December 11, 2012 – Laurel C. Edenburn v. New Mexico Department of Health and Deborah Busemeyer, Appointed Custodian of Records in the Department of Health, No. 31,285

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OCR transcription for search; preserved printed pages are authoritative

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: _ December 11, 2012

NO. 31,285
LAUREL C. EDENBURN,
Plaintiff-A ppellant,
V.
NEW MEXICO DEPARTMENT OF HEALTH
and DEBORAH BUSEMEYER, Appointed
Custodian of Records in the Department of Health,
Defendants-A ppellees.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Barbara J. Vigil, District Judge

Becht Law Finm
Paul F. Becht

Albuquerque, NM

for Appellant

Long, Pound & Komer, P.A.
Mark E. Komer

Santa Fe, NM

for Appellees

Gary K. King, Attorney General
Mark Reynolds
Scott Fuqua
Santa Fe, NM
for Amicus Curiae New Mexico Attorney General
Rodey, Dickason, Sloan, Akin & Robb, P.A.
Charles K. Purcell
Albuquerque, NM
for Amicus Curiae New Mexico Foundation for Open Government

1For ease of reference we will refer to both Appellees throughout the Opinion
as “DOH.”
OPINION
BUSTAMANTE, Judge.
{1} 	Appellant’s motion for rehearing is granted. The opinion filed in this case on
July 31, 2012, is withdrawn and this Opinion is substituted in its place. In addition
to briefs by the parties on the motion for rehearing, the Court received briefs from
amici New Mexico Foundation for Open Government (NMFOG) and the New Mexico
Attorney General.
{2} 	Appellant, Laurel C. Edenburn, sought to obtain records from Appellee, the
New Mexico Department of Health (DOH).1 After receiving some materials but being
denied others, Appellant filed a petition for a writ of mandamus to force DOH to
disclose the withheld material. DOH moved for and was granted summary judgment.
We reverse.
I. 	BACKGROUND
{3} 	Edenburn’s first request letter was sent on August 20, 2007. It requested access
to seven categories of information related to the Title V Abstinence Education Block
Grant program managed by DOH. The letter referenced New Mexico’s Inspection of
Public Records Act (IPRA). 	See NMSA 1978, § 14-2-1 to -12 (1947, as amended

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through 2011). The letter was received on August 24, and DOH responded on that
day, stating that the request was received and a response would be provided “within
[fifteen] days in accordance with the [IPRA], unless we encounter difficulties in
retrieving the [material].” 	See § 14-2-11 (setting forth requirements for denials of
written requests). On September 10, seventeen days after receipt, DOH requested an
extension “on your [IPRA]” request to September 15. 	On September 14, DOH
notified Edenburn by email that the records would be available for inspection on
September 18. Edenburn inspected them at the DOH offices. DOH notified Edenburn
on September 21 that there “may be additional documents which may be responsive
to your Public Records Request,” and requested an extension to “provide careful
review with the expectation of providing [Edenburn] with any responsive documents
no later than the first week of October 2007.” 	On October 10, Edenburn notified
DOH that no additional documents had been received and she requested a number of
documents that were not included in the inspection. DOH provided an additional set
of documents to Edenburn on October 25.
{4} 	On November 2, Edenburn sent two letters to DOH referencing IPRA and
identifying documents still not received. One of these letters requested copies of an
email string and a draft letter, which are the subjects of the present enforcement
action. 	For the sake of clarity, we will refer to these as the “email string” and the

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“draft letter.” The request was received by DOH on November 7. DOH responded
fourteen days later, stating that these two items were protected by executive privilege
and would not be produced. 	Edenburn requested additional information about the
basis for executive privilege on November 28, including which officials were involved
in “sending or receiving” these items, whether the items were related to “law or
policymaking,” and, if so, the laws or policies to which they related, and whether the
items were “deliberative in nature.” On December 4, Edenburn sent another letter,
stating that “relative to handling my [November 2] request for public records, the
[DOH] has not complied with the terms of Section 14-2-11 of [IPRA].” See § 14-2-11
(stating that denial of access to public records must be made within fifteen days of
receipt of the request and include the names of the persons responsible for the denial
and a description of the records sought). DOH responded on January 4, 2008. This
letter stated that the email string was “deliberative and predeterminative in nature and
was written before any final determinations were made.” It also clarified that the draft
letter was not subject to executive privilege, but would not be produced because it was
a draft and “therefore [is] not subject to public records status.”
{5} 	Edenburn filed a complaint to enforce the provisions of IPRA and for writ of
mandamus or injunction on February 19, 2009. An amended complaint was filed on
June 4, 2009, to change the name of the nominal defendant and add a request for

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attorney’s fees and costs. The complaint refers to Edenburn’s letter of November 2,
2007, in which she requested access to inspect the DOH’s records, including those
previously withheld. The complaint alleges that “[DOH has] failed to comply with
Section 14-2-11(B) . . . in that [DOH] failed to set forth the names and titles or
positions of each person responsible for the denial . . . within fifteen (15) days after
the request was received.” In addition, the complaint alleges that “[DOH] should be
required to pay damages to [Edenburn] not to exceed $100[] per day for each day
[DOH] is not in compliance until a written denial is issued.” 	DOH moved for
summary judgment. DOH’s motion was granted by two separate orders. The district
court found that (1) the “rule of reason” applied to the draft letter and, under that rule,
“countervailing public policy protects drafts such as this document from disclosure”;
and (2) the email string was protected from disclosure by the deliberative process
privilege, a form of executive privilege. See generally Russell L. Weaver & James
T.R. Jones, The Deliberative Process Privilege, 54 Mo. L. Rev. 279 (1989). 	The
district court did not conduct an in camera review of either document. The district
court denied Edenburn’s claim for statutory damages. This appeal followed.

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II. 	DISCUSSION
A. 	The Republican Party Decision
{6} 	The primary question before the Court in this case is whether summary
judgment was properly granted. We determine that it was not. We base this decision
on the New Mexico Supreme Court’s ruling in Republican Party of New Mexico v.
New Mexico Taxation & Revenue Department (Republican Party II), 2012-NMSC-
026, 283 P.3d 853, which was decided after the present appeal was filed. 	In
Republican Party II, the issue was whether the deliberative process privilege applied
to prevent disclosure of documents in the context of a request for public records by
plaintiffs who were “research[ing] whether undocumented aliens were voting in
federal, state, and local elections in New Mexico.” Republican Party of N.M. v. N.M.
Taxation & Revenue Dep’t (Republican Party I), 2010-NMCA-080, ¶ 3, 148 N.M.
877, 242 P.3d 444 (internal quotation marks and citation omitted). The Republican
Party of New Mexico sought records relating to driver’s licenses issued to
“individuals who are not citizens or legal residents of the United States.” Id. (internal
quotation marks and citation omitted). This Court held that the privilege applied and
that the documents sought were properly withheld. Id. ¶ 36. On certiorari, the New
Mexico Supreme Court reversed. 	Republican Party II, 2012-NMSC-026, ¶ 38.
Several holdings in that case are dispositive of the matter before us because they

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eliminate the bases on which DOH relied to withhold the email string and draft letter,
and on which the district court’s ruling rested. 	We first summarize the relevant
holdings of Republican Party II, and then apply them to this case. Next, we address
whether Republican Party II’s holdings apply retroactively or prospectively. Finally,
we address the issue of damages.
{7} 	First, our Supreme Court negated the “rule of reason” analysis adopted in State
ex rel. Newsome v. Alarid, 90 N.M. 790, 797, 568 P.2d 1236, 1243 (1977) (internal
quotation marks and citation omitted), as a “non-statutory exception to disclosure.”
City of Farmington v. The Daily Times, 2009-NMCA-057, ¶¶ 8, 11, 146 N.M. 349,
210 P.3d 246, overruled by Republican Party II, 2012-NMSC-026. 	It stated that,
instead, “courts 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 this Court or grounded in the
constitution.” Republican Party II, 2012-NMSC-026, ¶ 16.
{8} 	Second, our Supreme Court held that “no deliberative process privilege exists
under New Mexico law.” 	Id. ¶ 42. The Court recognized that the term “executive
privilege” includes several different types of privilege, including the deliberative
process privilege and the executive communications privilege. Id. ¶ 18. Although the
communications privilege “is required by the Constitution of the State of New

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Mexico, specifically the separation of powers clause contained in Article III,” the
deliberative process privilege is rooted in the common law. 	Id. ¶ 35 (alteration,
internal quotation marks, and citation omitted); see N.M. Const. art. III, § 1. Because
New Mexico recognizes only those privileges “required by the Constitution, the Rules
of Evidence, or other rules of this Court,” such a common law privilege is not
recognized. 	Republican Party II, 2012-NMSC-026, ¶¶ 35, 38 (internal quotation
marks and citation omitted). 	The Court stated, “Allowing the executive to resist
disclosure on the basis of a common law deliberative process privilege not otherwise
recognized under our state’s constitution would frustrate IPRA’s guiding purpose of
promoting government transparency.” Id. ¶ 38.
{9} 	Third, the Court held that the communications privilege is itself limited. 	It
applies only to communications “connected to the chief executive’s decisionmaking,
as opposed to other executive branch decisionmaking,” and only to those “to or from
individuals in very close organizational and functional proximity to the Governor.”
Id. ¶¶ 44-46 (alteration, emphasis, internal quotation marks, and citation omitted).
And “the privilege . . . [is] reserved to the constitutionally-designated head of the
executive branch—the Governor.” Id. ¶ 47. Consequently, only the Governor may
assert the privilege. Id.

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{10} 	Finally, the Supreme Court addressed how an assertion of the communications
privilege should be evaluated in the context of IPRA and refined the procedures set
out in earlier cases and different contexts. The procedures for evaluating executive
privilege, first articulated in State ex rel. Attorney General v. First Judicial District
Court of New Mexico, 96 N.M. 254, 261, 629 P.2d 330, 337 (1981), abrogated on
other grounds by Republican Party II, 2012-NMSC-026, required the court to
“balance 	the 	public’s 	interest 	in 	preserving 	confidentiality 	to 	promote 	intra-
governmental candor with the individual’s need for disclosure of the particular
information sought.” Id. at 258, 629 P.2d at 334. Under First Judicial’s approach,
the agency must first show that the privilege applies. 	Id. 	Next, the requester must
“show good cause for the production of the requested information.” Id. If good cause
is shown, then “the court must then conduct an in camera examination of the
requested material,” and “be satisfied that the . . . material would be admissible in
evidence and that it is otherwise unavailable” to the requester. 	Id. 	If “these
prerequisites are met,” the materials must be disclosed “provided that the public’s
interest in preserving confidentiality does not outweigh the specific needs of the
movant.” Id.
{11} 	The Republican Party II Court distinguished First Judicial, noting that it
“involved a discovery dispute, not a public records request.” 	Republican Party II,

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2012-NMSC-026, ¶ 49. The Court held that “a party requesting public records under
IPRA need not assert any particular need for disclosure.” 	Id.; see § 14-2-8© (“No
person requesting records shall be required to state the reason for inspecting the
records.”). 	In addition, the Court held that First Judicial’s final balancing of the
interests of the movant and the public’s interest in confidentiality “does not apply to
claims of executive privilege under IPRA.” Republican Party II, 2012-NMSC-026,
¶ 49. “Instead, courts considering the application of executive privilege to an IPRA
request must independently determine whether the documents at issue are in fact
covered by the privilege, and whether the privilege was invoked by the Governor, to
whom the privilege is reserved.” Id.
{12} 	The overriding message of Republican Party II is that “every citizen has a
fundamental right to have access to public records.” 	Bd. of Comm’rs of Doña Ana
Cnty. v. Las Cruces Sun-News, 2003-NMCA-102, ¶ 16, 134 N.M. 283, 76 P.3d 36
(internal quotation marks and citation omitted), overruled on other grounds by
Republican Party II, 2012-NMSC-026; see § 14-2-1(A). 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. “This right is limited only by the Legislature’s enumeration of certain

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categories of records that are excepted from inspection.” Republican Party II, 2012-
NMSC-026, ¶ 13.
1. 	Email String
{13} 	DOH argued in the district court that the deliberative process privilege applied
to the email string because it was between DOH employees and was “part of the
internal decision-making process surrounding the DOH’s determination of permissible
and appropriate uses of remaining available federal funding for the 2007 fiscal year.”
Because New Mexico does not recognize the deliberative process privilege, that
privilege cannot prevent disclosure. 	To the extent that DOH relies on the
communication privilege in First Judicial, that privilege does not apply either. DOH
does not assert that the email string was a communication involving the Governor, nor
was the privilege asserted by the Governor. 	The email string is disclosable under
IPRA.
2. 	Draft Letter
{14} 	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(F).

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{15} 	The parties do not dispute that the requested letter was a draft. Thus, there is
no dispute of a material issue of fact; rather, the only question is whether draft
documents fall within IPRA’s definition of public records. It appears that the district
court resolved this question in the affirmative and then applied the “rule of reason” to
conclude that public policy against disclosure outweighed the general presumption in
favor of public access to public records.
{16} 	DOH argues that draft documents are not public records and points to Sanchez
v. Board of Regents of Eastern New Mexico University, 82 N.M. 672, 486 P.2d 608
(1971), the Office of the New Mexico Attorney General’s Inspection of Public
Records Act Compliance Guide (6th ed. 2009) (Guide), and “numerous regulations”
in the New Mexico Administrative Code for support. We agree with both NMFOG
and the Attorney General that these sources do not support DOH’s position and that
draft documents are public documents within IPRA’s reach.
{17} 	We note first that DOH’s position is belied by the broad language of the statute.
Under IPRA, public records include “all documents . . . 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(F); see The Daily Times, 2009-NMCA-057, ¶ 7 (stating that, under IPRA,
public records are “broadly defined”). 	IPRA provides for eight exceptions to this

2See 	Conn. 	Gen. 	Stat. 	Ann. 	§ 	1-210(b)(1) 	(West 	2001) 	(exempting	14
“[p]reliminary drafts or notes provided the public agency has determined that the	15
public interest in withholding such documents clearly outweighs the public interest	16
in 	disclosure”); 	5 	Ill. 	Comp. 	Stat. 	Ann. 	140/7(f) 	(West 	2011) 	(exempting	17
“[p]reliminary drafts, notes, recommendations, memoranda and other records in which	18
opinions are expressed, or policies or actions are formulated”); Kan. Stat. Ann. § 45-	19
221(a)(20) (West 2011) (exempting “[n]otes, preliminary drafts, research data in the	20
process of analysis, unfunded grant proposals, memoranda, recommendations or other	21
records in which opinions are expressed or policies or actions are proposed”).	22
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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. See Las Cruces Sun-News, 2003-NMCA-102, ¶ 11 (“Each inquiry
starts with the presumption that public policy favors the right of inspection.”). 	In
addition, unlike open records statutes in some other states,2 IPRA’s definition does not
exclude draft documents. DOH provides no argument based on the language of the
statute that demonstrates that drafts are excluded from this broad definition.
{18} 	DOH argues that Sanchez, decided in 1971, “remains good law” and stands for
the proposition that “preliminary, non-final material” is not a public record. 	In
Sanchez, the Court held that a list of proposed salaries for university staff was exempt
from 	disclosure 	because 	“no 	useful 	purpose 	would 	be 	served 	by 	disclosing
preliminary contractual negotiations between the board and its . . . employees.” 82
N.M. at 675, 486 P.2d at 611. Both NMFOG and the Attorney General argue that
Sanchez is no longer good law because it pertained to a “version of IPRA that no

13
longer exists” and because its reasoning rested on “an early application of the ‘rule of
reason.’ ” We agree that Sanchez is not controlling here.
{19} 	First, Sanchez’s holding relied on the Public Records Act, which defined
“public records” differently than both the version of IPRA in place at the time and the
current iteration of IPRA. Compare the Public Records Act, NMSA 1978, § 14-3-2
(G) (2005), with IPRA, NMSA 1953, § 71-5-1 (Supp. 1975) and § 14-2-6(F). In fact,
the version of IPRA in place when Sanchez was decided did not even include a
definition of public records. 	See § 71-5-1; Newsome, 90 N.M. at 797, 568 P.2d at
1243. In Newsome, the Court made clear that the two statutes were distinct because
they had different purposes. 	90 N.M. at 797, 568 P.2d at 1243. 	It held that the
purpose of the Public Records Act was “to establish a system for preserving records,”
and that “[the Public Records Act and IPRA] have no relationship to each other for
purposes of decision [on disclosure of personnel records].” Id. The Sanchez holding
does not address today’s IPRA.
{20} 	Second, the Sanchez decision hinged in large part on the lack of “finality” of
the list. Sanchez, 82 N.M. at 675-76, 486 P.2d at 611-12. The Court wrote, “[w]e do
not consider ‘thought processes,’ that is, the offer of a contract, such a public record
as would require public inspection.” Id. at 675, 486 P.2d at 611. The Court reasoned,
We would deny the right to inspect these records of the Board of Regents
on the subject of salary contract negotiations before the task was

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completed. It would not seem fair that the general public should know
the contents of an offer of salary to an individual conceivably prior to the
receipt of the offer by the contemplated employee. . . . [W]e would not
take away the right of the [p]etitioners to know about salary matters, but
would merely suspend or defer the privilege of inquiry until the Board
of Regents reaches its final conclusion, i.e., the culmination of the
contract between the board and the individual.
Id. at 675-76, 486 P.2d at 611-612. We agree with the Attorney General that “[t]he
[C]ourt in Sanchez balanced the competing interests apparent in that case and decided
that the right to know was outweighed by policy considerations.” Although not called
so by the Sanchez Court, this analysis is essentially the “rule of reason,” later
recognized in Newsome, 90 N.M. at 797, 568 P.2d at 1243. This rule “requires the
district court to balance “the fundamental right of all citizens to have reasonable
access to public records against countervailing public policy considerations which
favor confidentiality and nondisclosure.” 	The Daily Times, 2009-NMCA-057, ¶ 8
(internal quotation marks and citation omitted). In Newsome, the Court wrote that
“[u]ntil the Legislature gives us direction [as to draft documents], the courts will have
to apply the ‘rule of reason’ to each claim for public inspection as they arise.” 90
N.M. at 797, 568 P.2d at 1243. In Republican Party II, the Supreme Court held that
subsequent modification of IPRA rendered the “rule of reason” obsolete: 	“[t]he
Legislature has since responded to the [Newsome] Court’s request, obviating any need
that existed for application of the ‘rule of reason,’ by enumerating specific exceptions

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to disclosure[.]” 	2012-NMSC-026, ¶ 16. 	Thus, as the Attorney General argues,
Sanchez is “limited to its facts as a rule of reason analysis, . . . . It is not a
proclamation that draft documents are always exempt from IPRA.”
{21} 	DOH next 	points to the Attorney General’s Guide and states that it is
“harmonious with Sanchez.” The Guide states that
Even if related to the performance of their public duties, notes and other
materials prepared or collected by public employees solely for their own
use may not be public records. These preliminary materials do not share
the degree of finality suggested by the terms “documents,” “papers” and
“letters” in the definition of public records, and generally are not
intended to perpetuate, formalize or communicate information for or on
behalf of the public agency. . . . Thus, such materials generally will not
be considered public records, provided employees create or use them
solely for their own convenience and unless the materials are expressly
referenced in or attached to a clearly public document, such as a final
report.
Guide, at 29. DOH’s reliance on the Attorney General’s Guide is misplaced. First,
the Guide is not binding on courts. Second, this language does not mean that draft
documents are exempt from IPRA. 	Rather, as the Attorney General asserts, the
passage “clarif[ies] that only notes and other materials prepared solely for an
employee’s own use might not be subject to IPRA . . . . This necessarily means that
. . . some drafts are public records subject to [IPRA].”

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{22} 	Third, the Guide states in the same paragraph that
like information protected by the executive privilege . . ., dissemination
[of drafts] could easily lead to misinformation or false conclusions about
the 	public 	entity’s 	business. 	Anticipation 	of 	disclosure 	could
unnecessarily hamper a public employee’s ability to do his or her job by
discouraging or tempering the employee’s taking of notes, keeping
research materials or experimenting with creative ideas in preliminary
drafts of memoranda and letters. An agency’s effectiveness would be
significantly undermined if its employees, worried that every scrap of
paper recording their own impressions or notes could be disclosed
publicly, limited what they wrote down in the course of performing their
duties.
Id. (emphasis added). 	This explanation for why draft documents prepared for an
employee’s own use should not be disclosed echoes the reasoning behind the
deliberative process privilege, which “has been developed with the stated purpose of
protecting the frank and open discussions of ideas and the confidentiality of the give-
and-take that occurs among agency members in the formulation of policy.”
Republican Party II, 2012-NMSC-026, ¶ 26 (internal quotation marks and citation
omitted). This privilege was rejected by the Supreme Court. Id. ¶ 38. Like Sanchez,
the Guide does not support DOH’s argument that draft documents are not public
records.
{23} 	DOH’s third argument is that draft documents fall within IPRA’s catch-all
exception (“as otherwise provided by law”) because there are regulations exempting
draft documents in the New Mexico Administrative Code. 	See § 14-2-1(A)(8). 	It

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cites to numerous provisions of the Code in support of its contention that “[t]he
general scheme established in the Administrative Code is that draft material . . . is
considered a non-record.” See, e.g., 1.13.3.7(Z) NMAC (6/30/2008); 1.18.308.7(H)
NMAC (4/30/2012); 1.18.665.7(M) NMAC (12/20/2010). 	The cited regulations
derive from the Public Records Act. 	See NMSA 1978, § 14-3-1 to -25 (1959, as
amended through 2011); 1.13.3.3 NMAC (6/30/2008) (citing the Public Records Act
as the statutory authority for this regulation); 1.18.308.3 NMAC (4/30/2008) (same);
1.18.665.3 NMAC (7/15/2010) (same). 	This argument is unavailing because a
document’s designation as a “non-record” for the purposes of the Public Records Act
has no impact on its status as a public record under IPRA.
{24} 	The Public Records Act was enacted approximately twelve years after IPRA.
See Crutchfield v. N.M. Dep’t of Taxation & Revenue, 2005-NMCA-022, ¶ 23, 137
N.M. 26, 106 P.3d 1273. 	“[W]e presume that the Legislature was informed as to
existing law, and that the Legislature did not intend to enact a law inconsistent with
any existing law.” Id. (alteration in original) (internal quotation marks and citation
omitted). Under this principle, we infer that the Legislature did not intend to create
a conflict between the two statutes, as did the Newsome Court when it rejected
explicitly any overlap between the Public Records Act and IPRA. Newsome, 90 N.M.
at 797, 568 P.2d at 1243. 	There is no conflict between the IPRA and the Public

18
Records Act definitions because the two statutes serve different purposes. 	The
regulations DOH cites govern whether and how long an agency must retain a
document, but do not address whether that document is a public record under IPRA
while it is retained. The Guide provides an instructive example: “[u]ntil it is erased,
a tape recording of a board meeting is used, maintained or held by or on behalf of the
board and, therefore, constitutes a public record. During this time, even if it is very
short, the tape is subject to inspection.” Guide, at 28; see State ex rel. Toomey v. City
of Truth or Consequences, 2012-NMCA-104, ¶ 28, ___ P.3d ___.
{25} 	To the extent DOH argues that the Legislature implicitly endorsed exemption
of draft documents from public records by its failure to amend IPRA to address draft
documents explicitly, we disagree. DOH argues that the legislature was aware of the
“longstanding” regulations exempting drafts from public records and therefore
incorporated those regulations into IPRA when it did not reject them. We agree with
NMFOG that the fact that the Legislature did not address the regulations promulgated
pursuant to the Public Records Act in amendments to IPRA is “both unsurprising and
uninformative.” As discussed, the Public Records Act and IPRA are very different
statutes with different purposes. There was no reason for the Legislature to address
a conflict that does not exist.

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{26} 	Finally, we note that a regulation may prohibit the release of records under
IPRA but only when it has the force of law.
In most cases, a regulation or ordinance, by itself, may not be used to
deny access to public records because it is not a “law” for purposes of
the “otherwise provided by law” exception. However, according to the
New Mexico Supreme Court, a regulation making certain records private
may be proper if the regulation is authorized by a statute and is necessary
to carry out the statute’s purposes. 	See City of Las Cruces v. Public
Employee Labor Relations Bd., 121 N.M. 688, 917 P.2d 451 (1996).
Guide, at 21. In Public Employee Labor Relations Board, the authorizing statute in
question protected “the rights of public employees to collective bargaining and
[ensured] that their choice to do so remains private,” 121 N.M. at 691, 917 P.2d at
454, because the authorizing statute specifically prohibited discouraging, interfering
with, restraining, or otherwise impeding employees’ rights to organize. Id. at 690, 917
P.2d at 453. 	Therefore, a regulation preventing disclosure of a petition for
representation was consistent with legislative intent and covered by the “as otherwise
provided by law” exception in IPRA. 	Id. (internal quotation marks and citation
omitted). In this case, the purpose of the Public Records Act is “to establish a system
for preserving records.” Newsome, 90 N.M. at 797, 568 P.2d at 1243. This purpose
is solely organizational. 	See § 14-3-6 (“The administrator shall establish a records
management program for the application of efficient and economical management
methods to the creation, utilization, maintenance, retention, preservation and disposal

20
of official records.”). Unlike the statute in Public Employee Labor Relations Board,
there is nothing in the Public Records Act that gives a regulation designating draft
documents as “non-records” the force of law in the sphere governed by IPRA. DOH
does not direct us to any regulation with the force of law that prohibits release of the
draft letter in this case. We conclude that the draft letter should be disclosed.
B. 	Analysis of Retroactivity
{27} 	The Supreme Court did not indicate explicitly whether Republican Party II
would apply retroactively or prospectively. When such a statement is lacking, there
is “a presumption of retroactivity for a new rule imposed by a judicial decision in a
civil case.” Beavers v. Johnson Controls World Servs., Inc., 118 N.M. 391, 398, 881
P.2d 1376, 1383 (1994) (rejecting the “bright-line rule of retroactivity in all civil
cases” set out in Harper v. Virginia Dep’t of Taxation, 509 U.S. 86 (1993)). 	This
presumption, however, “may be overcome by a sufficiently weighty combination of
one or more . . . factors.” Beavers, 118 N.M. at 398, 881 P.2d at 1383. These factors
are: “(1) whether the case creates a new principle of law that has been relied upon[,]
(2) the prior history of the rule[,] and (3) the inequity of retroactive application.”
Stein v. Alpine Sports, Inc., 1998-NMSC-040, ¶ 9, 126 N.M. 258, 968 P.2d 769
(emphasis omitted). Reliance on the old rule is an important aspect of both the first
and third factors. 	See Beavers, 118 N.M. at 399, 881 P.2d at 1384. 	This inquiry

21
hinges partially on the degree of reliance: 	“[t]he greater the extent a potential
defendant can be said to have relied on the law as it stood at the time he or she acted,
the more inequitable it would be to apply the new rule retroactively.” Id. at 401-02,
881 P.2d at 1386-87.
{28} 	DOH justified withholding the email string and draft letter on different grounds.
It withheld the email string on the basis that it was covered by the deliberative process
privilege and the draft letter on the ground that drafts are not subject to IPRA at all.
Amicus Attorney General argues that Republican Party II’s holding regarding the
deliberative process privilege should be applied prospectively. In contrast, DOH does
not address retroactivity of Republican Party II’s holding regarding the deliberative
process privilege. 	DOH instead focuses its retroactivity argument on whether a
decision regarding whether draft documents fall within IPRA’s purview should be
applied retroactively. DOH’s rationale for exempting draft documents from IPRA
appears to rest in large part on “public policy concerns that weigh against requiring
disclosure of the draft . . . letter.” 	In other words, it suggests a “rule of reason”
analysis for why drafts should not be disclosed. It also relies on “the same principles
upon which [the deliberative process] privilege is grounded.” 	We address each of
these issues.

22
1. 	The Deliberative Process Privilege
{29} 	The preliminary inquiry in a retroactivity analysis is whether the case in
question announced a new rule. Stein, 1998-NMSC-040, ¶ 14. The Attorney General
argues that “[t]here is little doubt that the decision in Republican Party II overruled
a clear precedent, namely the use of executive privilege to shield documents from
production under IPRA.” 	He states that “[b]efore Republic[an] Party II, State
agencies—including [DOH]—frequently relied on the executive privilege as a basis
for withholding documents from production under IPRA.” 	We do not agree that
Republican Party II stated a new rule regarding the deliberative process privilege or
overruled precedent on that issue.
{30} 	Republican Party II was the Supreme Court’s “first occasion to consider
executive privilege in the context of a public records request.” 2012-NMSC-026, ¶
3. The Court “h[e]ld emphatically that no deliberative process privilege exists under
New Mexico law.” Id. ¶ 42. In doing so, the Court examined First Judicial, in which
the Court considered executive privilege in the civil discovery context. Republican
Party II, 2012-NMSC-026, ¶¶ 34-43; see First Judicial, 96 N.M. at 257, 629 P.2d at
333. The Court determined that although First Judicial “used language consistent
with both an executive communications privilege and a deliberative process
privilege,” it did not actually endorse the latter. Republican Party II, 2012-NMSC-

23
026, ¶ 40. In fact, First Judicial “reject[ed] . . . common law privileges” such as the
deliberative process privilege. Republican Party II, 2012-NMSC-026, ¶ 38. Thus, the
Supreme Court clarified that that privilege has never existed in New Mexico and that
the only privilege addressed in First Judicial was the executive communications
privilege. Republican Party II, 2012-NMSC-026, ¶ 40. The Court “disavow[ed] First
Judicial to the extent that it could be read to support the adoption of the deliberative
process privilege,” but did not overrule it as to its recognition of “a limited form of
executive privilege derived from the constitution.” Republican Party II, ¶¶ 42, 43.
{31} 	We conclude that Republican Party II did not announce a new rule regarding
the deliberative process privilege. Thus, we need not assess any other Beavers factors.
Republication Part II’s holding is retroactive. DOH improperly withheld the email
string and the draft letter to the extent that DOH withheld the letter based on a
rationale grounded in the deliberative process privilege.
2. 	The Rule of Reason
{32} 	Next we address DOH’s arguments regarding retroactive or prospective
application of Republican Party II to withholding of draft documents. To the extent
that DOH and amici argue that this Court’s holding in the present case regarding the
draft letter states a new rule, we disagree. 	Republican Party II overruled cases
applying the “rule of reason” to justify withholding records and stated that “courts

24
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 this Court or grounded in the constitution.”
2012-NMSC-026, ¶ 16. We are bound by this admonition. Thus, our holding that
there is no specific exception, statute, regulation, or privilege exempting draft
documents is not a new rule—it is an application of the rule set out in Republican
Party II. Consequently, our analysis is of the retroactivity of that rule.
{33} 	The first Beavers factor has two parts. 	The first is whether the case to be
applied announced a new rule. 	Stein, 1998-NMSC-040, ¶ 10. 	It is clear that
Republican Party II expressly overruled cases in which the “rule of reason” was
endorsed and limited the scope of what documents are exempt from IPRA. 	2012-
NMSC-026, ¶ 16. 	The second part of the first factor is the degree to which DOH
relied on the precedent overruled by Republican Party II. Padilla v. Wall Colmonoy
Corp., 2006-NMCA-137, ¶ 14, 140 N.M. 630, 145 P.3d 110. DOH argues that “there
has been widespread understanding by public bodies such as the [DOH] that
preliminary drafts are non-records.” It argues that this understanding derives from
IPRA’s “as otherwise provided by law” exception, Sanchez, and the Attorney
General’s Guide.

25
{34} 	We begin our assessment of reliance by noting that reliance cannot be shown
by simply stating that the law before the new rule was different. “[W]e have difficulty
with the circular argument that the rule is not retroactive because pre-rule conduct was
lawful—i.e., because the rule is not retroactive.” Beavers, 118 N.M. at 401, 881 P.2d
at 1386. Instead, we must delve into the “degree of reliance that persons affected . .
. by the rule may have placed on the state of the law antedating the rule.” 	Id. 	For
example, in Beavers, the Court concluded that in the context of an intentional tort case
“it is hard to imagine that a potential defendant plans his or her conduct with rules of
liability or nonliability in mind.” Id. at 400, 881 P.2d at 1385. In contrast, here, it is
reasonable and likely that DOH or another agency sought information on “the state
of the law” in order to act in accordance with it. As we have discussed, however, the
sources on which DOH claims to have relied do not declare that draft documents are
exempt from IPRA. As we noted above, the Administrative Code addresses the Public
Records Act, not IPRA. 	The Attorney General’s Guide is careful to distinguish
documents for personal use from draft documents subject to IPRA. And Sanchez dealt
with a version of IPRA that has been superseded, as acknowledged over thirty years
ago in Newsome. Reliance on these sources to withhold documents simply because
they are drafts is therefore misplaced. Although we recognize that a new rule was
announced, we determine that the first factor weighs in favor of retroactivity. 	See

26
Beavers, 118 N.M. at 400, 881 P.2d at 1385 (stating that although a new rule was
announced, the first factor weighed in favor of the presumption because a tortfeasor
could not be said to rely on the “claimed absence of potential liability for [his]
conduct”).
{35} 	We turn now to the second Beavers factor, in which we assess “whether
retrospective operation will further or retard” the purposes of the new decision. 118
N.M. at 398, 881 P.2d at 1383 (internal quotation marks and citation omitted). The
Supreme Court was clear that its holding was required by the Legislature’s intent to
promote open government. 	See § 14-2-5; Republican Party II, 2012-NMSC-026,
¶¶ 12-13. The purposes of Republican Party II’s holdings are, therefore, coextensive
with the purpose of IPRA itself, which is “to ensure that New Mexicans have the
greatest possible access to their public records.” San Juan Agric. Water Users Ass’n
v. KNME-TV, 2011-NMSC-011, ¶ 38, 150 N.M. 64, 257 P.3d 884. 	Since, after
Republican Party II, a requester could simply renew his or her request for previously
withheld documents in order to access them, retroactive application is not necessary
to this overarching goal. We imagine that some cases currently in litigation may be
resolved this way.
{36} 	We do not end our analysis there, however, because to do so ignores the
function of IPRA’s enforcement actions in achieving open government. 	These

27
provisions serve to promote open government for all, not just for individual litigants,
and are integral to the statute’s purpose. See § 14-2-11, -12.; San Juan Agric. Water
Users Ass’n, 2011-NMSC-011, ¶ 12 (“IPRA includes remedies to encourage
compliance and facilitate enforcement. . . . 	By giving enforcement power to any
person whose written request has been denied, IPRA’s provisions create ‘private
attorneys general’ for ‘more effective and efficient enforcement’ of IPRA than would
be possible if only the attorney general . . . could enforce the statute.”). In addition,
it ignores an abiding principle that underlies the presumption of retroactivity: that
similarly situated people should be treated similarly. See Beavers, 118 N.M. at 397,
881 P.2d at 1382. A finding of pure prospective application would deprive current
litigants of their right under IPRA to seek damages, costs, and attorney’s fees. We are
persuaded that the second factor is not strong enough to overcome the presumption
of retroactivity.
{37} 	Finally, DOH argues that “[r]etroactive application may also place some
agencies in the untenable position of facing claims that they erroneously responded
to previous IPRA requests” when they responded in good faith based on the cases and
regulations addressed above. DOH argues that “retroactive application creates the
potential for unforeseen liability for civil damages . . . going back several years.” But
the practical impact of retroactive application appears to be limited. The universe of

28
litigants is limited to five categories. First, there are those who will request records
after Republican Party II. 	These requesters will have the benefit of that decision
regardless of whether it applies retroactively or prospectively. Beavers, 118 N.M. at
397 n.7, 881 P.2d at 1382 n.7. Second are those who requested records, were denied,
and lost an enforcement action. Litigants are entitled to damages under IPRA only
when they prevail in an enforcement action. Section 14-2-12(D) (“The court shall
award damages, costs and reasonable attorneys’ fees to any person whose written
request has been denied and is successful in a court action to enforce the provisions
of the [IPRA].” (emphasis added)); Derringer v. State, 2003-NMCA-073, ¶ 10, 133
N.M. 721, 68 P.3d 961. 	These claims are likely precluded by res judicata. 	See
Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981) (“Nor are the res
judicata consequences of a final, unappealed judgment on the merits altered by the fact
that the judgment may have been wrong or rested on a legal principle subsequently
overruled in another case.”); Whenry v. Whenry, 98 N.M. 737, 741, 652 P.2d 1188,
1192 (1982). Even if they are not, requesters are more likely to simply request the
record again than to seek to re-open litigation. In any case, an agency could forestall
an enforcement action by providing the requested records. 	See Derringer, 2003-
NMCA-073, ¶ 13 (“Our question is whether [IPRA] allows damages when a lawsuit

29
is filed nearly a year after compliance [by the agency]. We have determined that it
does not.”).
{38} 	The third category consists of those who requested records over four years ago,
were denied, and did not initiate an enforcement action. Enforcement actions by this
group are barred by the statute of limitations. 	See NMSA 1978, § 37-1-4 (1880).
Fourth are those who requested documents less than four years ago, were denied, and
have not yet filed suit. 	Again, an agency could prevent a suit by providing the
records. The risk of “unforeseen liability” for claims by these four types of requesters
is minimal.
{39} 	Finally, there are those whose enforcement actions are ongoing, including
Appellant. In these cases it may be possible for an agency to avoid some damages by
immediately 	providing 	the 	requested 	draft 	records 	and 	thereby 	coming 	into
compliance with the new rule. See Derringer, 2003-NMCA-073, ¶ 10. DOH argues
that retroactive application “will likely have substantially unfair and inequitable
impact on government agencies that have relied on the interpretation of the IPRA in
the past.” The Attorney General argues that “[i]t is . . . inequitable to retroactively
apply money damages to [DOH] conduct that was entirely legal and proper at the time
it was undertaken.” We are not convinced that retroactive application would result in
an inequity, since we have determined that the sources on which DOH relied did not

30
support its position regarding drafts and Republican Party II held that New Mexico
has never recognized the deliberative process privilege. 	Furthermore, the pool of
possible litigants on these issues appears to be relatively small. If there were inequity
to DOH, it is counterbalanced by the inequity that would occur were we to apply the
new rule purely prospectively because Appellant incurred costs to pursue her rights
under IPRA. 	As discussed, the IPRA enforcement provisions permit requesters to
litigate on behalf of all citizens, which serves IPRA’s goals of open government. See
§§ 14-2-11, -12; San Juan Agric. Water Users Ass’n, 2011-NMSC-011, ¶ 12. 	If
Appellant were denied the opportunity to pursue these damages, these purposes of
IPRA would be undermined. 	Therefore, even if there were inequity to DOH, this
factor weighs in favor of retroactivity because it serves the purposes of IPRA and
because state agencies “[are] in a better position to ensure meaningful compliance
with the law” and, therefore, “it [is] more equitable to let the financial detriments be
borne 	by 	[DOH]” 	than 	by 	Appellant, 	“who 	[is] 	the 	Legislature’s 	intended
beneficiar[y].” Jordan v. Allstate Ins. Co., 2010-NMSC-051, ¶ 29, 149 N.M. 162, 245
P.3d 1214.
{40} 	We conclude that “[t]he three factors . . . do not . . . outweigh the presumption
of retroactivity associated with a judicial decision” regarding IPRA’s application to

31
draft documents. 	Beavers, 118 N.M. at 402, 881 P.2d at 1387. 	DOH is liable for
wrongful withholding of the draft letter.
C. 	Damages, Costs, and Attorney’s Fees
{41} 	Given that we are reversing the judgment in favor of DOH and remanding for
further proceedings, we determine that it is premature to address the issue of damages,
fees, and costs. The district court did not consider these issues on their merits given
its prior ruling. It is best to allow the district court to rule on them in the first instance
in light of our decision.
II. 	CONCLUSION
{42} 	We reverse the district court as to both the email string and draft letter because
neither the deliberative process privilege nor the rule of reason, on which its grant of
summary judgment was based, are recognized in New Mexico. We remand for further
proceedings consistent with this Opinion.
{43} 	IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge

WE CONCUR:

CYNTHIA A. FRY, Judge

MICHAEL E. VIGIL, Judge

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