¶ 13, 287	5
P.3d 364. Defendants argued Toomey was inapplicable because Section 6-5A-1(D)	6
served as a statutory exemption to IPRA, thus making the records exempt from	7
disclosure under any circumstance. The district court granted Plaintiff’s motion,	8
ruling that the Foundation was subject to IPRA under Toomey and that Section	9
6-5A-1(D) did not serve as a statutory exemption for the Foundation. The court	10
ordered the Foundation to produce the records. The court simultaneously denied	11
Plaintiff’s 	motion 	against 	the 	University, 	ruling 	that 	disputed 	factual 	issues	12
precluded summary judgment.	13
{4} 	The Foundation produced the records in accordance with the order, and	14
Plaintiff and the University settled their remaining claims.4 The Foundation appeals	15
4 Although the Foundation’s compliance with the order and the University’s
settlement arguably render Libit I moot, we nonetheless review Libit I on the merits.
While we generally do not decide moot questions, we “may do so as a matter of
discretion when an issue is of substantial public interest or capable of repetition yet
evading review.” White v. Farris, 2021-NMCA-014, ¶ 34, 485 P.3d 791 (internal
quotation marks and citation omitted). Given that Libit II arose within two years of
Libit I, we conclude that both exceptions are applicable in this case.

4
the district court’s ruling that Section 6-5A-1(D) does not serve as a statutory	1
exemption to IPRA.5
2
II. 	Libit II	3
{5} 	In 2018, Plaintiff filed another series of IPRA requests seeking records,	4
including donor lists, from the Lobo Club, the Foundation, and the University. The	5
Lobo Club denied Plaintiff’s requests, stating that the records were exempt from	6
disclosure under Section 6-5A-1(D), and further, that the records were not public	7
records under IPRA. The Foundation denied Plaintiff’s requests for the same	8
reasons, and the University stated that it did not possess the requested records.	9
{6} 	Plaintiff 	filed 	suit 	against 	all 	three 	Defendants 	for 	IPRA 	violations.	10
Defendants filed separate motions to dismiss but advanced a common argument:	11
Section 6-5A-1(D) exempted the records sought by Plaintiff from disclosure under	12
IPRA. After a hearing, the district court ruled that Section 6-5A-1(D) did not	13
function as an exemption to IPRA and denied the motions. In its order, however, the	14
court certified the case for interlocutory appeal on the issue of whether Section 6-	15
5A-1(D) serves as an IPRA exemption. Defendants filed a consolidated application	16
for interlocutory appeal, which we accepted and now consider.	17
5 The Foundation has not challenged any other aspect of the district court’s
ruling in Libit I on appeal, including the court’s Toomey ruling.

5
DISCUSSION6
1
{7} 	“IPRA provides that, with only very limited exceptions, ‘every person has a	2
right to inspect public records of this state.’” Cox v. N.M. Dep’t of Pub. Safety, 2010-	3
NMCA-096, ¶ 5, 148 N.M. 934, 242 P.3d 501 (alteration omitted) (quoting Section	4
14-2-1(A)). This right applies equally to public records held or created by a private	5
entity on behalf of a governmental entity, see Toomey, 2012-NMCA-104, ¶ 10, and	6
“is limited only by the Legislature’s enumeration of certain categories of records that	7
are excepted from inspection.” Dunn v. Brandt, 2019-NMCA-061, ¶ 6, 450 P.3d 398	8
(internal 	quotation 	marks 	and 	citation 	omitted). 	Among 	IPRA’s 	enumerated	9
exceptions is a “catch-all” category that exempts records “as otherwise provided by	10
law.” Section 14-2-1(H). This category has been construed to include bars to	11
disclosure found outside of IPRA. See Republican Party of N.M. v. N.M. Tax’n &	12
Revenue Dep’t, 2012-NMSC-026, ¶ 13, 283 P.3d 853 (stating that the “‘catch-all’	13
exception includes statutory and regulatory bars to disclosure,” constitutionally	14
mandated privileges, and privileges established by the rules of evidence). Putting	15
6 Defendants raise a conclusory argument that the district court lacked subject
matter jurisdiction in Libit I because Plaintiff did not name a Foundation records
custodian in the lawsuit. However, none of the authorities cited by the Foundation
support the contention that a district court lacks subject matter jurisdiction over an
IPRA lawsuit if a records custodian is not named. Further, we find it inconsistent
that the Foundation argues that it is a private entity exempt from IPRA while also
asserting that Plaintiff must have sued the Foundation’s records custodian—a
position that IPRA only requires public bodies to designate. See § 14-2-7.

6
aside questions that are not at issue in this appeal—i.e., whether the documents	1
sought by Plaintiff are “public records” and whether the Foundation and the Lobo	2
Club’s records are subject to IPRA’s disclosure requirements under Toomey—the	3
narrow question presented is whether Section 6-5A-1(D) is a statutory bar to	4
disclosure. This is a matter of statutory interpretation that we review de novo. Cox,	5
2010-NMCA-096, ¶ 4.	6
{8} 	Defendants argue that by its plain language, Section 6-5A-1(D) exempts all	7
records created or maintained the Foundation and the Lobo Club other than their	8
annual audits. Defendants further contend that persuasive authority and public policy	9
justify an interpretation of Section 6-5A-1(D) to exempt records of the Foundation	10
and the Lobo Club from IPRA’s disclosure requirements. We are unpersuaded by	11
Defendants’ arguments and hold as a matter of first impression that the Section 6-	12
5A-1(D) is not a statutory exemption to IPRA’s disclosure requirements under	13
Section 14-2-1(H).	14
I. 	Section 6-5A-1(D) Does Not Function as a Statutory IPRA Exemption	15
{9} 	We turn first to the language of the statute as the primary indicator of	16
legislative intent. See Toomey, 2012-NMCA-104, ¶ 9. Section 6-5A-1(D) states that	17
“[n]othing in this section . . . makes [an organization’s] records, other than the	18
annual audit required under this section, public records within the purview of Section	19
14-2-1.” Defendants argue that the statutory language places “all Foundation and	20

7
Lobo Club records, other than their annual audits, beyond the purview of IPRA.” In	1
support of this view, they offer only a common dictionary definition for the term	2
“purview” before restating their conclusion that “the intent and effect of the language	3
used in Section 6-5A-1(D) could not be more clear: it places Foundation and Lobo	4
Club records, other than the annual audit, beyond the limit, purpose, scope, range of	5
authority, or concern of IPRA.”7
6
{10} 	The problem with Defendants’ construction, and the reason we cannot accept	7
it, is that it rests on a rephrasing of the statutory language that materially changes	8
both the wording and the meaning of the statute. Defendants read the statutory	9
language to say, in essence, an organization’s records are not within the purview of	10
IPRA. But this is not the language chosen by the Legislature, and Defendants have	11
not argued that it is necessary to depart from the plain language of the statute to	12
understand its meaning or to resolve an ambiguity. See Bd. of Cnty. Comm’rs of	13
7 Defendants additionally rely on a 2007 letter ruling authored by the New
Mexico Attorney General in support of the notion that Section 6-5A-1(D) serves as
a blanket IPRA exemption. The letter appears to advance the same reasoning as
Defendants do in this case, and that we now reject. Further, we note that the Attorney
General filed an amicus curiae brief in this appeal stating that the 2007 letter does
not accurately reflect the current position of the Office of the Attorney General. The
Attorney General points out that the 2007 letter was issued before this Court’s
decision in Toomey, which clarified that public records for purposes of IPRA include
those held by private entities “on behalf of” public bodies. 2012-NMCA-104, ¶ 10.
Accordingly, we do not find the 2007 letter persuasive here. See Bd. of Cnty
Comm’rs, Luna Cnty. v. Ogden, 1994-NMCA-010, ¶ 15, 117 N.M. 181, 870 P.2d
143 (recognizing that “statements and opinions of the New Mexico Attorney General
are not binding law,” but finding an Attorney General compliance guide persuasive).

8
Cnty. of Rio Arriba v. Bd. of Cnty. Comm’rs of Cnty. of Santa Fe, 2020-NMCA-017,	1
¶¶ 9, 16, 460 P.3d 36 (stating that it is the responsibility of the judiciary to apply the	2
statute as written and declining to depart from the plain language of a statute unless	3
it is necessary to resolve an ambiguity or uncertainty).	4
{11} 	We find the language of Section 6-5A-1(D) to be clear and unambiguous:	5
Section 6-5A-1 does not cause the records of organizations like the Foundation or	6
Lobo Club to be “public records,” except for their annual audit. Cf. § 6-5A-	7
1(B)(4)(a) (stating that the organization’s annual audit, “exclusive of any lists of	8
donors or donations, shall be a public record” (emphasis added)). Put another way,	9
a plain reading of the statutory language is that records of an organization are not	10
affirmatively designated as public records under IPRA. Defendants question why	11
the Legislature would have any reason to enact a statute saying that an organization’s	12
records “might or might not” be subject to public records laws. We think the answer	13
is readily apparent: the Legislature expressly designated organizations’ annual audits	14
as public records in Section 6-5A-1(B)(4)(a), but also made clear that it was not	15
doing the same for other records. Thus, while an organization’s records might be	16
public records subject to inspection, it is not because Section 6-5A-1 makes them so.	17
{12} 	Defendants also contend that the statute must be construed as an IPRA	18
exemption because it does not use express language stating that an organization’s	19
records might be subject to IPRA. However, we are aware of no authority, and	20

9
Defendants have cited none, suggesting that an exemption exists unless the	1
Legislature affirmatively states that records are subject to disclosure under IPRA.	2
Such an approach would turn the notion of a statutory IPRA exemption on its head	3
and runs counter to the approach taken by this Court in prior cases, which have	4
looked at whether the statute bars disclosure. E.g., Bd. of Comm’rs of Doña Ana	5
Cnty. v. Las Cruces Sun-News, 2003-NMCA-102, ¶ 21, 134 N.M. 283, 76 P.3d 36	6
(holding that the statutory exemption in NMSA 1978, Section 15-7-9 (1981,	7
amended 2020), which makes certain records created or maintained by the risk	8
management division confidential, does not suggest the confidentiality provision	9
relates to records held by any other insurer), overruled on other grounds by	10
Republican Party of N.M., 2012-NMSC-026, ¶ 16.	11
{13} 	Relatedly, we note that Section 6-5A-1 does not specifically exempt any	12
records from disclosure. When the Legislature has intended to exempt records from	13
public inspection in other enactments, it has done so expressly by stating either that	14
records are not public records or that records are not subject to disclosure under	15
IPRA. See, e.g., NMSA 1978, § 51-1-56 (1991) (providing that “[death reports] shall	16
be confidential and shall not be considered as public records under [IPRA]”	17
(emphasis 	added)); 	NMSA 	1978, 	§ 	30-51-3(G) 	(1998) 	(stating 	that 	money	18
laundering reports obtained by the department of public safety or other agency are	19

10
“not subject to disclosure pursuant to [IPRA]” (emphasis added)). 8 The direct	1
language in these statutes stands in stark contrast to the language used in Section 6-	2
5A-1(D). Given the Legislature’s near-uniform treatment of IPRA exemptions in a	3
multitude of other enactments, both before and after Section 6-5A-1 was adopted	4
and last amended, the lack of express language in Section 6-5A-1(D) is a compelling	5
indication that the Legislature did not intend to categorically exempt the records of	6
organizations governed by Section 6-5A-1 from IPRA. See State v. Greenwood,	7
2012-NMCA-017, ¶ 38, 271 P.3d 753 (“The Legislature knows how to include	8
8 See also 	NMSA 1978, § 14-6-1(A) (1977) (stating that “[a]ll health
information that relates to and identifies specific individuals as patients is strictly
confidential and shall not be a matter of public record or accessible to the public,”
even though the information is held by a government agency (emphasis added));
NMSA 1978, § 24-14A-8(C) (2015) (stating that “individual forms, electronic
information or other forms of data collected by and furnished for the health
information system shall not be public records subject to inspection pursuant to
[IPRA]” (emphasis added)); NMSA 1978, § 61-4-10(C) (2006) (complaints against
chiropractors “are not public records 	for the purposes of [IPRA]” (emphasis
added)); 	NMSA 1978, § 	6-32-7(B) (2021) 	(stating 	that 	small 	business 	loan
information obtained by the New Mexico Finance Authority “is confidential and not
subject to inspection pursuant to [IPRA]” (emphasis added)); NMSA 1978, § 15-7-
9(A) (2020) (stating that certain records created by the Risk Management Division
“are confidential and shall not be subject to any right of inspection by any person
except the New Mexico legislative council or a state employee within the scope of
the New Mexico legislative council’s or state employee’s official duties” (emphasis
added)); NMSA 1978, § 27-2E-1(B) (2003) (stating that a person who manufactures
a prescription drug that is sold in New Mexico shall file certain information with the
human services department but that such information is confidential and “shall not
be subject to public inspection pursuant to [IPRA]” (emphasis added)). The New
Mexico Foundation for Open Government filed an amicus brief cataloguing a
nonexhaustive list of twenty-four other instances where the Legislature used similar
language to expressly exclude records from IPRA.

11
language in a statute if it so desires.” (alteration, internal quotation marks, and	1
citation omitted)).9
2
{14} 	As a final matter, Defendants contend that public policy concerns support an	3
interpretation of Section 6-5A-1(D) that exempts the Foundation and the Lobo Club	4
from IPRA. Defendants point to a variety of sources in support of the idea that donor	5
information is private and should be exempt from disclosure. However, after our	6
Supreme Court’s decision in Republican Party of New Mexico, courts no longer	7
apply the “rule of reason” as a basis to determine whether records should be withheld	8
from the requester for reasons of public policy. 2012-NMSC-026, ¶¶ 14-16. Instead,	9
9 Defendants contend the district court’s interpretation of Section 6-5A-1 runs
contrary to the canon of statutory construction that statutes in pari materia must be
read together. Given the plain meaning of Section 6-5A-1, we question the utility of
this canon to our analysis. See United Rentals Nw., Inc. v. Yearout Mech., Inc., 2010-
NMSC-030, ¶ 22, 148 N.M. 426, 237 P.3d 728 (providing that “where a plain
language analysis does not provide a clear interpretation, we can look to other
statutes in pari materia in order to determine legislative intent” (emphasis added)
(internal quotation marks and citation omitted)). Regardless, we are not persuaded
by Defendants’ argument here. Defendants argue that the New Mexico Charitable
Solicitations Act, NMSA 1978, §§ 57-22-1 to -11 (1983, as amended through 1999),
contains numerous provisions that “manifest the . . . Legislature’s intent to regulate
charitable organizations and professional fundraisers while protecting their donor
information from public disclosure.” While we see support for Defendants’ former
point, we do not see support for the latter—i.e., that the Charitable Solicitations Act
evinces a statutory IPRA exemption for donor records under Section 6-5A-1(D).
Further, it is not clear how the two statutory schemes interact, if at all, other than in
certain registration and reporting requirements. See § 57-22-4(B)(1) (exempting
organizations 	defined 	in 	Section 	6-5A-1 	from the 	registration 	and 	reporting
requirements of the Charitable Solicitations Act). Accordingly, this argument does
not persuade us that Section 6-5A-1(D) was intended to be an IPRA exemption.

12
courts “restrict their analysis to whether disclosure under IPRA may be withheld	1
because of a specific exception contained within IPRA, or statutory or regulatory	2
exceptions.” Id. ¶ 16.	3
{15} 	Analytic restrictions notwithstanding, we acknowledge, as did the district	4
court, that this case implicates strong and competing policy interests, including “a	5
strong public policy in favor of encouraging charitable giving and protecting private	6
information related to charitable giving.” We are not unmindful of Defendants’	7
concerns regarding the release of private donor information in the event the district	8
court on remand determines that such records are public records. Nevertheless, it is	9
“the responsibility of the judiciary to apply the statute as written and not to second-	10
guess the [L]egislature’s selection from among competing policies or adoption of	11
one of perhaps several ways of effectuating a particular legislative objective.” State	12
ex rel. Helman v. Gallegos, 1994-NMSC-023, ¶ 22, 117 N.M. 346, 871 P.2d 1352;	13
see also M.D.R. v. State ex rel. Hum. Servs. Dep’t, 1992-NMCA-082, ¶ 13, 114 N.M.	14
187, 836 P.2d 106 (“[I]t is not the function of the court of appeals to legislate.	15
Correction of whatever inequity exists in [a] situation is best left to the legislature.”	16
(citation omitted)).	17
{16} 	For all of these reasons, we hold that Section 6-5A-1(D) is not a statutory bar	18
to the disclosure of public records held by Defendants.	19

13
II. 	The District Court Did Not Err in Libit I or Libit II	1
{17} 	In light of our holding, we affirm the district courts’ rulings in both Libit I and	2
Libit II. Because Defendants have not challenged any other aspect of the district	3
court’s ruling in Libit I, we simply affirm.	4
{18} 	In Libit II, we affirm the district court’s denial of Defendants’ motion to	5
dismiss and remand for further proceedings. Nothing in this opinion should be	6
construed as a determination of whether Defendants are subject to IPRA under the	7
analysis required by Toomey, whether the records sought by Plaintiff—including the	8
names of specific donors—are public records within IPRA’s definition, see § 14-2-	9
6(G), or whether Defendants’ first amendment affirmative defenses have merit.	10
CONCLUSION	11
{19} 	We affirm the district court’s ruling in Libit I. We also affirm the district	12
court’s ruling in Libit II, and remand for further proceedings consistent with this	13
opinion.	14
{20} 	IT IS SO ORDERED.	15
_________________________________	16
MEGAN P. DUFFY, Judge	17

1
WE CONCUR:
2
SULAR
3
JENNIFER L. ATTREP, Judge
4 5
Kristina Bogardus
KRISTINA BOGARDUS, Judge
14