Republican Party of N.M. v. New Mexico Taxation & Revenue Dep't , 148 N.M. 877 ( 2010 )

Certiorari Granted, August 30, 2010, No. 32,524
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2010-NMCA-080Filing Date: June 25, 2010
Docket No. 28,292
THE REPUBLICAN PARTY OF NEW MEXICO,
and LYN OTT, Individually and in her capacity as
Help America Vote Act (HAVA), Director for the
Republican Party of New Mexico,
Plaintiffs-Appellants,
v.
NEW MEXICO TAXATION AND REVENUE
DEPARTMENT, MOTOR VEHICLE DIVISION,
and LUIS CARRASCO, custodian of records for
the New Mexico Taxation and Revenue Department,
Motor Vehicles Division,
Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Valerie A. Huling and Nan G. Nash, District Judges
Bowles and Crow
Jason Bowles
B.J. Crow
Albuquerque, NM
Hunter Law Firm
Colin Hunter
Albuquerque, NM
for Appellants
Long, Pound & Komer, P.A.
Mark T. Baker
Santa Fe, NM
1
for Appellees
OPINION
CASTILLO, Judge.
{1} Plaintiffs, the Republican Party of New Mexico and Lyn Ott, individually and as
director of the Help America Vote Act, appeal from a two-part order granting summary
judgment in favor of Defendants, the New Mexico Taxation and Revenue Department
(T&RD), the Motor Vehicle Division (MVD) of the T&RD, and Luis Carrasco as custodian
of public records for the T&RD (together referred to as “the State”). Plaintiffs requested
information from the State pursuant to the Inspection of Public Records Act (IPRA), NMSA
1978, Sections 14-2-1 to -12 (1947, as amended through 2009). The State did provide
records in response to the IPRA request, but relying on exceptions to IPRA and privilege,
the State redacted much of the information in the documents provided. Plaintiffs filed suit
challenging these redactions. The parties filed cross motions for summary judgment. The
district court concluded that the redactions were appropriate and granted summary judgment
in favor of the State. Plaintiffs now appeal.
{2} The public policy of New Mexico entitles “all persons . . . to the greatest possible
information regarding the affairs of government and the official acts of public officers and
employees.” Section 14-2-5. Transparency in government is paramount. However, not all
information is subject to public inspection, and there are exceptions to the general
proposition. See, e.g., § 14-2-1(A) (listing twelve exceptions to the public’s right to inspect
public records); City of Farmington v. The Daily Times, 2009-NMCA-057, ¶ 8, 146 N.M.
349, 210 P.3d 246 (describing the non-statutory exception to disclosure referred to as the
“rule of reason”). In the case before us, the State asserted three exceptions: non-disclosure
as required by the federal and state statutes limiting disclosure of motor vehicle records,
executive privilege, and attorney-client privilege. After carefully reviewing the record and
the arguments of the parties, we affirm the district court.
I. BACKGROUND
{3} This case arose as a result of an article by the Associated Press (AP) wherein it was
reported that New Mexico Governor Bill Richardson had proposed new regulations that
required undocumented aliens to provide additional forms of identification to procure New
Mexico drivers’ licenses. According to the article, T&RD estimated that nearly 27,000
undocumented aliens had acquired drivers’ licenses under the then existing regulations
which required undocumented aliens to present only one form of identification—either a
passport, federal individual tax identification number, or consular identification card. The
article also explained that the Richardson administration had become concerned that some
of those licenses might have been issued to individuals who submitted documents of
questionable authenticity and, as a result, the administration directed the MVD to perform
an audit to evaluate that concern. On July 25, 2006, only a few months after publication of
2
the AP article, Plaintiffs, wanting to “research whether undocumented aliens were voting in
federal, state, and local elections in New Mexico,” requested the following categories of
information from the State pursuant to IPRA:
1. All lists, compilations, and summaries thereof of
drivers’ licenses that have been issued to individuals who are
not citizens or legal residents of the United States pursuant to
[NMSA 1978,] § 18-19-5.12(B) [sic] [Request #1]; and
2. All memoranda, notes, reports, electronic mail
messages, or other documents that identify or describe the
number of drivers’ licenses that have been issued to
individuals who are not citizens or legal residents of the
United States pursuant to [NMSA 1978,] § 18-19-5.12(B)
[sic][.] [Request #2]
As an alternative to number [two] . . . you may produce the following:
All documents used as the basis for the [T&RD’s] statement
[in the AP article] that . . . “27,000 immigrants have obtained
licenses” . . . [Alternative to Request #2]; and
3. All documents discussing, relating to, or created in
response to instructions from the governor to audit records as
described in the AP article[.] [Request #3]
{4} The State provided Plaintiffs with 150 pages of records which consisted of e-mails
between the Governor’s office and the T&RD, e-mails between the T&RD and the MVD,
and spreadsheets produced by the MVD. However, a great portion of the information within
those documents was redacted. MVD explained to Plaintiffs that the redactions were legally
necessary and cited the following grounds for this claim: (1) Section 14-2-1(A)(12), an
exception to the right to request public documents under IPRA; (2) the New Mexico Driver
Privacy Protection Act (NMDPPA), NMSA 1978, Section 66-2-7.1 (2007); (3) Rule 11-503
NMRA, attorney-client privilege; and (4) executive privilege.
{5} Unsatisfied with the State’s response, Plaintiffs filed suit. Plaintiffs sought an order
compelling the State to produce copies of the documents without the redactions together with
any other documents pertinent to their request. Cross-motions for summary judgment
followed. The district court entered a partial ruling on the parties’ cross-motions concluding
that the federal Drivers Privacy Protection Act (DPPA) 18 U.S.C. §§ 2721 to -25 (1994, as
amended through 2000), and the NMDPPA require the State to maintain the confidentiality
of drivers’ personal information and, thus, the State appropriately redacted personal
information from the spreadsheets provided to Plaintiffs. Accordingly, the district court
granted summary judgment in the State’s favor with respect to this aspect of Plaintiffs’
claim. As to the remaining redactions—those made pursuant to executive and attorney-client
privileges—the district court reserved decision pending an in camera review of the
3
communications without redactions.
{6} After the in camera review, the district court granted summary judgment to the State
with respect to the remainder of Plaintiffs’ claims. Plaintiffs filed a motion for
reconsideration which was subsequently denied. This appeal followed.
II. DISCUSSION
{7} On appeal, Plaintiffs take issue with the district court’s conclusions that (1) the State
properly redacted personal drivers’ information from the spreadsheets, (2) the redactions
carried out pursuant to executive privilege were proper, and (3) the redactions carried out
pursuant to attorney-client privilege were proper. We begin with the applicable standard of
review and then address Plaintiffs’ arguments in turn.
A. Standard of Review
{8} The issues on appeal require us to interpret provisions of the DPPA and NMDPPA.
For issues of statutory construction, our standard of review is de novo. Bell v. Estate of Bell,
2008-NMCA-045, ¶ 11, 143 N.M. 716, 181 P.3d 708, cert. quashed, 2008-NMCERT-011,
143 N.M. 532, 202 P.2d 125. We are also required to review the district court’s decisions
regarding the applicability and construction of the attorney-client and executive privileges.
The district court’s construction of those privileges is a matter of law which is also subject
to de novo review. Public Serv. Co. of N.M. v. Lyons, 2000-NMCA-077, ¶ 10, 129 N.M.
487, 10 P.3d 166.
{9} Plaintiffs appeal from the district court’s orders in favor of the State on the parties’
cross-motions for summary judgment. “Summary judgment is appropriate where there are
no genuine issues of material fact and the movant is entitled to judgment as a matter of law.”
Weise v. Wash. Tru Solutions, L.L.C., 2008-NMCA-121, ¶ 2, 144 N.M. 867, 192 P.3d 1244(internal quotation marks and citation omitted). “[W]here the parties agree to have the
[district] court decide a case on cross-motions for summary judgment and where neither
party claims that disputed facts exist, this Court will review the case as presented by the
parties and decide it one way or the other.” Farmington Police Officers Ass’n Commc’n
Workers of Am. Local 7911 v. City of Farmington, 2006-NMCA-077, ¶ 33, 139 N.M. 750,
137 P.3d 1204 (Pickard, J., specially concurring in part and dissenting in part).
B. Redaction of Personal Driver’s Information
{10} Plaintiffs contend that the State improperly redacted personal drivers’ information
from the materials provided in response to Plaintiffs’ IPRA Request #1 and Alternative to
Request #2. IPRA provides that every citizen of this state has a right to inspect any public
records of this state except as otherwise provided by law. Section 14-2-1(A)(12). The State
relies on an exception set forth in state and federal statutes. See The Daily Times, 2009-
NMCA-057, ¶ 11 (holding that the language “[except] as otherwise provided by law” has
generally been interpreted as referring to exceptions contained in other statutes (internal
quotation marks and citation omitted)). According to the State, it was required to redact
4
personal driver’s information under the terms of the DPPA and the NMDPPA. Both statutes
generally restrict the disclosure of personal information in a driver’s motor vehicle record
without the driver’s affirmative consent unless certain specified exceptions to the prohibition
apply. See 18 U.S.C. § 2721(a)(1) (stating that “[a] [s]tate department of motor vehicles, and
any officer, employee, or contractor thereof, shall not knowingly disclose or otherwise make
available to any person or entity: . . . personal information . . . about any individual obtained
by the department in connection with a motor vehicle record”); 18 U.S.C. § 2721(b) (listing
exceptions); § 66-2-7.1(A) (stating that “[i]t is unlawful for any department or bureau
employee or contractor . . . to disclose to any person other than another employee of the
department or bureau any personal information about an individual obtained by the
department or bureau in connection with a driver’s license or permit . . . [except as provided
in enumerated exceptions (1) through (11)])”.
{11} The DPPA is a reflection of “the ongoing tug-of-war between the public’s right to
know and individual privacy interests.” Maureen Maginnis, Maintaining the Privacy of
Personal Information: The DPPA and the Right of Privacy, 51 S.C. L. Rev. 807, 808
(2000). Before passage of the DPPA, the majority of states allowed almost total public
access to personal information in motor vehicle records. Oliver J. Kim, Note, The Driver’s
Privacy Protection Act: On the Fast Track to National Harmony or Commercial Chaos?,
84 Minn. L. Rev. 223, 243 (1999). A major impetus behind passage of the legislation was
the growing concern about crimes committed by individuals who used motor vehicle records
to identify and locate victims. Deborah F. Buchman, Annotation, Validity, Construction,
and Application of Federal Driver’s Privacy Protection Act, 18 U.S.C.A. §§ 2721 to 2725,
183 A.L.R. Fed. 37, § 2 (2003). One highly publicized case involved actress Rebecca
Schaeffer, who became a victim in 1989 when she was murdered outside her apartment by
a stalker who obtained her unlisted address from the California Department of Motor
Vehicles. Maginnis, supra, at 809.
{12} Congress was also concerned about what had become a common practice in many
states: the sale of information in motor vehicle records for marketing purposes. This practice
inundated citizens’ mail boxes across the country with junk mail and unwanted solicitations.
183 A.L.R. Fed. 37, § 2. Passage of the DPPA in 1994 regulated the disclosure and resale
of motor vehicle records, and this prompted a number of constitutional challenges to the
statute. See Thomas H. Odom & Gregory S. Feder, Challenging the Federal Driver’s
Privacy Protection Act: The Next Step in Developing a Jurisprudence of Process-Oriented
Federalism Under the Tenth Amendment, 53 U. Miami L. Rev. 71, 73 (1998). The issues
were answered in a unanimous opinion of the United States Supreme Court in Reno v.
Condon, 528 U.S. 141, 150-51 (2000), which held that the DPPA did not run afoul of the
principles of federalism and that the statute was a valid exercise of congressional authority
under the Commerce Clause. As previously discussed, the NMDPPA contains restrictions
and exceptions similar to those in the DPPA.
{13} The State’s position is that the information redacted from the spreadsheets
indisputably qualifies as personal information protected from disclosure under both the
DPPA and the NMDPPA. The State redacted two types of information: (1) the names,
driver’s license numbers, and addresses of drivers who obtained their licenses with proof of
5
identification other than a social security number and (2) individual tax identification
numbers. Drivers’ names, license numbers, and addresses are specifically designated by
these statutes as personal information. See 18 U.S.C. § 2725(3) (defining “personal
information” under the DPPA as “information that identifies an individual, including an
individual’s photograph, social security number, driver identification number, name, address
(but not the 5-digit zip code), telephone number, and medical or disability information”);
NMSA 1978, § 66-1-4.14(F) (1999) (defining “personal information” under the NMDPPA
as “information that identifies an individual, including an individual’s photograph, social
security number, driver identification number, name, address other than zip code, telephone
number and medical or disability information”). Although individual tax identification
numbers are not specifically listed, they are similar to social security numbers and meet the
definition of personal information because they provide identifying information. We agree
with the State that the information redacted from the spreadsheets is personal information
governed by the DPPA and the NMDPPA. This, however, does not end our inquiry.
{14} According to Plaintiffs, their request was based on one of the stated exceptions to the
disclosure prohibitions in the DPPA and the NMDPPA, specifically the exception that allows
disclosure of personal driver’s information for research activities. See 18 U.S.C. §
2721(b)(5) (“Personal information . . . [may] be disclosed . . . [f]or use in research activities,
and for use in producing statistical reports, so long as the personal information is not
published, redisclosed, or used to contact individuals.”); § 66-2-7.1(A)(4) (“It is unlawful
. . . to disclose . . . any personal information . . . except . . . for use in research activities and
for use in producing statistical reports, so long as the personal information is not published,
redisclosed or used to contact individuals[.]”). We observe that Plaintiffs did not initially
indicate that their request was based on this exception, and they did not assert this as a basis
for disclosure until after filing their complaint. More importantly to the evaluation of this
issue, however, is Plaintiffs’ failure to provide us with any citation or guidance to assist in
defining what the term “research” means in the context of the DPPA and the NMDPPA. Nor
have Plaintiffs provided any facts upon which the exception could be based. This Court has
no duty to review an argument that is unclear or inadequately developed. See Headley v.
Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (stating that
we will not review unclear or undeveloped arguments).
{15} Even if we were to agree that the request was for purposes of research, there are
limitations on the use of the information once obtained, and this undercuts Plaintiffs’
argument. The research exception explicitly prohibits the redisclosure or publication of any
personal driver’s information received pursuant to the research exception and, further,
prohibits the use of that information to contact the individuals from whom the information
was obtained. See 18 U.S.C. § 2721(b)(5) (“Personal information . . . [may] be disclosed .
. . [f]or use in research activities . . . so long as the personal information is not published,
redisclosed, or used to contact individuals.”); § 66-2-7.1(A)(4) (same). To achieve the stated
objective underlying their request, i.e., to challenge voter eligibility pursuant to NMSA
1978, Section 1-4-22 (1995), Plaintiffs would be required to disclose or publish the personal
driver’s information they receive. Under Section 1-4-22, only specific parties are permitted
to advance a claim challenging voter eligibility. See § 1-4-22(A) (specifying that only “the
secretary of state, the county chairman of any major political party or any twenty petitioners
6
who are voters of the county may file and present to the district court a verified petition
alleging either on personal knowledge or on information and belief that certain persons
registered, named in the petition, are not qualified electors in the precincts named in the
petition”). To establish voter fraud, Plaintiffs would be required to disclose the personal
information obtained from the motor vehicle records to one of these parties. Furthermore,
in submitting their claim to the district court, Plaintiffs would necessarily disclose the
information a second time, this time to the district court. Finally, it seems inevitable that
Plaintiffs’ attempts to verify voter eligibility would undoubtedly precipitate a process
through which that personal information would be used to contact the individuals from
whom that information was obtained. The research exception cannot be used under these
circumstances.
{16} In their final argument on this issue, Plaintiffs contend that because the State makes
drivers' personal information available to third-party vendors, it is required to make the
information available to them. Again, Plaintiffs have failed to provide any authority to
support this argument. See State v. King, 2007-NMCA-130, ¶ 17, 142 N.M. 699, 168 P.3d
1123 (refusing to consider arguments unsupported by authority or analysis). We observe
that the DPPA and the NMDPPA list a number of exceptions, and it is possible that a third-
party vendor would be entitled to personal information under one of the exceptions.
Plaintiffs do not develop this issue, nor is it before this Court. What is before this Court is
whether, based on the record and arguments before us, the State properly redacted personal
information from lists of motor vehicle records. In this regard, we reject Plaintiffs’ assertion
that they are entitled to the unredacted information and hold that the district court did not err
in granting summary judgment in favor of the State with respect to this portion of Plaintiffs’
request.
C. Redactions Pursuant to Executive Privilege
{17} In their second issue, Plaintiffs contend that the district court erred when it
determined that the State was entitled to redact and withhold requested communications on
the grounds of executive privilege. Before we address Plaintiffs specific arguments, we
provide a short history of executive privilege and summarize what it involves under New
Mexico law.
1. Executive Privilege
{18} “Since the beginnings of our nation, executive officials have claimed a variety of
privileges to resist disclosure of information the confidentiality of which they felt was
crucial to fulfillment of the unique role and responsibilities of the executive branch of our
government.” In re Sealed Case, 121 F.3d 729, 736 (D.C. Cir. 1997). Among the categories
of executive privilege, two are primary: the most oft-cited deliberative process privilege and
the chief executive communications privilege. Matthew W. Warnock, Comment, Stifling
Gubernatorial Secrecy: Application of Executive Privilege to State Executive Officials, 35
Cap. U. L. Rev. 983, 985 (2007). Although closely affiliated, the two privileges are distinct
and have different scopes. In re Sealed Case, 121 F.3d at 745. Both are “designed to protect
executive branch decision[]making, but one applies to decision[]making of executive
7
officials generally, the other specifically to decision[]making of the [executive].” Id.
2. Executive Privilege in New Mexico
{19} In State ex rel. Attorney General v. First Judicial District Court of New Mexico, 96
N.M. 254, 257-58, 629 P.2d 330, 333-34 (1981), the New Mexico Supreme Court recognized
executive privilege as a necessity for the successful functioning of an independent executive
branch of government. The “recognition of an executive privilege is required by the
Constitution of the State of New Mexico,” specifically Article III, which provides for the
separation of powers among the three branches of government. First Judicial, 96 N.M. at
257, 629 P.2d at 333. The purpose of the privilege is to
safeguard the decision[]making process of the government by fostering
candid expression of recommendations and advice and to protect this process
from disclosure. Executive personnel who fear or expect public
dissemination of their remarks may temper their comments because of their
concern for their own personal interests, safety, or reputation.
Id. at 258, 629 P.2d at 334.
{20} The privilege is not absolute. Id. Although the need for confidentiality among the
executive is worthy of protection, the court must determine whether the particular
circumstances of a case allow the imposition of the privilege. Id. This is done by balancing
the competing interests of 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.
3. Plaintiffs’ Arguments
{21} In their challenge to the district court’s decision, Plaintiffs make two arguments.
First, they claim that the State is prohibited from withholding information sought through
an IPRA request by claiming executive privilege. Plaintiffs also assert that executive
privilege is inapplicable on its merits. We address these arguments in turn.
a. Statutory Construction
{22} Plaintiffs rely on a canon of statutory construction known as expressio unius est
exclusio alterius—the inclusion of one thing implies the exclusion of another. Plaintiffs
contend that IPRA was “enacted” after First Judicial and that attorney-client privilege was
expressly included as an exception to disclosure, while executive privilege was not.
According to Plaintiffs, the omission of executive privilege as a listed exception evidences
the Legislature’s intent to exclude the privilege as a basis for withholding documents
requested under IPRA.
{23} First, Plaintiffs are incorrect that IPRA was enacted after First Judicial. IPRA was
first enacted in 1947 by 1947 N.M. Laws, Chapter 130, Section 1. First Judicial was
8
decided in 1981. The 1947 version of IPRA did not list either privilege as an exemption.
Id. IPRA was later recompiled as Sections 14-2-1 through -12 and amended in 1973, 1981,
1993, and 1998. It was not until 1999 that IPRA was amended to include attorney-client
privilege as a specifically listed exemption. The current version of IPRA continues to
exempt documents subject to the attorney-client privilege, and there is no specific mention
of executive privilege. We evaluate Plaintiffs’ argument in this context.
{24} We review statutory construction de novo. The Daily Times, 2009-NMCA-057, ¶ 6.
In ascertaining legislative intent, we first look to the statute’s plain language, and when the
“statute’s language is clear and unambiguous, we give the statute its plain and ordinary
meaning and refrain from further interpretation.” Id. (internal quotation marks and citation
omitted). There are currently twelve statutory exceptions provided within IPRA itself. See
§ 14-2-1(A)(1)-(12). We agree that attorney-client privilege is a specific exemption and
executive privilege is not, but the list of specific exemptions is not exhaustive. The last
exception excepts those public records that are confidential “as otherwise provided by law,”
Section 14-2-1(A)(12), and "has generally been interpreted as referring to exceptions
contained in other statutes and properly promulgated regulations." The Daily Times, 2009-
NMCA-057, ¶ 11. In addition to the statutory exceptions, “our Supreme Court has
recognized a non-statutory exception to disclosure.” Id. ¶ 8. “This non-statutory exception,
also referred to as the ‘rule of reason,’ . . . is applicable . . . to claims of confidentiality
asserted for public records that do not fall into one of the statutory exceptions[.]” Id.
(internal quotation marks and citation omitted). Under this exception, a district court is
required “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.” Id. (internal quotation marks and citation omitted). The countervailing
public policy underlying executive privilege can support a determination in favor of
confidentiality. Accordingly, we reject Plaintiffs expressio unius argument. The fact that
executive privilege is not listed as a specific exception does not mean the Legislature has
prohibited the assertion of the privilege as a basis for protecting the confidentiality of certain
documents requested under IPRA.
b. Applicability on its Merits
{25} Plaintiffs also argue that the privilege is inapplicable on its merits. Plaintiffs rely on
language in The Inspection of Public Records Act: A Compliance Guide for New Mexico
Public Officials and Citizens, p. 22 (6th ed. 2009), http://www.nmag.gov/pdf/AGO IPRA
Guide 6th Ed.pdf: “The [executive] privilege is not absolute and may not be used unless
revelation of a particular document will truly compromise the agency’s decision-making
process, and thus outweighs the public’s interest in disclosure.” We agree that the privilege
is not absolute. First Judicial, 96 N.M. at 258, 629 P.2d at 334. As to the burden, Plaintiffs
argue that the State did not meet its burden of showing that disclosure of the documents
would truly compromise the agency’s decision-making process because (1) the documents
were in the custody of the MVD, not the Governor’s office; (2) the communications were
between mid to low-level employees; and (3) none of the documents are part of the internal
policy-making processes of the Governor’s office. We observe that no argument was raised
below or on appeal regarding the difference, if any, between the evaluation of the privilege
9
in the context of discovery and in the context of an IPRA request. Similarly, no argument
was made that the district court failed to follow the rule of reason in applying the privilege
or that the privilege was improperly asserted. Before we address Plaintiffs’ three points, we
digress to review the district court’s evaluation of the privilege.
{26} The district court followed the requirements regarding the assertion of executive
privilege in the context of discovery. The State had prepared a log of all documents
produced in response to the IPRA request. The log listed the type of document, the reason
produced, its authors, recipients, and subject, the date created, subject matter, and the basis
for the redactions made to the document. Executive privilege was asserted as the basis for
redactions to communications regarding: (1) New Mexico’s negotiations with the Mexican
government to obtain access to Matricula Consular documents; (2) legal and policy
discussions about New Mexico drivers who applied for their licenses using documents
whose authenticity had not been confirmed by the T&RD; and (3) legal and policy
discussions related to the audit process.
{27} At the hearing on the cross motions for summary judgment, the district court listened
to the arguments of the parties as to the operation of the privilege on the documents
indicated. The district court determined that the privilege had been invoked; that Plaintiffs
had shown that their interest in protecting the integrity of the voting process constituted good
cause for requesting the information; and that in order to properly evaluate the privilege, it
would reserve ruling whether the privilege applied “pending an in camera review of the
communications at issue.” Under the “rule of reason,” the court is to “view, in camera, the
information in the possession of the custodian and make a determination regarding the
competing public policies based on that information.” The Daily Times, 2009-NMCA-057,
¶ 13.
{28} The State provided the district court with copies of the subject documents without
redactions. The district court determined that executive privilege exists basically to “aid
governmental decision[]making” and undertook the in camera review to “determine whether
or not there is good cause for disclosure.” The court stated that it would be looking for
anything that “would suggest . . . a compromise of the integrity of our voting process”
because that type of information is not privileged. The record shows that the court explained
that it would also evaluate each document to determine if it was the document as claimed,
if it was to a third party outside the department, and if the description of the document was
accurate. After performing the in camera inspection, the district court issued findings
determining that “[w]ith regard to executive privilege, none of the documents reviewed
contain information that would suggest the voting process in this state has been
compromised.” As a result, the court granted the State’s cross-motion for summary
judgment.
{29} We now turn to Plaintiffs’ points. Here, the documents redacted were
communications between executive personnel within the Office of the Governor, the T&RD,
and the MVD. Plaintiffs assert that the documents in question were not entitled to protection
because the documents were in the custody of the MVD—not the Governor’s office. The
T&RD is a cabinet department in the executive branch. NMSA 1978, § 9-11-4 (2005). The
10
MVD is a division of the T&RD. Section 9-11-4(D). The communications were from
employees of these executive departments. We do not address the document custody issue
because Plaintiffs have failed to cite authority to support the proposition that custody of a
document in one executive agency as opposed to another affects the analysis. See King,
2007-NMCA-130, ¶ 17 (declining to consider arguments unsupported by authority).
{30} Plaintiffs also argue that the privilege cannot be extended to communications other
than those relevant to the internal policy-making processes of the Governor’s office. In this
regard, Plaintiffs rely on In re Sealed Case, 121 F.3d 729, for their argument that the
privilege only applies to “high level” members of the executive branch, not to lower level
employees. Further, Plaintiffs assert that they have not located any case that “extends the
privilege broadly to any employee within an executive branch agency” as adopted by the
district court in this case.
{31} First, we observe that Plaintiffs’ argument appears to be based on the executive
communications arm of executive privilege—the language relied on by Plaintiffs refers to
this arm of the privilege, not the deliberative process sub-category. “‘[E]xecutive privilege’
is generally used to refer to a wide variety of evidentiary and substantive privileges that
courts accord the executive branch.” In re Sealed Case, 121 F.3d at 735 n.2. Two of the
arms of the privilege are the executive communications privilege and the deliberative
process privilege. Russell L. Weaver & James T.R. Jones, The Deliberative Process
Privilege, 54 Mo. L. Rev. 279, 284-91 (1989); see Warnock, supra, at 984 (discussing the
distinction between the two types of executive privilege).
{32} In First Judicial, our Supreme Court described executive privilege in general terms
and relied on cases dealing with both categories of the privilege. United States v. Nixon, 418
U.S. 683, 706, 712 (1974) (rejecting an absolute and unqualified executive communications
privilege and affirming the inspection of certain tape recordings and documents relating to
conversations between the President and his aides and advisors), superseded by rule as
stated in People v. Montoya, 753 P.2d 729 (Colo. 1988) (en banc); Carl Zeiss Stiftung v.
V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C. 1966) (dealing with “recommendations
and deliberations comprising part of a process by which governmental decisions and policies
are formulated”), aff’d, 384 F.2d 979 (D.C. Cir. 1967). The subject documents in First
Judicial consisted of material obtained by the attorney general from corrections officers and
other executive department personnel relating to the 1980 Penitentiary Riot. First Judicial,
96 N.M. at 258, 629 P.2d at 334. Although the public policy underpinnings of both types
of executive privilege are discussed in First Judicial, the type of privilege upon which the
case ultimately turned falls into the sub-category of the deliberative process privilege. See,
e.g., Michael N. Kennedy, Comment, Escaping The Fishbowl: A Proposal To Fortify The
Deliberative Process Privilege, 99 Nw. U. L. Rev. 1769, 1778 n.64 (2005) (listing New
Mexico as a state that has created a deliberative process privilege for state agencies).
Consequently, Plaintiffs’ arguments do not go to the type of privilege asserted in that case.
{33} Second, we question Plaintiffs’ legal premise. In evaluating documents pertaining
to White House counsel’s investigation of the Secretary of Agriculture, the court in In re
Sealed Case held that the executive communications privilege applied to communications
11
authored by White House counsel and other top presidential advisers who had “broad and
significant responsibility for investigating and formulating the advice to be given the
President on the particular matter to which the communications relate.” 121 F.3d at 758.
In addition, the court analyzed whether the privilege applied to documents authored by a
legal extern and to documents for which no author was listed. Id. Although the court
recognized that the legal extern “did not exercise broad and significant responsibility for the
. . . investigation, and therefore the documents authored by the legal extern do not, on their
own, qualify for the presidential privilege,” it nevertheless determined that the privilege
applied because the documents authored by the extern were created at the request of the two
associate White House counsel who did have broad and significant responsibility for the
investigation and were received by them. Id. Along the same lines, the three documents
with no author indicated were solicited and received by staff with the appropriate
responsibility. Id. It becomes clear that the application of the privilege does not turn solely
on the job level of the person creating the document. Thus, Plaintiffs’ argument is not
supported by the authority they cite.
{34} We further conclude that the State met its burden that on balance, the interests of the
public in keeping the documents confidential outweigh the interests of the Plaintiffs in
having them disclosed. The State based its argument on the premise that public disclosure
of certain communications would chill the open exchange of opinions and recommendations
between government officials and that the privilege is intended to protect the government’s
decision-making process, its consultative functions, and the quality of its decisions. The
documents redacted relate to the development of documents necessary for New Mexico’s
negotiations with the Mexican government regarding identification confirmation. They also
include discussions regarding how to deal with New Mexico drivers who applied for
licenses using documents the MVD was unable to confirm as well as discussions related to
the audit process. These materials were generated as part of the executive branch’s
development of policy concerning: (1) the future issuance of drivers’ licenses to
undocumented aliens; (2) how best to verify the documents provided to the MVD by those
aliens; and (3) how best to involve the Mexican government in that process in the future.
Accordingly, we conclude that the district court properly determined that executive
privilege was applicable in this case.
{35} Plaintiffs also complain that the district court’s broad application of the executive
privilege would render “virtually all communications and records generated by New Mexico
state agencies and departments subject to a claim of executive privilege,” thus allowing these
documents to be “[kept] secret from the public at the sole discretion of that department or
agency[] without any independent oversight or review.” This is not the case. As occurred
here, once the privilege is asserted, there is a process to evaluate whether that assertion is
proper under IPRA.
{36} In conclusion, we hold that the district court did not err in concluding that the
redactions carried out pursuant to executive privilege were proper. As described above, the
redacted information was properly withheld by the State and, thus, the State is entitled to
judgment as a matter of law on this issue.
12
D. Redactions Pursuant to Attorney-Client Privilege
{37} Section 14-2-1(A)(6) exempts from disclosure documents protected by the attorney-
client privilege. In its first argument as to this privilege, Plaintiffs claim that it is
inapplicable to the communications in question because “[a]n attorney for an agency . . . is
not also the personal attorney for each of the agencies employees” and the communications
in question “were sent in and among staff attorneys and management, while some
communication involved lower[-]level employees, for which there is not a privilege.”
{38} Plaintiffs devote less than a full page of their brief-in-chief to these contentions, fail
to cite authority, and do not specify to which communications their arguments refer. The
argument is not adequately developed or supported. As previously stated, we do not review
unclear or inadequately developed arguments or arguments for which no authority has been
cited. See King, 2007-NMCA-130, ¶ 17 (refusing to consider arguments unsupported by
authority or analysis); Headley, 2005-NMCA-045, ¶ 15 (stating that we will not review
unclear or undeveloped arguments).
{39} We now turn to Plaintiffs’ second argument. They cite Rule 11-511 NMRA, and
Gingrich v. Sandia Corporation, 2007-NMCA-101, 142 N.M. 359, 165 P.3d 1135, as
support for their assertion that “[the State] ha[s] waived any claim of attorney-client
privilege . . . by disclosing the information sought by the Plaintiffs to the media and others.”
Under Rule 11-511, the attorney-client privilege is waived where the holder of the privilege
“voluntarily discloses or consents to disclosure of any significant part of the matter or
communication.” As we demonstrate below, Plaintiffs have not shown that any of the
communications redacted pursuant to attorney-client privilege were disclosed.
{40} The following is a brief and general description of the documents redacted pursuant
to attorney-client privilege and their content: discussions between general counsel for the
Governor’s office and executive branch personnel regarding a proposed letter to officials in
the Mexican government describing the policies surrounding the issuance of drivers’ licenses
in New Mexico; discussions between executive branch officers and counsel for the T&RD
related to a potential audit of drivers who obtained their licenses by submitting an individual
tax identification number; discussions between counsel for the T&RD and MVD personnel
reviewing proposed drafts of letters to be sent to drivers who received New Mexico drivers’
licenses but whose documentation ultimately could not be verified; correspondence between
the MVD director and in-house counsel for the T&RD regarding specific statutes and
regulations governing the process under which an individual may obtain a driver’s license
in New Mexico; legal analysis performed by counsel for the T&RD for the benefit of the
directors of the MVD and T&RD; and communications directed to the Deputy Chief Counsel
for the Office of the Governor regarding the status of the audit on drivers who obtained their
licenses by submitting an individual tax identification number. Plaintiffs have failed to
direct us to any specific instance where any of the redacted documents were disclosed.
Accordingly, we conclude that the district court did not err in concluding that the redactions
made pursuant to attorney-client privilege were proper.
CONCLUSION
13
{41} Based on the foregoing, we affirm the district court’s order of summary judgment in
this case.
{42} IT IS SO ORDERED.
____________________________________
CELIA FOY CASTILLO, Judge
WE CONCUR:
___________________________________
CYNTHIA A. FRY, Chief Judge
___________________________________
MICHAEL D. BUSTAMANTE, Judge
Topic Index for Republican Party of N.M. v. N.M. Taxation & Rev. Dep't, Docket No.
28,292
AT ATTORNEYS
AT-AP Attorney-Client Privilege
CP CIVIL PROCEDURE
CP-SJ Summary Judgment
CT CONSTITUTIONAL LAW
CT-NM New Mexico Constitution, General
EV EVIDENCE
EV-AP Attorney-Client Privilege
EV-PV Privileges
GV GOVERNMENT
GV-EB Executive Branch
GV-EP Executive Privilege
GV-PR Public Records
ST STATUTES
ST-IP Interpretation
14