Tawater v. Bd of Comm'r for the Cnty. of Sandoval

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: _____________
3 Filing Date: May 10, 2023
4 No. A-1-CA-39724
5 TINA TAWATER,
6 Plaintiff-Appellant,
7 v.
8 BOARD OF COMMISSIONERS FOR
9 THE COUNTY OF SANDOVAL and
10 DIEGO TRUJILLO (in his official
11 capacity as records custodian),
12 Defendants-Appellees.
13 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
14 James A. Noel, District Court Judge
15 Grover Law, LLC
16 Thomas R. Grover
17 Albuquerque, NM
18 for Appellant
19 Law Office of Michael Dickman
20 Michael Dickman
21 Santa Fe, NM
22 for Appellee
1 OPINION
2 BUSTAMANTE, Judge, retired, sitting by designation.
3 {1} This case involves the Inspection of Public Records Act (IPRA), NMSA 1978,
4 §§ 14-2-1 to -12 (1947, as amended through 2023). Plaintiff Tina Tawater appeals
5 the district court’s order exempting three documents from inspection under IPRA.
6 Plaintiff argues the district court erred in determining that (1) all three documents
7 are subject to attorney-client privilege under Rule 11-503 NMRA, and are therefore
8 exempt from inspection under IPRA, Section 14-2-1(G); and (2) the third document
9 is exempt from inspection on the additional ground that it constitutes a letter or
10 memoranda that is a matter of opinion in personnel files, and therefore exempt from
11 inspection under IPRA, Section 14-2-1(C). 1 We reverse the district court’s
12 determination that attorney-client privilege exempts the first document from
13 inspection, but affirm the district court’s determination that the privilege exempts
14 the second and third documents from inspection. Because we conclude attorney-
15 client privilege exempts the third document from inspection, we do not reach the
1
Some sections of IPRA were amended in 2023, after Plaintiff’s request for
the documents at issue in this case. The exemption for “attorney-client privileged
information” was renumbered from Section 14-2-1(F) to 14-2-1(G) but is
substantively identical. The exemption for “letters or memoranda that are matters of
opinion in personnel files,” see § 14-2-1(C), is identical. Because the 2023
amendments do not impact this appeal, we cite the current codification of IPRA for
ease of reference.
1 district court’s determination that this document is also exempt from inspection,
2 pursuant to Section 14-2-1(C).
3 BACKGROUND
4 {2} In June 2019, Plaintiff submitted an IPRA request to the County of Sandoval
5 (the County) seeking to inspect certain records, including emails sent between the
6 County’s Public Information Officer and the County Manager concerning IPRA
7 lawsuits involving the County and the County’s processing of IPRA requests. The
8 County produced certain records but advised Plaintiff that certain records were
9 provided with portions redacted and that other responsive records were not disclosed
10 because they fell within IPRA’s exceptions for “attorney-client privileged
11 information,” or “letters or memoranda that are matters of opinion in personnel
12 files.” Section 14-2-1(C), (G).
13 {3} Plaintiff sued the Board of Commissioners for the County and Diego Trujillo
14 in his official capacity as records custodian (collectively, Defendants), claiming that
15 Defendants violated IPRA by denying her the opportunity to inspect records
16 responsive to her IPRA request. Defendants, in turn, filed an unopposed motion for
17 in camera review of the three documents withheld from Plaintiff that are at issue in
18 this appeal: (1) an email sent by the Public Information Officer to four recipients:
19 the County Manager, two attorneys for the County, and another County employee
20 on January 7, 2019 (the January 7 email); (2) an email sent by the Public Information
2
1 Officer to the County Manager on January 25, 2019 (the January 25 email); and (3)
2 an email sent by the Public Information Officer to the Chairman of the County’s
3 Board of Commissioners (the Chairman), and the County Manager on April 25, 2019
4 (the April 25 email).
5 {4} After reviewing the three emails in camera, the district court issued its order,
6 determining that each email is exempt from inspection under IPRA. The district
7 court concluded that all three emails are protected from disclosure by attorney-client
8 privilege and thus exempt from inspection pursuant to IPRA, Section 14-2-1. The
9 district court also concluded that the April 25 email is exempt from inspection on an
10 additional ground—under IPRA’s exception for letters or memoranda that are
11 matters of opinion in personnel files, pursuant to Section 14-2-1(C). Plaintiff
12 appeals.
13 DISCUSSION
14 {5} Plaintiff argues that the district court incorrectly determined that attorney-
15 client privilege protects the emails from disclosure. “Although questions concerning
16 discovery matters are generally reviewed for abuse of discretion, questions involving
17 . . . the application of a privilege are reviewed de novo.” Breen v. N.M. Tax’n &
18 Revenue Dep’t, 2012-NMCA-101, ¶ 21, 287 P.3d 379.
19 {6} IPRA provides that “[e]very person has a right to inspect public records of
20 this state.” Section 14-2-1. There are, however, exceptions; as relevant here, IPRA
3
1 exempts from inspection “attorney-client privileged information.” Section 14-2-
2 1(G); Republican Party of N.M. v. N.M. Tax’n & Revenue Dep’t, 2012-NMSC-026,
3 ¶ 16, 283 P.3d 853 (observing attorney-client privilege as one of the specific
4 exceptions to disclosure under IPRA).
5 {7} Rule 11-503, in turn, governs the scope of the attorney-client privilege in New
6 Mexico. Bhandari v. Artesia Gen. Hosp., 2014-NMCA-018, ¶ 11, 317 P.3d 856. The
7 rule states, in relevant part, that
8 B. A client has a privilege to refuse to disclose . . . a
9 confidential communication made for the purpose of facilitating or
10 providing professional legal services to that client,
11 (1) between the client and the client’s lawyer or
12 representative;
13 (2) between the client’s lawyer and the lawyer’s
14 representative;
15 (3) between the client or client’s lawyer and another
16 lawyer representing another in a matter of common interest;
17 (4) between representatives of the client or between the
18 client and a representative of the client; or
19 (5) between lawyers representing the client.
20 Rule 11-503(B). Accordingly, the elements of attorney-client privilege are “(1) a
21 communication (2) made in confidence (3) between privileged persons (4) for the
22 purpose of facilitating the attorney’s rendition of professional legal services to the
23 client.” Santa Fe Pac. Gold Corp. v. United Nuclear Corp., 2007-NMCA-133, ¶ 14,
4
1 143 N.M. 215, 175 P.3d 309. Plaintiff concedes that the three emails at issue
2 constitute communications, but argues that each email fails to meet one or more of
3 the remaining elements of the privilege. Based on our in camera review of these
4 communications, we conclude that attorney-client privilege exempts two of the three
5 emails from inspection under IPRA.
6 I. Attorney Client-Privilege Does Not Exempt the January 7 Email From
7 Inspection Under IPRA
8 {8} The January 7 email was sent by the Public Information Officer to four
9 recipients: the County Manager, two attorneys for the County, and another County
10 employee. The email’s subject line includes the phrase, “Attorney[-]Client
11 Privileged Communication,” and the body of the email discusses the Public
12 Information Officer’s handling of an IPRA request.
13 {9} Plaintiff argues attorney-client privilege does not exempt the January 7 email
14 from inspection under IPRA, contending that the communication was not intended
15 to secure legal advice. Defendants disagree, pointing out that the email’s subject line
16 states, “Attorney[-]Client Privileged Communication,” and that the recipients
17 included attorneys for the County.
18 {10} Attorney-client privileges requires that a communication be “made for the
19 purpose of facilitating or providing professional legal services to that client.” Rule
20 11-503(B); see Santa Fe Pac. Gold Corp., 2007-NMCA-133, ¶ 14 (internal
21 quotation marks and citation omitted). Our review shows that the January 7 email
5
1 was not made for this purpose, but rather to apprise its recipients of a decision, which
2 the Public Information Officer had previously made concerning an IPRA request,
3 and that this decision fell squarely within the scope of her regular duties. The content
4 of this email provides no indication that it was made for the purpose of acquiring
5 legal advice or necessary for the rendition of a legal opinion. See Santa Fe Pac. Gold
6 Corp., 2007-NMCA-133, ¶ 13 (“A client may claim attorney-client privilege . . . if
7 the communications were made for the purpose of acquiring legal advice for the
8 client.”); see also id. ¶ 23 (recognizing that a “communication between an attorney
9 and a client is not privileged unless it is necessary for the rendition of a legal opinion
10 or legal advice.” (internal quotation marks and citation omitted)).
11 {11} Defendants fail to persuade us otherwise. Defendants develop no argument
12 addressing the email’s purpose and provide no analysis of its content. Instead,
13 Defendants rely on the Public Information Officer designation of the email as
14 “Attorney[-]Client Privileged,” but this designation alone does not alter our
15 determination, based on our review of its content, regarding the email’s purpose. See
16 Bhandari, 2014-NMCA-018, ¶¶ 1, 19, 21 (concluding that a memorandum prepared
17 by a hospital’s general counsel, which bore the heading “confidential and subject to
18 attorney-client privilege” was not privileged based in part on an examination of the
19 memorandum’s content (alterations and internal quotation marks omitted)).
6
1 Attorney-client privilege does not exempt the January 7 email from inspection under
2 IPRA.
3 II. Attorney Client-Privilege Exempts the January 25 and April 25 Emails
4 From Inspection Under IPRA
5 {12} We start by summarizing these emails. The January 25 email was sent by the
6 Public Information Officer to the County Manager and summarizes conversations
7 between the Public Information Officer and attorneys for the County. The
8 conversations, as summarized in the email, relate to a lawsuit filed by Plaintiff
9 against the County, and include the attorneys’ interpretation of the scope of
10 Plaintiff’s IPRA request related to that lawsuit and direction to the Public
11 Information Officer relate to the request. This email also discusses the Public
12 Information Officer’s concerns with one attorney’s interpretation of the scope of
13 Plaintiff’s IPRA request and direction concerning that request.
14 {13} The April 25 email, sent by the Public Information Officer to the County
15 Manager and the Chairman, is similar. This email summarizes a conversation
16 between the Public Information Officer and attorneys for the County. The
17 conversation, as summarized in the email, addresses a pending lawsuit filed by
18 Plaintiff against the County, including how the County should respond to an
19 interrogatory relating to an IPRA request from Plaintiff, an attorney’s interpretation
20 of IPRA and assessment of the scope of Plaintiff’s IPRA request, and an attorney’s
21 direction to the Public Information Officer related to Plaintiff’s IPRA request. The
7
1 April 25 email also discusses the Public Information Officer’s concerns about an
2 attorney’s interpretation of IPRA.
3 {14} Plaintiff argues attorney-client privilege does exempt these emails from
4 inspection under IPRA. For the reasons that follow, we disagree.
5 {15} As discussed, the January 25 and April 25 emails summarize conversations
6 between the Public Information Officer and attorneys for the County. Plaintiff does
7 not dispute that the actual conversations, which address pending litigation and
8 contain legal advice and opinions, are protected by attorney-client privilege. See
9 Santa Fe Pac. Gold Corp, 2007-NMCA-133, ¶¶ 13, 23; Henry v. N.M. Livestock
10 Bd., ___-NMCA-___, ¶ 35, ___ P.3d ___ (A-1-CA-37758, Apr. 28, 2023)
11 (concluding that an attorney’s communications with agency line staff members can
12 be subject to attorney-client privilege). We must therefore determine whether
13 attorney-client privilege protects the Public Information Officer’s written summaries
14 of these privileged conversations relayed to the County Manager and the Chairman
15 in the January 25 and April 25 emails.
16 {16} Plaintiff argues these emails are not protected, contending they were neither
17 (1) between “privileged persons,” Santa Fe Pac. Gold Corp., 2007-NMCA-133,
18 ¶ 14, because they were not sent to or from a lawyer; nor (2) made for the purpose
19 of facilitating legal services. We review these arguments in turn.
8
1 {17} Contrary to Plaintiff’s first argument, the scope of the privilege is not limited
2 to communications between a client and lawyer, but also encompasses
3 communications “between representatives of the client.” Rule 11-503(B)(4); cf. Rule
4 11-503(B)(1). Plaintiff does not dispute that the client in this case is the County. See
5 Rule 11-503(A)(1) (defining “client” to include an “association, or other entity who
6 consults with, seeks advice from, or retains the professional services of a lawyer”).
7 Plaintiff also does not dispute that the parties to these emails—the County’s Public
8 Information Officer, the County Manager, and the Chairman—are “representatives”
9 of the County. See Rule 11-503(B)(4); see also Henry, ___-NMCA-___, ¶ 35
10 (concluding that attorney-client privilege can apply to communications with a
11 agency’s staff members). The January 25 and April 25 emails were therefore
12 “between privileged persons.” Santa Fe Pac. Gold Corp., 2007-NMCA-133, ¶ 14.
13 {18} As to Plaintiff’s second argument, we conclude that the January 25 and April
14 25 emails, which summarize privileged conversations, were “made for the purpose
15 of facilitating or providing professional legal services to that client.” Rule 11-
16 503(B); see Santa Fe Pac. Gold Corp., 2007-NMCA-133, ¶ 14. Our conclusion is
17 based on the language of Rule11-503 and the purpose of the privilege.
18 {19} As discussed, Rule 11-503(A)(1) defines “client” to include a “corporation,
19 association, or other entity,” and protects certain communications “between
20 representatives of the client.” Rule 11-503(B)(4). This language indicates that the
9
1 rule’s drafters contemplated that the privilege could apply in an organizational
2 context, in which it might not be feasible for an attorney to directly provide
3 privileged legal advice to all representatives of the organization who can act on it.
4 See Henry, ___-NMCA-___, ¶ 33 (recognizing that in the corporate context the
5 privilege exists, in part, “to protect . . . the giving of professional advice to those
6 who can act on it” (omission in original) (quoting Upjohn Co. v. United States, 449
7 U.S. 383, 390 (1981)); see also Rule 11-503(A)(4) (“[A] communication is
8 ‘confidential’ if made privately and not intended for further disclosure except to
9 other persons in furtherance of the purpose of the communication.” (emphasis
10 added)). Thus, in an organizational context, the rule’s language and rationale
11 indicate that the privilege can extend to the relaying of privileged legal advice
12 between representatives of an organizational client who can act on that advice. See
13 Rule 11-503(A)(1), (B)(4); Henry, ___-NMCA-___, ¶ 33.
14 {20} This interpretation is supported by “the purpose of the privilege, which is to
15 encourage the free flow of information between attorney and client.” Santa Fe Pac.
16 Gold Corp., 2007-NMCA-133, ¶ 18; see id. ¶ 5 (“The purpose of the privilege . . .
17 provides the guiding principle in determining whether a communication is
18 protected.” (citation omitted)). Protecting such derivative communications in an
19 organizational context encourages the free flow of privileged legal advice to those
20 representatives of the organizational client in a position to act on it.
10
1 {21} Based on the foregoing, we conclude that a communication relaying
2 privileged legal advice between representatives of an organizational client who can
3 act on that advice qualifies as being “made for the purpose of facilitating or
4 providing professional legal services to that client.” Rule 11-503(B); see Henry, ___-
5 NMCA-___, ¶¶ 15, 33. We now consider whether the January 25 and April 25 emails
6 meet this standard.
7 {22} As discussed, these emails summarize privileged conversations containing
8 legal advice related to pending litigation against the County and relay this privileged
9 advice between representatives of the County. And we are satisfied that, under the
10 circumstances of this case, the representatives of the County included on these
11 emails—the Public Information Officer, the County Manager, and the Chairman—
12 were in positions to act on the legal advice summarized in these communications
13 relating to a pending lawsuit against the County. We therefore conclude that the
14 January 25 and April 25 emails were “made for the purpose of facilitating or
15 providing professional legal services to that client.” Rule 11-503(B). Moreover,
16 considering that the Public Information Officer relayed these emails only to
17 representatives of the County in positions to act on the privileged advice summarized
18 therein, and in light of Plaintiff’s failure to develop an argument addressing whether
19 the January 25 and April 25 emails were “made in confidence,” see Santa Fe Pac.
20 Gold Corp., 2007-NMCA-133, ¶ 14, we likewise conclude these communications
11
1 were “confidential.” See Rule 11-503(A)(4) (providing that “a communication is
2 ‘confidential’ if made privately and not intended for further disclosure except to
3 other persons in furtherance of the purpose of the communication” (emphasis
4 added)); see also Corona v. Corona, 2014-NMCA-071, ¶ 26, 329 P.3d 701 (“The
5 appellate court presumes that the district court is correct, and the burden is on the
6 appellant to clearly demonstrate that the district court erred.”).
7 {23} To the extent the January 25 and April 25 emails also contain discussions and
8 concerns about the privileged legal advice summarized therein, this material does
9 not alter our conclusion that the emails were made for the purpose of facilitating or
10 providing professional legal advice to the County. To begin, our review indicates
11 that it would be difficult to reveal this material without also revealing the substance
12 of the privileged legal advice summarized in these emails. Moreover, “[t]he purpose
13 of the privilege, to encourage full and frank communication between a client and its
14 attorney,” Santa Fe Pac. Gold Corp, 2007-NMCA-133, ¶ 25, is served by protecting
15 the discussion of privileged legal advice which accompanies the sharing of that
16 advice. Here, sharing privileged legal advice and concerns about that advice with the
17 County Manager, the Chairman, and the Public Information Officer made available
18 to the County leadership the information needed to engage in full and frank
19 discussion about that advice with attorneys for the County.
12
1 {24} In sum, attorney-client privilege exempts the January 25 and April 25 emails
2 from inspection under IPRA. Because attorney-client privilege exempts the April 25
3 email from inspection, we need not reach Plaintiff’s argument that the district court
4 erred in exempting this email from inspection on the additional ground that it falls
5 within IPRA’s exception for “letters or memoranda that are matters of opinion in
6 personnel files.” Section 14-2-1(C); see Crutchfield v. N.M. Dep’t of Tax’n &
7 Revenue, 2005-NMCA-022, ¶ 36, 137 N.M. 26, 106 P.3d 1273 (“A reviewing court
8 generally does not decide academic or moot questions.”).
9 CONCLUSION
10 {25} We reverse the district court’s determination that attorney-client privilege
11 exempts the January 7 email from inspection under IPRA, and remand this matter
12 for further proceedings consistent with this opinion. We affirm the district court’s
13 determination that the privilege exempts the January 25 and April 25 emails from
14 inspection.
15 {26} IT IS SO ORDERED.
16 ____________________________________
17 MICHAEL D. BUSTAMANTE, Judge,
18 retired, sitting by designation.
13
1 WE CONCUR:
2 ________________________________
3 JACQUELINE R. MEDINA, Judge
4 ________________________________
5 ZACHARY A. IVES, Judge
14