March 11, 2025- Aaron Borrego v. First Judicial District Attorneys Office, No. A-1-CA-41149

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number:__________	2
Filing Date: March 11, 2025	3
No. A-1-CA-41149	4
AARON BORREGO and VIRGIL VIGIL,	5
Petitioners-Appellants,	6
v.	7
FIRST JUDICIAL DISTRICT ATTORNEY’S	8
OFFICE and FELICIA LUJAN,	9
Respondents-Appellees.	10
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY	11
Bryan Biedscheid, District Court Judge	12
Stalter Law LLC	13
Kenneth H. Stalter	14
Albuquerque, NM	15
for Appellants	16
Long, Komer & Associates, P.A.	17
Nancy R. Long	18
Jonas M. Nahoum	19
Santa Fe, NM	20
for Appellees	21
Amanda R. Lavin, Legal Director	22
Albuquerque, NM	23
for Amicus Curiae New Mexico Foundation for Open Government	24
Court of Appeals of New Mexico
Filed 3/11/2025 6:27 AM

Raúl Torrez, Attorney General	1
Santa Fe, NM	2
Aletheia V.P. Allen, Solicitor General	3
Alexander W. Tucker, Assistant Solicitor General	4
Lawrence M. Marcus, Assistant Solicitor General	5
Albuquerque, NM	6
for Amicus Curiae New Mexico Department of Justice	7
Bennett J. Baur, Chief Public Defender	8
Kimberly Chavez Cook, Appellate Defender	9
Santa Fe, NM	10
Adrianne Turner, General Counsel	11
Albuquerque, NM	12
for Amicus Curiae Law Office of the Public Defender	13

OPINION	1
MEDINA, Judge.	2
{1} Petitioners Aaron Borrego and Virgil Vigil appeal the district court’s order	3
granting Respondents’ motion for summary judgment, under the Inspection of	4
Public Records Act (IPRA), NMSA 1978, §§ 14-2-1 to -12 (1947, as amended	5
through 2023).1 Petitioners contend that the district court erred in concluding that	6
the following were not subject to disclosure under IPRA: (1) the content of plea	7
negotiations between the First Judicial District Attorney’s Office (FJDA) and	8
attorneys representing defendants and (2) the mandatory statements of admission the	9
defendants submitted with their applications to participate in the FJDA’s	10
preprosecution diversion program (PPD). We are satisfied, in light of district	11
attorneys’ constitutional role in New Mexico’s criminal justice system, defendants’	12
constitutional rights to effective assistance of counsel and to a public trial by an	13
impartial jury, and our Supreme Court’s recognition of the evidentiary privilege	14
expressed in Rule 11-410 NMRA, see Republican Party of N.M. v. N.M. Tax’n &	15
Revenue Dep’t, 2012-NMSC-026, 283 P.3d 853; State v. Trujillo, 1980-NMSC-004,	16
1The requests at issue in this appeal were submitted in August 2021. The
language of IPRA was amended in 2023, but the specific section relied on by the
parties has not substantially changed. The 2023 amendment renumbered the “as
otherwise provided by law” exception to IPRA from Section 14-2-1(H) (2019)
amendment to Section 14-2-1(L). We, therefore, cite the 2023 version of IPRA
throughout this opinion for ease of reference and to prevent confusion about the
current law.

2
93 N.M. 724, 605 P.2d 232, that the “as otherwise provided by law” exception, § 14-	1
2-1(L), shields records of plea negotiations from disclosure under IPRA. For the	2
same reasons we hold that mandatory statements of admission submitted under the	3
PPD are excepted from disclosure.	4
BACKGROUND	5
{2} The FJDA charged nine individuals for their roles in destroying the Soldier’s	6
Monument in the Santa Fe Plaza, Santa Fe, New Mexico, commonly referred to as	7
the Obelisk. The FJDA’s prosecutors and the defendants, through counsel, engaged	8
in plea negotiations. Many, if not all, plea negotiations were conducted through	9
email. Ultimately, the FJDA permitted the defendants to submit applications to the	10
FJDA’s PPD. See NMSA 1978, § 31-16A-7 (2019) (permitting a district attorney to	11
suspend criminal proceedings and divert defendants to PPD as provided for under	12
the Preprosecution Diversion Act, NMSA 1978, §§ 31-16A-1 to -8 (1981, as	13
amended through 2019) (the Act)). The express purpose of the Act is to “remove	14
those persons from the criminal justice system who are most amenable to	15
rehabilitation and least likely to commit future offenses, to provide those persons	16
with services designed to assist them in avoiding future criminal activity, to conserve	17
community and criminal justice resources, to provide standard guidelines and to	18
evaluate preprosecution programs.” Section 31-16A-2.	19

3
{3} Among the requirements of the FJDA PPD application and assessment	1
process, the defendants were required to submit statements of admission setting forth	2
the elements of each crime committed.2 The defendants submitted their statements	3
and eight of the defendants (the Obelisk defendants) were accepted to participate in	4
the program.3
5
{4} Three months later, Petitioners submitted written IPRA requests to the FJDA	6
and Felicia Lujan, Records Custodian, (collectively Respondents) seeking, among	7
other items, emails relating to the plea negotiations between the FJDA’s prosecutors	8
and attorneys representing the Obelisk defendants, as well as their statements of	9
admission. Respondents provided Petitioners with copies of the emails with the	10
content of the plea negotiation discussions redacted. Respondents did not provide	11
Petitioners with the statements of admission. As grounds for redacting the emails	12
and withholding the statements of admission, Respondents asserted that the records	13
were: (1) attorney work product, (2) “attorney-client privileged communications,”	14
2The FJDA PPD included a waiver in which participants waived their rights
to privacy under the arrest record information act, and, with the exception of
statements of admission, authorized the FJDA to release to the public all information
submitted by the applicant in their application to PPD.
3Defendants who are not accepted into PPD may request the return of their
statements of admission and those statements will not be used against them.
Presumably, plea negotiations would then resume. When a defendant is admitted in
the PPD but is subsequently discharged, the admission statement may be used as
evidence against the defendant.

4
(3) “include[d] privileged plea discussions or relate to the possible	1
settlement/resolution of pending litigation,” and (4) confidential under the Act.	2
{5} Petitioners filed petitions for alternative writs of mandamus, which were later	3
consolidated. Petitioners alleged in part that the redacting of the documents and	4
failure to produce documents violated IPRA because no lawful exception to	5
disclosure applied. Petitioners also filed a motion for summary judgment (MSJ),	6
reiterating their claim that IPRA did not except records of plea negotiations. 4
7
Petitioners argued that, while Rule 11-410, Rule 11-408 NMRA, and Rule 5-304	8
NMRA govern the admissibility of plea negotiations as to the negotiating	9
defendants, the rules do not create a privilege in other contexts. Respondents replied	10
in part that the redacted material and withheld statements of admission were	11
privileged under Rule 11-410 and therefore excepted from disclosure under Section	12
14-2-1(L).	13
{6} The district court deferred ruling on the MSJ and directed counsel for the	14
parties to consult with the Obelisk defendants and ascertain their position as to: “(1)	15
whether [their] plea negotiations [were] privileged; and (2) if so, whether [they]	16
waive[d] any privilege as to the email communications and [their] statements of	17
admission.” The Obelisk defendants filed a joint report, with an attached letter in	18
which they asserted that their plea negotiations and statements of admission were	19
4Petitioners filed two other MSJs that are not pertinent to this appeal.

5
privileged and protected by the New Mexico Rules of Criminal Procedure and the	1
New Mexico Rules of Evidence. The Obelisk defendants additionally maintained	2
that the release of the requested information would violate and infringe on their Fifth	3
Amendment rights and their contractual agreements with the FJDA. Counsel for the	4
Obelisk defendants asserted in general that several of their clients received threats	5
and that release of the documents posed safety concerns.	6
{7} The district court denied the MSJ, concluding that the requested information	7
was appropriately redacted and/or withheld under Section 14-2-1(L). Specifically,	8
the district court concluded that “[c]onstitutional rights, evidentiary privilege,	9
judicial procedure, and the good faith contractual rights of third parties can be	10
sources of such law or legal right referenced in [Section 14-2-1(L)].” Respondents	11
then moved for summary judgment on the grounds that they did not violate IPRA as	12
a matter of law, which the district court granted reiterating its prior ruling. Petitioners	13
appeal the district court’s order granting Respondents’ MSJ.	14
DISCUSSION	15
{8} Petitioners continue to assert that there is no IPRA exception permitting the	16
redaction or withholding of documents containing plea negotiations. Petitioners	17
contend that the evidentiary rules governing plea negotiations govern admissibility,	18
not disclosure under IPRA; the disclosure of plea negotiations under IPRA does not	19
implicate the Fifth Amendment privilege against self-incrimination; only statutes	20

6
and regulations may provide an exception to disclosure under IPRA and neither the	1
Respondents nor the Obelisk defendants invoked any statutory or regulatory	2
exceptions to disclosure; government agencies may not use contracts to “thwart”	3
disclosure under IPRA; and there is no IPRA exception based on allegations that	4
disclosure will endanger a person. Respondents answer that evidentiary privileges,	5
Fifth Amendment protections, and contractual rights provide a basis for withholding	6
the information.	7
{9} We first outline the standard of review and the analytical framework for IPRA	8
and the “as otherwise provided by law” exception. We then reflect on the public’s	9
right to access information under IPRA as weighed against governmental privilege	10
to withhold information as outlined in Republican Party. Next, we consider Rule 11-	11
410, the principle of candor underlying plea negotiations, and the constitutional and	12
legislative foundations of district attorney authority, as well as defendants’	13
constitutional rights to effective assistance of counsel and a public trial with an	14
impartial jury. Because we resolve the issue before us based upon the evidentiary	15
privilege for plea negotiations and the implicated constitutional considerations, we	16
do not address the remaining arguments of the parties.5
17
5 Petitioners did not assert that a distinction between the plea negotiation
emails and the statements of admission at issue exists such that it would implicate a
distinction in our analyses for the two types of information. We therefore assume
without deciding that the statements of admission are effectively a component of the
plea negotiation process under the PPD.

7
I. The Limits of the Public’s Right to Access Information Under IPRA	1
{10} The parties contest whether Rule 11-410 is a “privilege” recognized by our	2
Supreme Court such that it excepts documents containing plea negotiations and	3
discussions in criminal cases from disclosure under IPRA. Petitioners and Amicus	4
Curiae New Mexico Foundation for Open Government (NMFOG) assert in part that	5
Rule 11-410 is an evidentiary rule governing admissibility of evidence and not a rule	6
of “privilege” or confidentiality that prohibits disclosure in other contexts.	7
Respondents answer that our Supreme Court has already identified Rule 11-410 as	8
a “privilege.” See Trujillo, 1980-NMSC-004, ¶ 21 (“[A] weighing of conflicting	9
policies demonstrates that the balance is tipped in favor of interpreting Rule [11-]410	10
as the cloak of privilege around plea negotiation discussions.”). Similarly, Amicus	11
Curiae the New Mexico Department of Justice (NMDOJ) and Amicus Curiae Law	12
Offices of the Public Defender (LOPD) argue that the privilege expressed in Rule	13
11-410 shields the disclosure of plea negotiation documents. Respondents, as well	14
as NMDOJ and LOPD, additionally discuss the ramifications to the criminal justice	15
system that will result from opening the door to IPRA requests for documents	16
containing plea negotiation discussions, including, in part, significantly hindering	17
plea negotiations and prosecutors’ ability to obtain testimony from cooperative	18
codefendants.	19

8
A. Standard of Review, IPRA, and the “as Otherwise Provided by Law”	1
Exception to Disclosure	2
{11} The issues in this appeal raise questions of statutory interpretation arising	3
from the district court’s grant of summary judgment. With no facts in dispute, our	4
review of the district court’s summary judgment order involves purely legal	5
questions, which we review de novo. See Self v. United Parcel Serv., Inc., 1998-	6
NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582; Dunn v. N.M. Dep’t of Game & Fish,	7
2020-NMCA-026, ¶ 3, 464 P.3d 129 (noting that this Court reviews de novo disputes	8
that require us to “construe the statute and apply the relevant case law to undisputed	9
facts”).	10
{12} Our Legislature enacted IPRA to promote the goal of transparency in our state	11
government:	12
Recognizing that a representative government is dependent upon an	13
informed electorate, the intent of the [L]egislature in enacting [IPRA]	14
is to ensure, and it is declared to be the public policy of this state, that	15
all persons are entitled to the greatest possible information regarding	16
the affairs of government and the official acts of public officers and	17
employees.	18
Section 14-2-5. “IPRA is intended to ensure that the public servants of New Mexico	19
remain accountable to the people they serve.” San Juan Agric. Water Users Ass’n v.	20
KNME-TV, 2011-NMSC-011, ¶ 16, 150 N.M. 64, 257 P.3d 884. “The citizen’s right	21
to know is the rule and secrecy is the exception.” State ex rel. Newsome v. Alarid,	22

9
1977-NMSC-076, ¶ 34, 90 N.M. 790, 568 P.2d 1236, superseded by statute as stated	1
in Republican Party of N.M., 2012-NMSC-026.	2
{13} Under IPRA, “[e]very person has a right to inspect public records,” § 14-2-1,	3
by making a request pursuant to the procedures set forth in Section 14-2-8. IPRA	4
expressly enumerates categories of records that are excepted from inspection. See	5
§ 14-2-1(A)-(K) (enumerating among other things: attorney-client privileged	6
information, trade secrets, and governmental emergency response plans). In addition	7
to these specifically enumerated disclosure exceptions, IPRA excepts records from	8
inspection “as otherwise provided by law.” Section 14-2-1(L). This exception	9
includes statutory and regulatory bars to disclosure, constitutionally mandated	10
privileges, and privileges established by our rules of evidence. Republican Party,	11
2012-NMSC-026, ¶ 13.	12
B. Republican Party and the Public’s Right to Information Weighed Against	13
Privilege Under IPRA	14
{14} In Republican Party, our Supreme Court considered “executive privilege in	15
the context of a public records request,” and whether such privilege would qualify	16
under the “as otherwise provided by law” exception to disclosure, the same	17
exception that we address in this opinion. Id. ¶¶ 3, 13-16 (internal quotation marks	18
and citations omitted). The case weighed “a conflict between . . . two important	19
principles.” Id. ¶ 3. On the one side, our Supreme Court recognized the principle	20
underlying IPRA’s mandate that “‘a representative government is dependent upon	21

10
an informed electorate.’” Id. ¶ 1 (quoting § 14-2-5). On the other hand, our Supreme	1
Court observed that “[o]ur constitution and laws recognize that under certain	2
circumstances the [g]overnor is entitled to a limited degree of privilege . . . in the	3
course of performing [their] duties” in part because “[u]nder the New Mexico	4
Constitution, the people delegate . . . ‘supreme executive power of the state’” in the	5
governor. Id. ¶ 2 (quoting N.M. Const. art. V, § 4). Our Supreme Court recognized	6
that, while “the public’s right to access information concerning the inner workings	7
of its government is considerable, it is not without limit.” Id. As such, the Court was	8
called upon “to delineate under what circumstances the executive may properly	9
invoke that privilege pursuant to IPRA.” Id. ¶ 3.	10
{15} To do so, the Court assessed the history of the “rule of reason,” which had	11
been applied by the courts since Newsome, 1977-NMSC-076, to determine “whether	12
records not specifically exempted by IPRA nonetheless should be withheld from the	13
requester on the grounds that disclosure would not be in the public interest.”	14
Republican Party, 2012-NMSC-026, ¶ 15 (internal quotation marks and citation	15
omitted). The Court in Newsome suggested that the Legislature “delineate what	16
records are subject to public inspection and those that should be kept confidential in	17
the public interest” and the Legislature has since accommodated this request. 1977-	18
NMSC-076, ¶ 33. At the time of the decision in Newsome, in addition to the “as	19
otherwise provided by law” exception, three specific exceptions were delineated. Id.	20

11
¶ 8; see NMSA 1953, § 71-5-1 (1973) (recompiled as §§ 14-2-1). At the time of	1
Republican Party, thirty-five years later, an additional four specific exceptions were	2
delineated. See § 14-2-1 (2012). As such, our Supreme Court in Republican Party	3
determined that “any need that existed for application of the ‘rule of reason’” was	4
obviated. 2012-NMSC-026, ¶ 16.	5
{16} Further, in considering the history of the executive privilege in New Mexico,	6
Republican Party observed the explanation stated in State ex rel. Attorney General	7
v. First Judicial District Court of New Mexico, that “‘for a privilege to exist in New	8
Mexico, it must be recognized or required by the [N.M.] Constitution, the Rules of	9
Evidence, or other rules of [our Supreme Court].’” Id. ¶ 35 (quoting State ex rel.	10
Att’y Gen. v. First Jud. Dist. Ct., 1981-NMSC-053, 96 N.M. 254, 629 P.2d 330,	11
abrogated on other grounds by Republican Party of N.M., 2012-NMSC-026).	12
{17} Our Supreme Court in First Judicial, cited United States v. Nixon, 418 U.S.	13
683 (1974), agreeing that “[t]he purposes of the executive privilege are to safeguard	14
the decision-making process of the government by fostering candid expression of	15
recommendations and advice and to protect this process from disclosure.” First Jud.	16
Dist. Ct., 1981-NMSC-053, ¶ 17. The Republican Party Court reasoned, “First	17
Judicial District Court identified the competing interests as ‘the public’s interest in	18
preserving confidentiality to promote intra[]governmental candor,’ and ‘the	19
individual’s need for disclosure of the particular information sought.’” Id. ¶ 36	20

12
(quoting First Judicial, 1981-NMSC-053, ¶ 22). Republican Party identified that	1
these rationales “could support the executive communications privilege, the	2
deliberative process privilege, or both,” but disavowed this logic “to the extent that	3
it could be read to support the adoption of the deliberative process privilege.” Id.	4
¶¶ 41, 42. Republican Party then followed “the principles established by First	5
Judicial” in holding “that our jurisprudence supports a limited form of executive	6
privilege derived from the constitution” and proceeded to clarify its scope. Id. ¶ 43	7
{18} Fundamentally, in moving forward to determine “under what circumstances	8
the executive may properly invoke that privilege pursuant to IPRA,” our Supreme	9
Court explained how courts should analyze the question of whether it is appropriate	10
to withhold information from disclosure under IPRA. Id. ¶ 3. Specifically,	11
information “may be withheld because of a specific exception contained within	12
IPRA, or statutory or regulatory exceptions, or privileges adopted by this Court or	13
grounded in the constitution.” Id. ¶ 16.	14
C. Rule 11-410, Trujillo, and the Protection of Candor During Plea	15
Negotiations	16
{19} Relying on the plain language of Rule 11-410, Petitioners contend that this	17
rule only governs “when plea statements are ‘admissible’” and “[n]othing in the rule	18
prohibits using those statements against other persons or in other contexts.” NMFOG	19
additionally asserts that Rule 11-410 is not applicable to the Defendants because the	20
rule “explicitly prohibits admission of evidence of a guilty plea when the defendant	21

13
withdraws their plea or does not plead guilty” and “affords no such protection for a	1
guilty plea that is successful.”	2
{20} The interpretation of a provision of the New Mexico Rules of Evidence is a	3
question of law which we review de novo. See Allen v. LeMaster, 2012-NMSC-001,	4
¶ 11, 267 P.3d 806. “When construing our procedural rules [promulgated by our	5
Supreme Court], we use the same rules of construction applicable to the	6
interpretation of statutes.” Id. “Under the plain meaning rule, when a [rule]’s	7
language is clear and unambiguous, we will give effect to the language and refrain	8
from further [rule] interpretation.” State v. Hubble, 2009-NMSC-014, ¶ 10, 146	9
N.M. 70, 206 P.3d 579 (internal quotation marks and citation omitted). “In applying	10
the plain meaning rule, we additionally consider the context surrounding a particular	11
[rule], such as its history” and “its apparent objective.” State v. Archuleta,	12
2023-NMCA-077, ¶ 9, 536 P.3d 528 (internal quotation marks and citation omitted).	13
“[I]n giving effect to the plain meaning of the rule, we take care to avoid an absurd	14
or unreasonable result.” Id.	15
{21} We begin with the language of Rule 11-410. Rule 11-410 states:	16
A. Prohibited uses. In a civil, criminal, or children’s court	17
case, evidence of the following is not admissible against the defendant	18
who made the plea or participated in the plea discussions:	19
(1) a guilty plea that was later withdrawn;	20
(2) a nolo contendere plea;	21

14
(3) an admission in a delinquency case;	1
(4) a statement made during a proceeding on any of	2
those pleas or admissions in any court;	3
(5) a statement made during plea discussions with an	4
attorney for the prosecuting authority if the discussions did not	5
result in a guilty plea or resulted in a later-withdrawn guilty plea.	6
B. Exceptions. The court may admit a statement described in	7
Rule 11-410(A)(4) or (5) . . .	8
(1) in any proceeding in which another statement made	9
during the same plea or plea discussions has been introduced, if	10
in fairness both statements ought to be considered together, or	11
(2) in a criminal proceeding for perjury or false	12
statement, if the defendant made the statement under oath, on the	13
record, and with counsel present.	14
{22} Our Supreme Court first interpreted Rule 11-410 in Trujillo and held that Rule	15
11-410 precluded the admissibility of an incriminating statement made in connection	16
with a plea negotiation to impeach the defendant in a subsequent criminal	17
proceeding. Trujillo, 1980-NMSC-004, ¶¶ 3, 6. In so holding, the Court reasoned,	18
Rule [11-]410 embodies the public interest in encouraging negotiations	19
concerning pleas between the criminal defendant and the [s]tate. Guilty	20
pleas are an essential part of our criminal justice system, and candor in	21
plea discussions aids greatly in the reaching of agreements between the	22
defendant and the [s]tate. This ultimately results in the speedy	23
disposition of cases.	24
Id. ¶ 18; see also Santobello v. New York, 404 U.S. 257, 260-61 (1971) (recognizing	25
that plea bargaining “is an essential component of the administration of justice” in	26
supporting “prompt and largely final disposition of most criminal cases,” avoiding	27

15
“the corrosive impact of enforced idleness during pre[]trial confinement,” protecting	1
“the public from those accused persons who are prone to continue criminal conduct	2
even while on pretrial release,” and enhancing “the rehabilitative prospects of the	3
guilty when they are ultimately imprisoned” by “shortening the time between the	4
charge and [the] disposition”); Missouri v. Frye, 566 U.S. 134, 143 (2012)	5
(recognizing that “[n]inety-seven percent of federal convictions and ninety-four	6
percent of state convictions are the result of guilty pleas”). As our Supreme Court in	7
Trujillo recognized, these policy considerations are similar to those the President’s	8
Commission on Law Enforcement and Administration of Justice (the Commission)	9
found influential in approving plea bargaining:	10
The negotiated guilty plea serves important functions. The quality of	11
justice in all cases would suffer if overloaded courts were faced with a	12
great increase in the number of trials. Tremendous investments of time,	13
talent, and money, all of which are in short supply and can be better	14
used elsewhere, would be necessary if all cases were tried.	15
1980-NMSC-004, ¶ 18 (omission, internal quotation marks, and citation omitted).	16
The Trujillo Court further supported its interpretation of Rule 11-410 as “closing the	17
door on the admissibility of all of these matters as evidence at trial for either	18
substantive or impeachment purposes” by observing “[t]he attorney for the [s]tate	19
and the attorney for the defendant or the defendant acting pro se need to feel free to	20
discuss the merits of the case, the alternatives for disposition, and the possible	21
concessions each is willing to make.” Trujillo, 1980-NMSC-004, ¶ 19. The Court	22

16
concluded “a weighing of conflicting policies demonstrates that the balance is tipped	1
in favor of interpreting Rule [11-]410 as the cloak of privilege around plea	2
negotiation discussions.” Trujillo, 1980-NSMC-004, ¶ 21.	3
{23} The Commission’s recognition that negotiated plea agreements conserve	4
resources is similar to one of our Legislature’s expressed purposes of the Act: to	5
conserve criminal justice resources. See § 31-16A-2 (outlining the purpose of the	6
Act as “remov[ing] those persons from the criminal justice system who are most	7
amendable to rehabilitation and least likely to commit future offenses, to provide	8
those persons with services designed to assist them in avoiding future criminal	9
activity, to conserve community and criminal justice resources, to provide standard	10
guidelines and to evaluate preprosecution programs.” (emphasis added)).6
11
D. District Attorney Constitutional Authority, Confidentiality in Plea	12
Discussions, Effective Assistance of Counsel, and the Right to a Public	13
Trial by Impartial Jury	14
{24} The New Mexico Constitution identifies the district attorney as “the law	15
officer of the state and of the counties within [their] district.” N.M. Const. art. VI,	16
6 With regard to achieving the expressed purposes of the Act, we do not
overlook that our Legislature requires each district attorney to establish a
PPD. See § 31-16A-3. And our Legislature conferred upon each district attorney
significant discretion in deciding who should be admitted into the program. See § 31-
16A-4(B). Jeopardizing candor in communications made in relation to a PPD would
make it more difficult for district attorneys to perform their duties and exercise their
discretion. This may also have a chilling effect on defendants seeking PPD
consideration during the plea negotiation process.

17
§ 24. We recognize that inherent in this constitutional authority to enforce the law is	1
discretion. See State v. Session, 1978-NMCA-005, ¶ 2, 91 N.M. 381, 574 P.2d 600	2
(“The prosecutor makes the determination whether to file criminal charges and	3
which charges to file” (internal quotation marks and citation omitted)). 7 This	4
discretion is manifest in the plea discussion process. See State v. Romero, 2023-	5
NMSC-008, ¶ 43, 528 P.3d 640 (“A plea agreement is negotiated between the	6
defendant and the prosecution, and the parties may negotiate the terms of a plea	7
agreement to the full extent allowed by law.” (internal quotation marks and citation	8
omitted)); see also State v. Surratt, 2016-NMSC-004, ¶ 14, 363 P.3d 1204	9
(reasoning, while determining “clear evidence of an intent by the Legislature [is	10
required] to limit prosecutorial discretion,” that “courts must be wary not to infringe	11
unnecessarily on the broad charging authority of district attorneys” (internal	12
quotation marks and citation removed)). Further, a presumption of confidentiality	13
persists throughout the discretionary plea negotiation process. See United States v.	14
El-Sayegh, 131 F.3d 158, 163 (D.C. Cir. 1997) (“Public access to unconsummated	15
plea agreements cannot be squared with the confidentiality required for candid	16
7 The position of attorney general is established in the New Mexico
Constitution, and has been vested, as head of the NMDOJ, with concurrent authority
to prosecute criminal offenses with district attorneys by our Legislature. N.M. Const.
art. V, § 1; see NMSA 1978, § 8-5-1 (1933); NMSA 1978, § 8-5-2 (1975); NMSA
1978, § 8-5-3 (1933). Accordingly, similar reasoning as applied in this section and
opinion to district attorneys applies to the attorneys general.

18
negotiations.”).8 As the LOPD and NMDOJ agree here, the parties rely on this	1
confidentiality. See El-Sayegh, 131 F.3d at 163. Without it, the entire process would	2
be encumbered, if not rendered practically impossible. See id. at 162.	3
{25} Public disclosure of this information does not just risk the chilling	4
consequences implied in the analysis of Trujillo. See 1980-NMSC-004, ¶¶ 18-19;	5
see also El-Sayegh, 131 F.3d at 162 (“This chilling of plea negotiations is precisely	6
the evil sought to be avoided by [Fed. R. of Crim. P.] 11(e).”). Among other things,	7
plea negotiations may include sensitive information about victims and witnesses,	8
8In El-Sayegh, the D.C. Circuit Court of Appeals considered “refin[ing] the
concept of ‘judicial records’ to which there are public rights of access.” 131 F.3d at
159. The court “conclud[ed] that a plea agreement submitted to the court before the
plea is offered, solely for the purpose of allowing the court to rule on the
government’s motion to seal the agreement, is not subject at that stage to a public
right of access under either the First Amendment or the common law.” Id. We
recognize El-Sayegh considers public rights of access to judicial documents as they
relate to the First Amendment of the U.S. Constitution and the common law, and it
is therefore distinguishable in several respects to the issue before this Court. Despite
the differences in the pertinent legal frameworks, we consider El-Sayegh useful in
identifying the purposes of rules of admissibility relating to the plea process and
providing insight on the policy underlying the admissibility rule at issue here.
Further, we observe El-Sayegh articulates that a Freedom of Information Act request
may be the “appropriate device” to access the details of plea agreements for the sake
of “evaluating the performance of the Department of Justice or other law
enforcement agencies in their dealings with [a defendant].” Id. at 163. The public’s
access to government records to enable public oversight of government operations
is a key principle underlying IPRA. See Republican Party, 2012-NMSC-026, ¶ 1
(determining the applicability of exceptions to disclosure under IPRA by reasoning,
“[w]ithout some protection for the acquisition of information about the operation of
public institutions . . . the process of self-governance contemplated by the Framers
would be stripped of its substance” (internal quotations marks and citation omitted)).
This countervailing policy consideration is spoken to in part below.

19
and expressions of a defendant’s willingness to cooperate against people who have	1
been charged with crimes, some of whom might pose a threat of physical harm to a	2
potential cooperating witness or a threat of intimidating such a witness. For these	3
reasons, we observe that in order for a district attorney to satisfy their constitutional	4
mandate as the “law officer of the state and of the counties within [their] district,”	5
confidentiality in their plea negotiations and discussions with criminal defendants or	6
their counsel is implied. N.M. Const. art. VI, § 24.	7
{26} Further, we recognize there are relevant additional constitutional	8
considerations from the perspective of defendants during the plea negotiation	9
process. Notably, there is a constitutional right to effective assistance of counsel that	10
“extends to the plea[ ]bargaining process.” Lafler v. Cooper, 566 U.S. 156, 162	11
(2012); see also Frye, 566 U.S. at 144 (“The potential to conserve valuable	12
prosecutorial resources and for defendants to admit their crimes and receive more	13
favorable terms at sentencing means that a plea agreement can benefit both parties.	14
In order that these benefits can be realized, however, criminal defendants require	15
effective counsel during plea negotiations.”). “The reality is that plea bargains have	16
become so central to the administration of the criminal justice system that defense	17
counsel [too] have responsibilities in the plea bargain process, responsibilities that	18
must be met to render the adequate assistance of counsel that the Sixth Amendment	19
requires in the criminal process at critical stages.” Frye, 566 U.S. at 143; see State	20

20
v. Paredez, 2004-NMSC-036, ¶¶ 13-14, 136 N.M. 533, 101 P.3d 799 (recognizing	1
the Sixth Amendment right to effective assistance of counsel during plea	2
negotiations). In order to effectively represent the accused during plea negotiations,	3
defense counsel must be able to communicate candidly with the prosecutor—without	4
fear that those communications will be disclosed to the public.	5
{27} Disclosure of the content of plea negotiations additionally risks impeding on	6
a defendant’s right to a public trial by impartial jury. “The Sixth Amendment to the	7
United States Constitution requires in all criminal prosecutions, the accused shall	8
enjoy the right to a speedy and public trial, by an impartial jury.’ An impartial jury	9
is one that ‘does not favor one side more than another, treats all alike, [and] is	10
unbiased, equitable, fair and just.” State v. Romero, 2023-NMSC-014, ¶ 7, 533 P.3d	11
735 (internal quotation marks and citation omitted). Our State constitution requires	12
the same. See NM Const. art. II, § 14 (providing the right to “a speedy public trial	13
by an impartial jury”). Questioning prospective jurors during voir dire with respect	14
to their ability to apply the law impartially is the primary method in our criminal	15
justice system to uncover bias. Romero, 2023-NMSC-014, ¶ 8. Public disclosure of	16
the contents of plea negotiations risks informing potential jurors of facts regarding a	17
criminal case in those instances where plea negotiations do not resolve a case against	18
a defendant or all codefendants. The result of which could lead to the tainting of an	19
entire jury pool during voir dire and/or jeopardizing a jury verdict. Cf. State v. Perea,	20

21
1981-NMCA-033, ¶¶ 2, 14-15, 95 N.M. 777, 626 P.2d 851 (holding that juror	1
exposure by another juror to a newspaper article suggesting that the defendant was	2
guilty required a new trial).	3
II. Rule 11-410 and the Federal and New Mexico Constitutions Provide a	4
Basis for Withholding Disclosure of the Emails and Admissions Under	5
the “as Otherwise Provided by Law” Exception	6
{28} The reasoning underlying the requirement for candor in communications	7
between district attorneys and criminal defendants in fostering effective plea	8
agreements is analogous to the reasoning underlying the requirement for candor in	9
intragovernmental executive communications as recognized in First Judicial and	10
Republican Party. See First Judicial, 1981-NMSC-053, ¶ 17; Republican Party,	11
2012-NMSC-026, ¶ 36. The office of the district attorney is a constitutional office	12
with duties prescribed by the Legislature. See N.M. Const. art. VI, § 24 (establishing	13
the district attorney as “the law officer of the state and of the counties within [their]	14
district” and authorizing legislation to prescribe duties and qualifications for their	15
office); NMSA 1978, § 36-1-18(A)(1) (2001) (requiring each district attorney to	16
“prosecute . . . all cases, criminal and civil, in which the state or any county in [their]	17
district may be a party or may be interested). In performing these duties, district	18
attorneys often rely on confidentiality akin to a privilege to facilitate candor from	19
criminal defendants. Cf. Republican Party , 2012-NMSC-026, ¶ 2 (“Our constitution	20
and laws recognize that under certain circumstances the [g]overnor is entitled to a	21

22
limited degree of privilege . . . in the course of performing [their] duties” in part	1
because “[u]nder the New Mexico Constitution, the people delegate . . . supreme	2
executive power of the state” in the governor. (internal quotation marks and citation	3
omitted)).	4
{29} Our Supreme Court in Trujillo, 1980-NMSC-004, ¶ 18, recognized the	5
importance of candor in plea discussions. While Trujillo weighed policy	6
considerations in a context removed from IPRA, those same policy considerations	7
have application in the IPRA context. Notably, there is a public interest embodied	8
in Rule 11-410 to “encourag[e] negotiations concerning pleas between the criminal	9
defendant and the [s]tate. Guilty pleas are an essential part of our criminal justice	10
system, and candor in plea discussions aids greatly in the reaching of agreements	11
between the defendant and the [s]tate. This ultimately results in the speedy	12
disposition of cases.” Trujillo, 1980-NMSC-004, ¶ 18. The effectuation of candor in	13
plea discussions is as much undercut by a risk of public disclosure under IPRA as it	14
is by a risk of admission into evidence in a court of law. Cf. El-Sayegh, 131 F.3d at	15
162 (reasoning that, had a court ruled on a motion to seal a plea agreement submitted	16
to the court before the plea was offered in order to rule on a motion to seal the	17
agreement, “affording public scrutiny [of the plea agreement was] logically	18
incompatible with the nature of the proceedings. . . . The idea’s logical incoherence	19

23
is, of course, reflected in its practical effects—to thwart the use of documents that	1
parties would not submit at all without assurances of confidentiality”).	2
{30} We respect these considerations as at the core of the evidentiary protection for	3
defendants recognized as a “cloak of privilege” by our Supreme Court. See Trujillo,	4
1980-NMSC-004, ¶ 21 (“[A] weighing of conflicting policies demonstrates that the	5
balance is tipped in favor of interpreting Rule [11-]410 as the cloak of privilege	6
around plea negotiation discussions.” (emphasis added)); see also State v. Gonzalez,	7
2020-NMCA-022, ¶ 10, 461 P.3d 920. Similarly, as reasoned above, we	8
acknowledge district attorneys’ requirement for confidentiality to effectively reach	9
plea agreements in accordance with their constitutional authority as “the law officer	10
of the state and of the counties within [their] district.” N.M. Const. art. VI, § 24.	11
{31} The United States Supreme Court has recognized that “[a]lthough many	12
governmental processes operate best under public scrutiny, it takes little imagination	13
to recognize that there are some kinds of government operations that would be totally	14
frustrated if conducted openly.” Press-Enter. Co. v. Superior Ct. of Cal. for	15
Riverside Cnty., 478 U.S. 1, 8-9 (1986) (recognizing that there is no First	16
Amendment right of public access to grand jury proceedings). We conclude that plea	17
negotiations are one of those operations, and that recognizing a privilege for plea	18
negotiations is the only way to achieve the purposes of both Rule 11-410 and IPRA,	19
while ensuring that district attorneys are able to fulfill their obligations consistent	20

24
with their legislative and constitutional roles in New Mexico’s criminal justice	1
system and protecting defendants’ rights to effective assistance of counsel and to	2
enjoy the right to a public trial, by an impartial jury.	3
{32} Although the plain language of Rule 11-410 discusses admissibility in court,	4
the purposes of the rule cannot be achieved and the constitutional interests at stake	5
here cannot be protected without recognizing the cloak of privilege in the IPRA	6
context. Thus, we exercise caution in relying only on the plain language of Rule 11-	7
410 because the language’s “beguiling simplicity may mask a host of reasons why	8
[the rule], apparently clear and unambiguous on its face, may for one reason or	9
another give rise to legitimate (i.e., nonfrivolous) differences of opinion concerning	10
the [rule]’s meaning.” State ex rel. Helman v. Gallegos, 1994-NMSC-023, ¶ 23, 117	11
N.M. 346, 871 P.2d 1352. This recognition does not prevent the public from having	12
information about how prosecutors are handling cases, or how the FJDA handles	13
PPD cases. Indeed, public oversight is available here based on the considerable	14
information provided by the FJDA regarding its implementation of the Act,	15
including application information and various forms related to PPD, as well as the	16
pleadings filed in connection with the cases against the defendants.	17
{33} Accordingly, the documents containing plea discussions and the statements of	18
admission are privileged under Rule 11-410 and qualify as excepted from disclosure	19
under Section 14-2-1(L) of IPRA.	20

25
CONCLUSION	1
{34} For the foregoing reasons, we affirm.	2
{35} IT IS SO ORDERED.	3
_________________________________	4
JACQUELINE R. MEDINA, Judge	5
WE CONCUR:	6
_________________________	7
J. MILES HANISEE, Judge	8
_________________________	9
ZACHARY A. IVES, Judge	10