January 31, 2020- Aubrey L. Dunn v. New Mexico Department of Game and Fish, No. A-1-CA-37577

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Court of Appeals of New Mexico
Opinion Number: Filed 1/31/2020 12:19 PM

Filing Date: January 31, 2020 Lh z ,
Mark Reynolds

No. A-1-CA-37577

AUBREY L. DUNN,
Plaintiff-Appellee,

Vv.

NEW MEXICO DEPARTMENT
OF GAME AND FISH,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF TORRANCE COUNTY
Matthew G. Reynolds, District Judge

Law Office of Marshall J. Ray, LLC
Marshall J. Ray
Albuquerque, NM

for Appellee

Miller Stratvert P.A.
Luke Salganek
Elizabeth Reitzel
Santa Fe, NM

for Appellant

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OPINION
VANZI, Judge.
{1} |The New Mexico Department of Game and Fish (NMDGF) appeals the district
court’s order of summary judgment compelling NMDGF to produce the names and
email addresses of individuals who applied for hunting licenses in 2015 and 2016,
pursuant to Plaintiff's request under the Inspection of Public Records Act (IPRA),
NMSA 1978, §§ 14-2-1 to -12 (1947, as amended through 2019).! NMDGEF contends
the requested email addresses are not “public records” because they do not “relate to
public business,” as defined in IPRA, § 14-2-6(G); and therefore they need not fall
under any IPRA disclosure exception to justify denial of Plaintiff's request for
inspection. We disagree and affirm the district court’s order granting summary
judgment in favor of Plaintiff.
BACKGROUND
23 In January 2017 Plaintiff submitted an IPRA request to NMDGF, seeking the
names and email addresses given by all applicants for hunting licenses in 2015 and
2016, which NMDGF determined amounted to over 300,000 entries. NMDGF

concluded that Plaintiff's request sought personal identifier information that did not

'The version of IPRA in effect at the time Plaintiff made his IPRA request in
2017 was last amended in 2013. Because our analysis remains the same under the
previous and the current versions of IPRA, this opinion refers to the 2017 version of
the statute, without special designation as such.

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constitute a public record subject to disclosure and agreed to produce only the
applicants’ names. Plaintiff filed suit in district court seeking an order compelling
NMDGF to produce the applicants’ email addresses. The district court subsequently
granted Plaintiff's motion for summary judgment as a matter of law. The court
concluded that Plaintiff's request did not fall under any disclosure exception
recognized by IPRA. In addition, it held that NMVDGF wrongfully withheld the email
addresses pursuant to a policy decision to protect the applicants from potential
harassment by anti-hunting groups, which runs contrary to IPRA and Republican
Party of New Mexico v. New Mexico Taxation & Revenue Department, 2012-NMSC-
026, { 16, 283 P.3d 853.

DISCUSSION

33 On appeal, NUDGF does not oppose summary judgment on the basis of a
factual dispute. The parties dispute only whether the email addresses of applicants for

hunting licenses are “public records” subject to disclosure under IPRA.’ This presents

The record before us does not contain an application for a hunting license or a
description of the application or the information NMDGF requires applicants to
provide as part of its licensing system. Thus, the alleged “public record” at issue is
not clearly defined. NNUDGF, however, does not dispute that it has kept a record of
individuals who applied for hunting licenses in 2015 and 2016, including their email
addresses. In the absence of an identified factual dispute, we presume that NUDGF
maintains a record of the names and email addresses of individuals who applied for
hunting licenses in 2015 and 2016 as a part of its licensing system.

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a question of law that requires us to construe the statute and apply the relevant case
law to undisputed facts. Our review is de novo. See N.M. Found. for Open Gov't v.
Corizon Health (NMFOG), 2019-NMCA-__, 9 15, __ P.3d ____ (No. A-1-CA-
35951, Sept. 13, 2019) (explaining that whether documents at issue are public records
presents an issue of statutory construction, a legal question we review de novo). “In
discerning the Legislature’s intent, we are aided by classic canons of statutory
construction, and we look first to the plain language of the statute, giving the words
their ordinary meaning, unless the Legislature indicates a different one was intended.”
/d. (internal quotation marks and citation omitted). “In so doing, we take care to avoid
adopting a construction that would render the statute’s application absurd or
unreasonable or lead to injustice or contradiction.” /d. (internal quotation marks and
citation omitted). “IPRA must be construed in light of its purpose and statutory
provisions under IPRA should be interpreted to mean what the Legislature intended
it to mean, and to accomplish the ends sought to be accomplished.” /d. (internal
quotation marks and citation omitted).

{4 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. In light of this purpose, “[e]ach inquiry starts

with the presumption that public policy favors the right of inspection.” Cox v. N.M.

AarAAN A

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Dep’t of Pub. Safety, 2010-NMCA-096, J 17, 148 N.M. 934, 242 P.3d 501 (internal
quotation marks and citation omitted).
{6} 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(G) (emphasis added). NMDGF contends the email addresses of
applicants for hunting licenses are not public records because they do not “relate to
public business” as defined in Section 14-2-6(G). Noting the absence of a definition
for “relate to public business” in IPRA’s provisions, NMDGF relies on three main
authorities for its interpretation: (1) the stated purpose of IPRA; (2) the New Mexico
Inspection of Public Records Act Compliance Guide (IPRA Guide), at 26-27 (8th ed.
2015) and (3) this Court’s opinion in Cox, 2010-NMCA-096, {ff 30-31.
{7} NMDGF contends that the email addresses of hunters in New Mexico are not
public records subject to IPRA because “[t]heir personal contact information does not
provide information pertaining to either the affairs of government or the official acts
of public officers and employees.” In other words, the email addresses constitute
personal contact information taken for administrative convenience that reveal nothing

about the issuance of hunting licenses or other of NMDGF official acts, operations,

or activities, and their disclosure implicates the privacy of New Mexico citizens.

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Plaintiff responds that NMDGF requires applicants to provide an email address as
part of the administration of the program, and that those email addresses are gathered,
maintained, and used by NMDGF to carry out its official licensing acts. Moreover, he
argues, the email addresses relate to the public business of NMDGF because
“{hjunting licenses are granted to permit members of the public to use public
resources—resources that happen to be scarce, tightly regulated, and often
controversial” noting, for example, that the distribution of game tags leads to
questions every season raising issues of fairness and transparency. In Plaintiff's view,
NMDGEF asks this Court to adopt an overly restrictive definition of public records that
would limit disclosure under IPRA to information that impacts a substantive decision
by a public body and afford those public bodies wide discretion to deny IPRA
requests.

{8} In addressing NMDGF’s argument that the purpose of IPRA is not furthered
by construing “public records” to require disclosure of the applicants’ email
addresses, we begin by acknowledging that our cases have consistently stated,
“Tulnder IPRA, public records are broadly defined.” NMFOG, 2019-NMCA-___, 4,17
(internal quotation marks and citation omitted). We have held: “IPRA’s broad
language defining public records is clear that, absent an express exemption from
disclosure, public agencies must produce all records, even those held by or created by

a private entity ‘on behalf of the public agency.” State ex rel. Toomey v. City of Truth

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or Consequences, 2012-NMCA-104, J 10, 287 P.3d 364 (citing the “public records”
definition of Section 14-2-6(G)); see also Edenburn v. N.M. Dep't of Health, 2013-
NMCA-045, § 17, 299 P.3d 424 (“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.”).

{9} | The relevant provision of IPRA defines “public records” as all materials “used,
created, received, maintained or held on or behalf of any public body and relate to
public business[.]” Section 14-2-6(G). We emphasize that our case law requires us to
construe the plain language in IPRA provisions and give the words their ordinary
meaning to accomplish the legislative goal of public access to “public records,” which
we consistently view as broadly defined. See NMFOG, 2019-NMCA-_, {/ 15, 17;
Edenburn, 2013-NMCA-045, J 17; Cox, 2010-NMCA-096, § 17. Within this
analytical framework, we observe that the plain language used to define “public
records” in the phrase “relate to public business” is itself inexact and unamenable to
a narrow construction. Giving the terms their ordinary meaning, “relate to” are

expansive words that embrace a wide range of relevance and involvement.’ More

3See Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/relate%20to (last visited on Jan. 9, 2020) (defining “relate to”
in relevant part as “to connect (something) with (something else)[,]” “to be connected
with (someone or something): to be about (someone or something)”.

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importantly, the terms “public business” are similarly broad words that can embrace
a wide range of affairs and actions by or on behalf of public bodies.* See Pacheco v.
Hudson, 2018-NMSC-022, ] 27, 415 P.3d 505 (“IPRA textually makes clear that it is
aimed at ‘the affairs of government’ and the ‘official’ acts of public officers and
employees.” (quoting Section 14-2-5, stating the purpose of IPRA))). If the
Legislature intended to limit the materials subject to disclosure as NMDGF suggests,
then the Legislature could have qualified “public business” in a manner that used
language requiring the materials to relate to a public body’s substantive decisions,
rather than material that is kept for purely administrative purposes. See NMFOG,
2019-NMCA-___, § 15 (stating that in determining legislative intent behind IPRA
provisions, “we look first to the plain language of the statute, giving the words their
ordinary meaning, unless the Legislature indicates a different one was intended”
(internal quotation marks and citation omitted)). Such a narrow interpretation is belied
by the expansive language, “relate to public business,” the otherwise broadly worded

definition of “public records,” and the absence of any limiting language. See

‘See Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/public (last visited on Jan. 9, 2020) (defining “public” in
relevant part as “of or relating to a government” and “of or relating to people in
general”); Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/business (last visited on Jan. 9, 2020) (defining “business” in
relevant part as “role, function,” “an immediate task or objective[,]” “a particular field
of endeavor[,]” and “affair, matter’).

39 66

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Edenburn, 2013-NMCA-045, ] 17 (holding that the Department of Health’s position
that draft documents are not public records within IPRA’s reach “is belied by the
broad language of the statute” and the lack of an exclusion for draft documents in the
definition); cf § 14-2-8(C) (“No person requesting records shall be required to state
the reason for inspecting the records.”).

{10} Giving the words their ordinary meaning, we conclude that IPRA’s definition
of “relat[ing] to public business” means simply that the requested records are
connected to governmental affairs or official actions by or on behalf of public bodies.
See, e.g., NUFOG, 2019-NMCA-___, § 18 (relying on the plain language of Section
14-2-6(G) to determine that the settlement agreements at issue are public records held
in relation to a public business because they “were plainly created and maintained in
relation to a public business, here, the medical care and personal safety of the inmates
held by the New Mexico Correction Department.” The Legislature has done nothing
to narrow the ordinary meaning of these terms, and the ordinary meaning comports
with the goal of IPRA “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; see NMFOG, 2019-NMCA-__, 15
(stating that we look to the plain language in IPRA, give its words “their ordinary

meaning, unless the Legislature indicates a different one was intended[,]” and

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construe IPRA provisions to achieve its legislative goal (internal quotation marks and
citation omitted)).

411}. We further note that public agencies, like NMDGF, by their very nature, engage
in the administration of governmental affairs, programs, and responsibilities. And the
Legislature is clearly aware that some public records generated, received, or kept in
connection with those affairs may contain personal identifier information. Indeed, the
Legislature has made provisions for the protection of such information. See § 14-2-
1(B) (permitting the redaction of “protected personal identifier information”
contained in public records and explaining that the presence of such “information on
a record does not exempt the record from inspection”); § 14-2-6(E) (defining
“protected personal identifier information”). The Legislature did not, however,
include email addresses or generally reference personal information kept for
administrative purposes among the precisely defined “protected personal identifier
information.” See § 14-2-6(E). Thus, we are not persuaded that the Legislature
intended to endow public bodies with discretion to identify and withhold records that
are generated or kept for administrative purposes, do not impact substantive decisions,
and that may otherwise contain personal information.

{12} Applying our broad construction of records that “relate to public business,” we
turn to the email addresses at issue. The statute governing licenses for game and fish

requires NMDGF to create and provide blank and electronic applications for game

and fish licenses, and it requires NMDGF to keep a record of all licenses issued and
money received therefrom. NMSA 1978, § 17-3-5(A), (E) (2011); NMSA 1978, § 17-
3-13 (2015). Undoubtedly, creating and collecting applications for game and fish
licensing is done in connection with the governmental affairs of NMDGF. In regard
to this process there does not appear to be a dispute. NMDGF also does not dispute
that email addresses are collected from applicants to carry out its licensing program.
Our case law provides that, as a general matter, information collected from the public
by a governmental agency in connection with the administration of its public duties

falls within the meaning of “public records.”> Accordingly, we conclude the email

>See ACLU of N.M. v. Duran, 2016-NMCA-063, ff 5, 31, 40, 392 P.3d 181
(concluding that the defendant was wrongfully non-responsive when it withheld
emails related to ACLU’s IPRA request for records involving information gathered
by the Secretary of State’s Office in the course of its internal investigation of foreign
nationals registering to vote in New Mexico and actually voting in New Mexico); cf
Republican Pty. of N.M. v. N.M. Taxation & Revenue Dep’t, 2010-NMCA-080, { 16,
148 N.M. 877, 242 P.3d 444 (involving no dispute that the New Mexico Motor
Vehicle Division collected and kept public records containing drivers’ personal
information related to issuing drivers’ licenses that would have been subject to
disclosure provided there was no applicable exception; namely, the federal and state
privacy acts that protect the private information related to drivers and list a number of
exceptions that may apply to the redacted personal information), rev’d on other
grounds, 2012-NMSC-026, §f 4, 11, 13, 283 P.3d 853 (indicating that the federal and
state privacy acts constitute statutory bars to disclosure under the “catch-all” IPRA
exception, but refusing to address the withholding of information under the federal
and state privacy acts under the mootness doctrine). See generally San Juan Agric.
Water Users Ass’n v. KNME-TV, 2011-NMSC-011, J 16, 150 N.M. 64, 257 P.3d 884
(“Writings coming into the hands of public officers in connection with their official

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addresses NMDGF collected in connection with its licensing system constitute
“public records” that are subject to disclosure under IPRA in the absence of an
applicable exception. See Republican Party of N.M., 2012-NMSC-026, J 16
(“[C]ourts 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 [our Supreme] Court or grounded in
the constitution.”).

413} NMODGEF does not contend that there is an applicable exception contemplated
by our Supreme Court’s opinion in Republican Party of N.M., 2012-NMSC-026, { 16,
and we, too, cannot identify one. To the extent that NUDGF relies on the PRA Guide,
at 26-27, and on this Court’s language in Cox, 2010-NMCA-096, ff 30-31, these are
not among the exceptions listed or recognized by our Supreme Court in Republican
Party of N.M., 2012-NMSC-026, J 16. The Attorney General’s IPRA Guide is not
binding on courts. See Edenburn, 2013-NMCA-045, 921. Further, NMDGF’s
reliance on this Court’s language in Cox is misplaced. In Cox, we determined that the
citizen complaints against a police officer were public records subject to disclosure

and did not fall under any exception, and we reversed the order of summary judgment

functions should generally be accessible to members of the public to determine
whether those who have been entrusted with the affairs of government are honestly,
faithfully and competently performing their function.” (omission, internal quotation
marks, and citation omitted)).

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entered in favor of the Department of Public Safety (DPS). 2010-NMCA-096, {ff 11,
19, 29, 32. In requiring DPS to disclose the citizen complaints, we encouraged DPS
to consider redacting personal information about the citizen complainant that was not
relevant to the IPRA request at issue. /d. J§ 30-31. We were not making a declaration
of law, construing the meaning of “public records” that “relate to public business,”
identifying an exception, or further considering the merits of an IPRA request. In
contrast, the IPRA request at issue in this case is for email addresses, and we are
tasked with determining whether that personal information itself falls under the
definition of “public records.” The IPRA request for the email addresses themselves
was rightfully granted in this case, and Cox is not relevant to our analysis.

(144. To the extent NMDGF relies on out-of-state case law for support of its
interpretation of our IPRA provision, NMDGF does not demonstrate that the other
states have similar statutes or are otherwise bound by similar law in construing the
meaning of “public records” and its narrow exceptions. Thus, we find no guidance in
the cases upon which NMDGF relies from other jurisdictions. See In re N.M. Indirect
Purchasers Microsoft Corp., 2007-NMCA-007, § 11, 140 N.M. 879, 149 P.3d 976
(stating that where New Mexico law is not instructive, we may find guidance in the
decisions of other jurisdictions where those decisions are based on similar statutes;

and even then it is only persuasive, not binding).

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{15} Lastly, we agree with Plaintiff that accepting NMDGF’s position—narrowly
defining “public records” to exclude personal information kept for administrative
purposes—is tantamount to creating an additional policy-based exception not
identified in IPRA or in other statutes and regulations or in privileges adopted by our
Supreme Court, nor mandated by our constitution. See Republican Party of N.M.,
2012-NMSC-026, § 16 (listing the exclusive sources for exceptions to IPRA’s
mandated disclosure of public records). The creation of such a policy-based exception
is not permitted by Republican Party of N.M. See id. (overruling cases that apply the
“rule of reason” to create public policy exceptions not specifically identified in IPRA
because the Legislature has since enumerated specific exceptions to disclosure).
CONCLUSION

{16} Based on the foregoing, we affirm the district court’s order of summary

judgment in favor of Plaintiff.

17} IT ISSO ORDERED. ; _
: >
LINDAM. VANZI, Judge
WE CONCUR:
, 4 Vt 1
JULIE J. VARGAS Judge

i | ao YDoalna

JACQUELINE R. MEDINA, Judge

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