Republican Party v. New Mexico Taxation & Revenue Department

I attest to the accuracy and

integrity of this document

New Mexico Compilation

Commission, Santa Fe, NM

'00'04- 10:01:07 2012.09.04

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMSC-026

Filing Date: June 28, 2012

Docket No. 32,524

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-Petitioners,

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 Vehicle Division,

Defendants-Respondents.

ORIGINAL PROCEEDING ON CERTIORARI

Valerie A. Mackie Huling and Nan G. Nash, District Judges

Bowles and Crow

Jason Bowles

B.J. Crow

Albuquerque, NM

Peifer, Hanson & Mullins, P.A.

Charles R. Peifer

Lauren Keefe

Albuquerque, NM

for Petitioners

Long, Pound & Komer, P.A.

John B. Pound

Mark T. Baker

Jennifer A. Attrep

Santa Fe, NM

Jessica M. Hernandez

1

General Counsel for the Office of the Governor

Santa Fe, NM

for Respondents

Luebben Johnson & Barnhouse, L.L.P.

Dolph Barnhouse

Los Ranchos de Albuquerque, NM

for Amicus Curiae New Mexico Foundation for Open Government

OPINION

SERNA, Justice.

{1} “All political power is vested in and derived from the people: all government of right

originates with the people, is founded upon their will and is instituted solely for their good.”

N.M. Const. art. II, § 2. The co-equal branches of the government of the State of New

Mexico, N.M. Const. art. III, § 1, like those of the United States of America, are expressly

limited to the exercise of powers delegated to them by our citizens. Our democratic system

of government necessarily “assumes the existence of an informed citizenry. . . . Without

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.” Houchins v. KQED, Inc., 438 U.S. 1, 31-32 (1978) (Stevens, J., dissenting). To

give practical effect to this principle, our Legislature enacted the Inspection of Public

Records Act, NMSA 1978, §§ 14-2-1 to -12 (1947, as amended through 2011) (IPRA).

“Recognizing that a representative government is dependent upon an informed electorate,”

the Legislature declared “that all persons are entitled to the greatest possible information

regarding the affairs of government.” Id. § 14-2-5.

{2} Although the public’s right to access information concerning the inner workings of

its government is considerable, it is not without limit. Under the New Mexico Constitution,

the people delegate certain duties to elected officials, particularly the Governor, in whom is

vested the “supreme executive power of the state.” N.M. Const. art. V, § 4. Our constitution

and laws recognize that under certain circumstances the Governor is entitled to a limited

degree of privilege—that is, protection from public disclosure—in the course of performing

his or her duties.

{3} This appeal, our first occasion to consider executive privilege in the context of a

public records request, presents a conflict between these two important principles.

Petitioners Republican Party of New Mexico and Lyn Ott, individually and as the Director

of the Help America Vote Act for the Republican Party (collectively, Petitioners), requested

certain government documents. Respondents New Mexico Taxation and Revenue

Department, Motor Vehicle Division, and Luis Carrasco, Custodian of Records (collectively,

Respondents) withheld some of those documents on several grounds, including executive

privilege. While recognition of some form of executive privilege “is required by the

2

Constitution of the State of New Mexico,” State ex rel. Att’y Gen. v. First Judicial Dist.

Court, 96 N.M. 254, 257, 629 P.2d 330, 333 (1981), it falls on this Court to delineate under

what circumstances the executive may properly invoke that privilege pursuant to IPRA. See

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“It is . . . the province and duty of

the judicial department to say what the law is.”).

I. BACKGROUND

{4} Petitioner Ott filed an IPRA request with the Motor Vehicles Division (MVD), a

division of the Taxation and Revenue Department, after she read an Associated Press article

about then-Governor Bill Richardson’s executive order directing the MVD to require two

forms of identification before issuing a driver’s license to any foreign national. With the

stated aim of investigating whether individuals were using New Mexico drivers’ licenses to

unlawfully register to vote, Ott requested documents relating to the issuance of drivers’

licenses to foreign nationals, including documents reflecting the number of such licenses

issued, as well as documents relating to an audit of the license program ordered by Governor

Richardson. Respondents complied with the request by mailing Ott 150 pages of material,

including emails and spreadsheets, but indicated in an accompanying cover letter that certain

information had been redacted pursuant to attorney-client privilege and executive privilege,

as well as the federal Driver Privacy Protection Act, 18 U.S.C. §§ 2721-2725 (1994, as

amended through 2000) (DPPA) and its state analogue, NMSA 1978, § 66-2-7.1 (2007)

(NMDPPA) (collectively, Privacy Acts), which prohibit the disclosure of private information

related to drivers’ licenses. Ott appealed directly to the Taxation and Revenue Department,

requesting unredacted versions of the documents. Respondents did not send the requested

unredacted documents but provided redacted copies of additional responsive documents.

{5} Petitioners filed suit in the Second Judicial District Court to compel Respondents to

release the documents in unredacted form. Both parties filed motions for summary

judgment. Petitioners asserted that executive privilege was inapplicable, and that disclosure

was required under a research exception to the Privacy Acts.1 Respondents argued that all

documents were properly redacted. The district court consolidated the motions and held a

hearing on the applicability of the Privacy Acts, executive privilege, and attorney-client

privilege to the documents at issue. The district court granted Respondents’ motion for

summary judgment in part, concluding that private identifying information was properly

redacted pursuant to the Privacy Acts. After conducting an in camera review of the

documents redacted on privilege grounds, the district court concluded that both the attorney-

client and executive privileges were properly invoked and not overcome by Petitioners’

showing of need. Petitioners filed a motion for reconsideration which the district court

denied.

1

This Opinion addresses only the existence and scope of executive privilege.

Although the parties also briefed and argued the application of the Privacy Acts, for reasons

explained below we decline to consider that issue. That portion of the Court of Appeals’

opinion addressing the Privacy Acts, therefore, is not affected by our resolution of this

appeal.

3

{6} Petitioners appealed to the Court of Appeals. The Court of Appeals affirmed the

district court’s grant of summary judgment regarding the Privacy Act redactions.

Republican Party of N.M. v. N.M. Dep’t of Tax. & Rev., 2010-NMCA-080, ¶¶ 14-16, 148

N.M. 877, 242 P.3d 444. The Court of Appeals determined that the resolution of the appeal

would depend on the applicability of the deliberative process privilege, id. ¶ 32, which the

court characterized as “protect[ing] the government’s decision-making process,” id. ¶ 34.

The court then concluded that the deliberative process privilege shielded the documents at

issue from disclosure. Id. ¶¶ 34-36. The court also held that Respondents properly invoked

attorney-client privilege to withhold certain documents. Id. ¶ 40.

{7} Petitioners then petitioned this Court for certiorari, which we granted to review

Respondents’ redactions pursuant to the Privacy Acts and executive privilege. Amicus New

Mexico Foundation for Open Government joined Petitioners in requesting that this Court

reverse the Court of Appeals’ ruling on executive privilege and the Privacy Acts. Petitioners

did not seek this Court’s review over the Court of Appeals’ upholding of redactions made

on the basis of attorney-client privilege. Eight documents thus remained at issue, six of

which Respondents had redacted pursuant to claims of executive privilege, and two of which

they had redacted pursuant to the Privacy Acts. The documents redacted on the grounds of

executive privilege included communications regarding New Mexico’s negotiations with the

Mexican government regarding access to certain identity documents, and discussions related

to implementing the audit of the driver’s license program. See Republican Party, 2010-

NMCA-080, ¶ 26.

II. MOOTNESS

{8} Events occurring since this Court granted certiorari require a close look at whether

we may exercise jurisdiction over this appeal. See Smith v. City of Santa Fe,

2007-NMSC-055, ¶ 10, 142 N.M. 786, 171 P.3d 300 (“[I]t is incumbent upon the appellate

court to raise jurisdiction questions sua sponte when the Court notices them.”). Shortly after

taking office, Governor Susana Martinez issued Executive Order 2011-003, entitled

“Limiting the Claim of Executive Privilege to Promote Transparency and Open

Government.” This order states that executive privilege “can only be invoked with written

authorization from the Office of the Governor,” and may be invoked to shield from

disclosure certain “communications between or among the Governor, a Cabinet Secretary,

an agency head or any of their high-level advisors.” In addition, subsequent to our grant of

certiorari, the parties filed a joint motion to approve a settlement that would permit all

documents requested to be transferred to the Secretary of State rather than to Petitioners, and

would require this Court to vacate the Court of Appeals’ opinion. We denied that motion.

{9} At oral argument, the parties stated that they now agreed that executive privilege did

not protect the remaining documents from disclosure. Respondents also indicated that the

current administration would not have invoked executive privilege in the first instance with

respect to the disputed documents. While we acknowledge and commend the efforts of the

parties to resolve their dispute, it is for this Court to decide whether the case is moot and

whether we retain jurisdiction to issue an opinion.

4

{10} “As a general rule, this Court does not decide moot cases.” Gunaji v. Macias, 2001-

NMSC-028, ¶ 9, 130 N.M. 734, 31 P.3d 1008. When no actual controversy exists for which

a ruling by the court will grant relief, an appeal is moot and ordinarily should be dismissed.

Id. In New Mexico, however, courts recognize two exceptions to the prohibition on deciding

moot cases: cases which present issues of substantial public interest, and cases “which are

capable of repetition yet evade review.” Id. ¶ 10. A case presents an issue of substantial

public interest if it involves a constitutional question or affects a fundamental right such as

voting. See Garcia v. Dorsey, 2006-NMSC-052, ¶ 17, 140 N.M. 746, 149 P.3d 62

(procedural due process); Cobb v. State Canvassing Bd., 2006-NMSC-034, ¶¶ 24-28, 140

N.M. 77, 140 P.3d 498 (Election Code); Gunaji, 2001-NMSC-028, ¶ 10 (election contest);

Mowrer v. Rusk, 95 N.M. 48, 52, 618 P.2d 886, 890 (1980) (separation of powers); see also

State ex rel. Newsome v. Alarid, 90 N.M. 790, 793, 568 P.2d 1236, 1239 (1977) (describing

“the right to inspect public documents” as an issue of public importance). An issue is

“capable of repetition” yet evading review if the issue is likely to arise in a future lawsuit,

regardless of the identity of the parties. Gunaji, 2001-NMSC-028, ¶ 11; see also Cobb,

2006-NMSC-034, ¶¶ 29-32 (time frame of election); Howell v. Heim, 118 N.M. 500, 503,

882 P.2d 541, 544 (1994) (budget crisis). The Court’s review of moot cases that either raise

an issue of substantial public interest or are capable of repetition yet evading review is

discretionary. See Cobb, 2006-NMSC-034, ¶ 14 (noting that the Court “may review moot

cases” that fall within either of the two exceptions).

{11} While this case is arguably moot, as the Secretary of State has by now received from

the MVD at least a portion of the documents sought by Petitioners and has undertaken the

task Petitioners had asserted they were intending to perform upon receipt of those

documents, the substantial public interest exception to the mootness doctrine compels the

issuance of an opinion in this appeal. We conclude that the scope of the Governor’s

executive privilege is an issue of substantial public interest and therefore address the issue

de novo, even though the documents that originally gave rise to the lawsuit underlying this

appeal are no longer in dispute. See Mowrer, 95 N.M. at 52, 618 P.2d at 890 (“The

parameters of the separation of powers doctrine presents a recurring problem of great public

interest.”); Pub. Serv. Co. of N.M. v. Lyons, 2000-NMCA-077, ¶ 10, 129 N.M. 487, 10 P.3d

166 (stating that questions of privilege are reviewed de novo). We will not, however,

address the issue of withholding information under the Privacy Acts, as that issue does not

here rise to the requisite level of public interest to permit an exception to the mootness

doctrine.

III. DISCUSSION

A. Exceptions to Disclosure Under IPRA

{12} Our Legislature enacted IPRA to promote the goal of transparency in our state

government:

Recognizing that a representative government is dependent upon an

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informed electorate, the intent of the legislature in enacting the Inspection of

Public Records Act is to ensure, and it is declared to be the public policy of

this state, that all persons are entitled to the greatest possible information

regarding the affairs of government and the official acts of public officers

and employees.

Section 14-2-5. “IPRA is intended to ensure that the public servants of New Mexico remain

accountable to the people they serve.” San Juan Agric. Water Users Ass’n v. KNME-TV,

2011-NMSC-011, ¶ 16, 150 N.M. 64, 257 P.3d 884. “The citizen’s right to know is the rule

and secrecy is the exception.” Newsome, 90 N.M. at 797, 568 P.2d at 1243.

{13} Under IPRA, “[e]very person has a right to inspect public records,” § 14-2-1(A), by

making a request pursuant to the procedures set forth in Section 14-2-8. This right is limited

only by the Legislature’s enumeration of certain categories of records that are excepted from

inspection. See Section 14-2-1(A)(1) to (7) (inter alia, attorney-client privileged

information, law enforcement records that reveal confidential sources, and governmental

emergency response plans).2 In addition to the specifically enumerated exceptions, records

may be excepted from inspection under IPRA “as otherwise provided by law.” Id. § 14-2-

1(A)(8). This “catch-all” exception includes statutory and regulatory bars to disclosure, such

as the Privacy Acts. See City of Las Cruces v. Pub. Emp. Labor Relations Bd., 1996-NMSC-

024, 121 N.M. 688, 690-91, 917 P.2d 451, 453-54. The “catch-all” exception also includes

constitutionally mandated privileges, as recognized by the parties and the Court of Appeals,

Republican Party, 2010-NMCA-080, ¶ 24, as well as privileges established by our rules of

evidence, Estate of Romero v. City of Santa Fe, 2006-NMSC-028, ¶ 7, 139 N.M. 671, 137

P.3d 611; see also Rule 11-501 NMRA (limiting privileges that may be asserted to those

grounded in the constitution, the rules of evidence, and other rules adopted by the Court).

Although courts may use common law principles when interpreting IPRA, see San Juan

Agric. Water Users Ass’n, 2011-NMSC-011, ¶ 20, this does not mean common law

privileges provide a valid basis for withholding documents from public scrutiny when we

do not otherwise recognize such privileges in our courts of law or by statute, see Estate of

Romero, 2006-NMSC-028, ¶ 11; First Judicial, 96 N.M. at 257, 629 P.2d at 333. Without

proof of the Legislature’s intent to the contrary, we do not construe IPRA to contemplate

privileges not applicable elsewhere in our state government.

{14} In order to determine whether an exception not specifically identified in IPRA

2

After the parties submitted briefing and presented oral arguments in this appeal, the

Legislature amended IPRA, reducing the number of enumerated exceptions from eleven to

seven. 2011 N.M. Laws, ch. 134, § 2. The Court of Appeals’ opinion refers to the “as

otherwise provided by law” provision under its former subsection, Section 14-2-1(A)(12).

Republican Party, 2010-NMCA-080, ¶ 24. The exceptions removed by the amendment

concerned records regarding applicants for university presidencies and certain veterans’

discharge papers, and therefore are not relevant to this appeal.

6

shielded the documents at issue from disclosure, the Court of Appeals applied the “rule of

reason,” Republican Party, 2010-NMCA-080, ¶ 24, an approach we introduced in Newsome,

90 N.M. at 797, 568 P.2d at 1243; see also Cox v. N.M. Dep’t of Public Safety, 2010-

NMCA-096, ¶ 7, 148 N.M. 934, 242 P.3d 501. The plaintiff in Newsome was a reporter for

the University of New Mexico Daily Lobo who sought access to university personnel

records. 90 N.M. at 792, 568 P.2d at 1238. When the university denied him access to some

of the records, the plaintiff filed suit under the then-existing version of IPRA, which shielded

from disclosure only the first three specific categories of documents exempted

today—medical records of institutionalized individuals, certain letters of reference, and

documents expressing matters of opinion in personnel or student files—and “as otherwise

provided by law.” Id. at 793-94, 568 P.2d at 1239-40 (citing NMSA 1953, § 71-5-1 (Supp.

1975)). The university withheld some of the disputed records on the basis of enumerated

exceptions. Id. at 792, 568 P.2d at 1238. Other documents, the university contended, while

not specifically exempted from disclosure by IPRA were “of a personal or sensitive nature

. . . that, for reasons of public policy, should be kept confidential and not be subject to

disclosure.” Id. at 794, 568 P.2d at 1240. Acknowledging that no New Mexico court at that

time had “face[d] this issue squarely,” id., Newsome reviewed caselaw from other states and

concluded that the list of enumerated exceptions to public records disclosure should not be

treated as exhaustive. Id. at 794-97, 568 P.2d at 1240-43. Newsome cited approvingly to

a California Supreme Court case which held that the public’s right to access government

records is “not absolute, but [is] subject to an implied rule of reason” by which a court can

create additional exceptions to disclosure. Id. at 797, 568 P.2d at 1243 (quoting Bruce v.

Gregory, 423 P.2d 193, 199 (Cal. 1967)).

{15} Following Bruce and other cases, Newsome adopted an approach whereby courts

determine whether records not specifically exempted by IPRA nonetheless should be

withheld from the requester on the grounds that disclosure “would not be in the public

interest.” 90 N.M. at 798, 568 P.2d at 1244. Newsome stated that

[i]t would be helpful to the courts for the Legislature to delineate what

records are subject to public inspection and those that should be kept

confidential in the public interest. Until the Legislature gives us direction in

this regard, the courts will have to apply the “rule of reason” to each claim

for public inspection as they arise.

Id. at 797, 568 P.2d at 1243.

{16} The Legislature has since responded to the Court’s request, obviating any need that

existed for application of the “rule of reason,” by enumerating specific exceptions to

disclosure, including attorney-client privilege, § 14-2-1(A)(6), and maintaining the exception

“as otherwise provided by law,” § 14-2-1(A)(8). Accordingly, courts now should restrict

their analysis to whether disclosure under IPRA may be withheld because of a specific

exception contained within IPRA, or statutory or regulatory exceptions, or privileges

adopted by this Court or grounded in the constitution. Therefore, cases applying the “rule

7

of reason” to all of the exceptions enumerated by the Legislature are overruled to the extent

they conflict with this Opinion. See, e.g., City of Farmington v. The Daily Times, 2009-

NMCA-057, ¶ 8, 146 N.M. 349, 210 P.3d 246; Bd. of Comm’rs of Doña Ana Cnty. v. Las

Cruces Sun-News, 2003-NMCA-102, ¶ 11, 134 N.M. 283, 76 P.3d 36.

B. Executive Privilege

{17} Executive privilege is a broad term used to define the many asserted justifications

for nondisclosure by the executive branch of the government to its co-equal branches and

to the public. See In re Sealed Case, 121 F.3d 729, 736-37 (D.C. Cir. 1997) (“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.”); see

generally EEOC v. Los Alamos Constructors, Inc., 382 F. Supp. 1373, 1375-83 (D.N.M.

1974) (providing a thorough survey of cases discussing assertions of executive privilege

from the presidencies of Washington through Nixon); Gerald Wetlaufer, Justifying Secrecy:

An Objection to the General Deliberative Privilege, 65 Ind. L.J. 845, 845 n.3 (1990)

(identifying the various subspecies of privilege that have been invoked by the executive

branch). We now review the development of executive privilege in the federal courts, then

inquire how other states have addressed the privilege, and conclude by determining the

contours of the privilege that the Governor may assert pursuant to our state constitution.

1. Executive Privilege in the Federal Courts

{18} Federal courts have long recognized that the President of the United States, the

nation’s executive, may withhold military and state secrets. See Gen. Dynamics Corp. v.

United States, ___ U.S. ___, ___, 131 S. Ct. 1900, 1905 (2011) (“We have recognized the

sometimes-compelling necessity of governmental secrecy by acknowledging a Government

privilege against court-ordered disclosure of state and military secrets.”); see also United

States v. Nixon, 418 U.S. at 683, 710-11 (1974). Federal courts also have permitted the

executive to withhold information about government informants and pending investigations

under some circumstances. See In re Sealed Case, 121 F.3d at 736-37. The two categories

of federal executive privilege that are of “primary” importance to this appeal, though, are the

presidential communications privilege and the deliberative process privilege. Republican

Party, 2010-NMCA-080, ¶ 18.

a. Presidential Communications Privilege

{19} The United States Court of Appeals for the District of Columbia Circuit has

succinctly described the difference between the presidential communications privilege and

the deliberative process privilege:

While the presidential communications privilege and the deliberative

process privilege are closely affiliated, the two privileges are distinct and

8

have different scopes. Both are executive privileges designed to protect

executive branch decisionmaking, but one applies to decisionmaking of

executive officials generally, the other specifically to decisionmaking of the

President. The presidential privilege is rooted in constitutional separation of

powers principles and the President’s unique constitutional role; the

deliberative process privilege is primarily a common law privilege. . . .

In addition, unlike the deliberative process privilege, the presidential

communications privilege applies to documents in their entirety, and covers

final and post-decisional materials as well as pre-deliberative ones.

In re Sealed Case, 121 F.3d at 745 (citations omitted).

{20} The presidential communications privilege was explicitly established by the United

States Supreme Court in Nixon, 418 U.S. 683. In that case, President Nixon argued that he

was not required to comply with a subpoena from the Watergate special prosecutor. Id. at

687-88. The Court agreed that communications between certain high-level advisers and the

President are presumptively privileged because “[a] President and those who assist him must

be free to explore alternatives in the process of shaping policies and making decisions and

to do so in a way many would be unwilling to express except privately.” Id. at 708. The

Court found such protection from public scrutiny to be justified in part by the “unique role”

of the President under the United States Constitution, including the President’s authority to

conduct foreign affairs. Id. at 715-16. This privilege, the Court determined, “is fundamental

to the operation of Government and inextricably rooted in the separation of powers under

the Constitution.” Id. at 708. The same concern for separation of powers, however, required

the Court to reject “an absolute, unqualified privilege” which would impair “the primary

constitutional duty of the Judicial Branch to do justice in criminal prosecutions.” Id. at 707.

In Nixon, the Court concluded that the assertion of executive privilege “cannot prevail over

the fundamental demands of due process of law in the fair administration of criminal justice.

The generalized assertion of privilege must yield to the demonstrated, specific need for

evidence in a pending criminal trial.” Id. at 713; see also Nixon v. Adm’r of Gen. Servs., 433

U.S. 425, 448-49 (1977) (holding that a former President could also invoke the

communications privilege, but that such a claim is given less weight than a claim of privilege

asserted by a sitting President).

{21} Two cases from the federal circuit court for the District of Columbia are instructive

in considering the parameters of the presidential communications privilege. In re Sealed

Case involved a subpoena duces tecum served on the White House Counsel by a grand jury

that was investigating a cabinet secretary. 121 F.3d at 734-35. The White House identified

responsive documents, producing some and withholding others, originally on the stated basis

of the deliberative process privilege. Id. at 735. After the Office of the Independent Counsel

moved to compel production, id. at 734-36, the White House later additionally invoked the

presidential communications privilege with respect to the withheld documents, id. at 735 &

n.2. In re Sealed Case reaffirmed that in Nixon “the existence of the presidential

9

[communications] privilege was definitively established as a necessary derivation from the

President’s constitutional status in a separation of powers regime.” Id. at 739-40. The court

then proceeded to consider the President’s invocation of the presidential communications

privilege in the case at hand. Id. at 740. President Clinton had not viewed any of the reports

or drafts for which the executive privilege was being asserted. Id. at 746. Noting that Nixon

did not clarify whether the privilege applied only to communications directly with the

President, or also included communications with advisers who assisted the President in

making policy decisions, id. at 747, the court reviewed the reasons in favor of both a narrow

and a broad construction of the privilege. A concern for separation of powers supported

restricting the privilege to communications that directly included the President, as “the

Constitution assigns [Article II] responsibilities to the President alone, arguably the privilege

of confidentiality that derives from them also should be the President’s alone.” Id. at 748.

A narrow construction of the privilege would also facilitate open government, especially

“where the public’s ability to know how its government is being conducted is at stake.” Id.

at 749.

{22} The court concluded, however, that the “arguments for a limited extension of the

privilege beyond the President to his immediate advisors [are] more convincing.” Id.

Stating that “pre-decisional documents are usually highly revealing as to the evolution of

advisers’ positions and as the different policy options considered along the way,” In re

Sealed Case concluded that such documents should be covered by the presidential

communications privilege because “[i]f these materials are not protected by the presidential

privilege, the President’s access to candid and informed advice could well be significantly

circumscribed.” Id. at 750.

{23} Although concluding that the presidential communications privilege extended beyond

communications made directly to the President, In re Sealed Case was careful not to

interpret the privilege too broadly. “[T]he privilege should apply only to communications

authored or solicited and received by those members of an immediate White House advisor’s

staff who have broad and significant responsibility for investigating and formulating the

advice to be given to the President on the particular matter to which the communications

relate.” Id. at 752. The court then determined under this standard that the privilege applied

to documents authored by the White House counsel, deputy counsel, chief of staff, and press

secretary, notes at meetings attended by these advisers, documents prepared by associate

counsel, and a memo prepared by a legal intern at the direction of counsel. Id. at 758.

Ultimately, however, the court concluded that although these documents fell under the

privilege, the Office of the Independent Counsel demonstrated sufficient need to overcome

the assertion of privilege in most instances, and therefore the court of appeals remanded to

the district court for further review. Id. at 762.

{24} Another instructive case, Judicial Watch, Inc. v. Department of Justice, confirmed

the narrow scope of the presidential communications privilege in the context of a Freedom

10

of Information Act (FOIA)3 request for documents relating to the President’s exercise of his

pardon power. 365 F.3d 1108, 1109-10 (D.C. Cir. 2004). The court of appeals refused to

extend the presidential communications privilege to all officials whose duties included

preparing documents for use in advising the President on the exercise of his pardon power.

The Judicial Watch court relied on In re Sealed Case in reaching the conclusion that “the

presidential communications privilege applies only to those pardon documents ‘solicited and

received’ by the President or his immediate White House advisers who have ‘broad and

significant responsibility for investigating and formulating the advice to be given the

President.’” Id. at 1114 (quoting In re Sealed Case, 121 F.3d at 752) (emphases added).

{25} Judicial Watch stated, correctly in our view, that “the demands of the privilege

become more attenuated the further away the advisers are from the President operationally.”

365 F.3d at 1115. Judicial Watch determined that the privilege did not apply to documents

obtained from other agencies, particularly when they were never submitted to the Office of

the President, because “the same confidentiality and candor concerns calling for application

of the presidential communications privilege in [the Nixon cases] and In re Sealed Case do

not apply as forcefully.” Id. As a result, the court held that internal agency documents were

not protected by the presidential communications privilege. Id. at 1118. “Extending the

presidential communications privilege to cover such internal Department documents would

be both contrary to executive privilege precedent and considerably undermine the purposed

of FOIA to foster openness and accountability in government.” Id. The pardon attorney, a

Department of Justice official who “is at least twice removed from the President,” was not

permitted to invoke the presidential communications privilege, id. at 1120, nor were the

deputy attorney general or his staff, id. at 1121. Extension of the privilege to such

individuals who were not close advisers of the President, “with the attendant implication for

expansion to other Cabinet officers and their staffs, would . . . ‘pose a significant risk of

expanding to a large swath of the executive branch a privilege that is bottomed on a

recognition of the unique role of the President.’” Id. (quoting In re Sealed Case, 121 F.3d

at 752).

b. Deliberative Process Privilege

{26} Unlike the presidential communications privilege, which is “rooted in constitutional

separation of powers principles and the President’s unique constitutional role,” In re Sealed

Case, 121 F.3d at 745, the deliberative process privilege is a creation of the common law and

is invoked primarily by executive agencies. Id. at 737. The deliberative process privilege

has been developed with the stated purpose of protecting the “frank and open discussions of

ideas” and “the confidentiality of the give-and-take that occurs among agency members in

3

FOIA, 5 U.S.C. § 552(a) (1966, as amended through 2009), the federal analogue

to IPRA, “requires federal agencies to make Government records available to the public”

upon request, subject to enumerated exceptions. Milner v. Dep’t of the Navy, ___ U.S. ___,

___, 131 S. Ct. 1259, 1261-62 (2011).

11

the formulation of policy.” Nat’l Wildlife Fed’n v. U.S. Forest Serv., 861 F.2d 1114, 1117

(9th Cir. 1988). Unlike the presidential communications privilege, the deliberative process

privilege only covers material that is predecisional and deliberative; it “does not shield

documents that simply state or explain a decision the government has already made or

protect material that is purely factual, unless the material is so inextricably intertwined with

the deliberative sections of documents that its disclosure would inevitably reveal the

government’s deliberations.” In re Sealed Case, 121 F.3d at 737.

{27} The deliberative process privilege has been incorporated into FOIA, which contains

an exemption expressly privileging “inter-agency or intra-agency memorandums or letters

which would not be available by law to a party other than an agency in litigation with the

agency.” 5 U.S.C. § 552(b)(5). This exemption (Exemption 5) allows for the withholding

of all documents that would be privileged in litigation, and also has been interpreted to

privilege predecisional and deliberative agency communications. See Dep’t of the Interior

v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001) (noting that both the attorney

work product privilege and the deliberative process privilege fall under Exemption 5 of

FOIA); Tax Analysts v. IRS, 294 F.3d 71, 76 (D.C. Cir. 2002) (Exemption 5 has been

“interpreted to encompass, inter alia, three evidentiary privileges: the deliberative process

privilege, the attorney-client privilege, and the attorney work product privilege.”).

Consistent with the recognized core purpose of the deliberative process privilege, Exemption

5 protects only predecisional agency communications, not communications about decisions

that have already been made. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975)

(“[I]t is difficult to see how the quality of a decision will be affected by communications .

. . occurring after the decision is finally reached.”).

{28} FOIA and IPRA are not identical, as we recently explained in San Juan Agric. Water

Users Ass’n. 2011-NMSC-011, ¶¶ 38-41 (discussing many of the differences between IPRA

and FOIA and concluding that federal court interpretations and applications of FOIA are not

binding on New Mexico courts construing IPRA). Although the two statutes share the

common purpose of providing public access to government documents, FOIA jurisprudence

is of limited persuasion when interpreting IPRA, because IPRA ensures greater access to

government records than does FOIA. See id. ¶ 38 (stating that IPRA’s text “underscore[s]

a legislative intent to ensure that New Mexicans have the greatest possible access to their

public records”); cf. Hearst Corp. v. Hoppe, 580 P.2d 246, 249, 251-52 (Wash. 1978) (noting

that the state disclosure act “closely parallels FOIA . . . and thus judicial interpretations of

that act are particularly helpful in construing our own” (internal citation omitted)).

2. Executive Privilege in Other States

{29} States that recognize a gubernatorial version of executive privilege have premised

that privilege on an analogy between the relationship of a governor to his or her state, and

that of the President to the United States. See Hamilton v. Verdow, 414 A.2d 914, 921 (Md.

1980) (“Our cases have recognized . . . that the Governor bears the same relation to this

State as does the President to the United States, and that generally the Governor is entitled

12

to the same privileges and exemptions in the discharge of his duties as is the President.”).

Consequently, the few state high courts that have considered the issue explicitly have

concluded that governors enjoy an executive communications privilege analogous to the

federally recognized presidential communications privilege. See, e.g., Nero v. Hyland, 386

A.2d 846, 853 (N.J. 1978). For example, over a strong dissent, the Ohio Supreme Court held

that the governor may assert a qualified executive communications privilege (which that

court denominated as a “gubernatorial-communications privilege.”). State ex rel. Dann v.

Taft, 848 N.E.2d 472 (Ohio 2006). The court determined that the governor

has a qualified gubernatorial-communications privilege that protects

communications to or from the governor when the communications were

made for the purpose of fostering informed and sound gubernatorial

deliberations, policymaking, and decisionmaking. This qualified

gubernatorial-communications privilege is overcome when a requester

demonstrates that the requester has a particularized need to review the

communications and that that need outweighs the public’s interest in

according confidentiality to communications made to or from the governor.

Id. at 485. A dissent from the majority opinion argued that the recognition of the executive

communications privilege was contrary to the policy of openness of the Ohio government.

Id. at 490 (Pfeifer, J., dissenting). That dissenting opinion also disputed the conclusion that

a governor should be entitled to the same privileges as the President, nothing that “though

[the President’s and a governor’s] roles may be analogous, their duties and responsibilities

are far from equal,” and urging that “[t]he scale of the privilege should reflect the difference

in scale between the offices.” Id. at 491.

{30} Although only a relative handful of state courts have ruled on the existence of an

executive communications privilege, a greater number have addressed the applicability of

a deliberative process privilege. Some states, parallel to the deliberative process privilege

created by the federal courts, recognize a privilege available not only to the governor, but

also to executive agencies responding to public records requests. See, e.g., Gwich’in

Steering Comm. v. Office of the Governor, 10 P.3d 572, 578-79 (Alaska 2000); City of

Colorado Springs v. White, 967 P.2d 1042, 1049-50 (Colo. 1998) (en banc); DR Partners

v. Bd. of Cnty. Comm’rs of Clark Cnty., 6 P.3d 465, 469-70 (Nev. 2000); In re Liquidation

of Integrity Ins. Co., 754 A.2d 1177, 1182 (N.J. 2000); Commonwealth v. Vartan, 733 A.2d

1258, 1263-64 (Pa. 1999); Herald Ass’n, Inc. v. Dean, 816 A.2d 469, 474-75 (Vt. 2002). In

a few instances, state public records statutes track Exemption 5 of FOIA and expressly

exempt from disclosure agency-generated documents reflecting policy deliberations. See,

e.g., City of Garland v. Dallas Morning News, 22 S.W.3d 351, 360 (Tex. 2000) (citing Tex.

Gov’t Code Ann. § 552.111 (West 1993)). More typically, state high courts recognize a

deliberative process privilege based purely on common law principles. See, e.g., City of

Colorado Springs, 967 P.2d 1042, 1049-51 (distinguishing the deliberative process

privilege’s common law origin from the executive communications privilege’s constitutional

basis); see also Gwich’in Steering Comm., 10 P.3d at 578 (noting that the deliberative

13

process privilege is not grounded in “constitutional notions of separation of powers”).

{31} Other states have considered and rejected a common law deliberative process

privilege. See, e.g., Rigel Corp. v. Arizona, 234 P.3d 633, 640-41 (Ariz. Ct. App. 2010);

People ex rel. Birkett v. City of Chicago, 705 N.E.2d 48, 53 (Ill. 1998); News & Observer

Publ’g Co. v. Poole, 412 S.E.2d 7, 20 (N.C. 1992) (“We refuse to engraft upon our Public

Records Act exceptions based on common-law privileges, such as a ‘deliberative process

privilege,’ to protect items otherwise subject to disclosure.”); Sands v. Whitnall Sch. Dist.,

754 N.W.2d 439, 458 (Wis. 2008) (“Wisconsin does not recognize a deliberative process

privilege. [State statute] precludes the extension of common law privileges by the court on

a case-by-case basis, but rather requires common law privileges not originating in the

constitution to be adopted by statute or court rule.”); see also Freudenthal v. Cheyenne

Newspapers, Inc., 233 P.3d 933, 942 (Wyo. 2010) (declining to rule on whether Wyoming’s

public records law incorporates the deliberative process privilege).

{32} One state, Massachusetts, does not recognize any form of executive privilege. The

Massachusetts Supreme Judicial Court held that neither constitutional nor common law

executive privilege could be invoked to shield documents from production in a civil action.

Babets v. Sec. of the Exec. Office of Human Servs., 526 N.E.2d 1261, 1264 (Mass. 1988).

The court in Babets concluded that the doctrine of separation of powers did not compel

recognition of an executive privilege, as “[w]hat [the] doctrine interdicts is the interference

by one branch of government with the power or functions of another,” and the decision not

to recognize an executive privilege “does not constitute the exercise of nonjudicial power

or interfere with the Executive’s power.” Id. at 1263. The court then refused to create a

common law executive privilege, noting that privileges in Massachusetts are normally

conferred by the legislature. Id. at 1264-65. The court rejected the executive’s argument

that the privilege was necessary to promote “candid and unconstrained communication and

exchange of ideas between and among executive policymakers and their advisors . . . in

light of the long history of the Commonwealth and the lack of any showing of real harm that

has accrued from the absence of the privilege.” Id. at 1266.

3. Executive Privilege in New Mexico

{33} Having reviewed executive privilege in the federal courts and our sister states, we

now turn to the proper scope of the privilege in New Mexico. The assertion of executive

privilege in response to an IPRA request is a matter of first impression for this Court. We

previously have concluded, however, that some form of executive privilege is mandated by

the separation of powers clause of the New Mexico Constitution. First Judicial, 96 N.M.

at 257, 629 P.2d at 333.

{34} We decided First Judicial, our formative opinion on executive privilege, in response

to a discovery dispute in civil cases arising from the 1980 state penitentiary riot. The

Attorney General conducted an extensive investigation into the riot, and claimed that all of

the information gathered during the course of that investigation was privileged from

14

discovery in any matter. Id. at 256-57, 629 P.2d at 332-33. We agreed with the Attorney

General that he was entitled to withhold information pursuant to executive privilege. Id. at

258, 629 P.2d at 334.

{35} First Judicial explained that “for a privilege to exist in New Mexico, it must be

recognized or required by the Constitution, the Rules of Evidence, or other rules of this

Court.” Id. at 257, 629 P.2d at 333. We reaffirm that holding here. We then held that

“recognition of an executive privilege is required by the Constitution of the State of New

Mexico[,]” specifically the separation of powers clause contained in Article III. Id. Citing

Nixon, 418 U.S. 683, and Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318

(D.D.C. 1966), aff’d 384 F.2d 979 (D.C. Cir.1967), we stated:

The purposes of the executive privilege are 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. The executive privilege First Judicial recognized is not

absolute, as that “would conflict with the constitutional duty of the courts to do justice in

matters brought before it.” Id.

{36} First Judicial went on to instruct that in the context of civil discovery, the trial court

must determine whether the privilege was properly invoked and then balance the competing

interests in order to determine whether the privilege has been overcome. Id. First Judicial’s

balancing test requires that the movant show good cause for the production of the material

over which the privilege has been asserted. Id. The trial court must then conduct an in

camera review of the material to determine if it “would be admissible in evidence and that

it is otherwise unavailable by exercise of reasonable diligence.” Id. Finally, the trial court

must assure that the balance of interests weighed in favor of disclosure. Id. First Judicial

identified the competing interests as “the public’s interest in preserving confidentiality to

promote intra-governmental candor,” and “the individual’s need for disclosure of the

particular information sought.” Id. (citing Nixon, 418 U.S. 712, and Armstrong Bros. Tool

Co. v. United States, 463 F. Supp. 1316, 1320 (Cust. Ct. 1979) (discussing the balancing

necessary before an assertion of deliberative process privilege will be honored)). The

competing interests implicated by a claim of executive privilege are more accurately

characterized as the public’s interest in disclosure weighed against the government’s interest

in nondisclosure. See Lamy v. N.H. Pub. Utils. Comm’n, 872 A.2d 1006, 1010 (N.H. 2005)

(identifying the central tension as between “the public interest in disclosure against the

government interest in nondisclosure” as well as any individual privacy interests in favor of

nondisclosure); Denver Post Corp. v. Ritter, 230 P.3d 1238, 1240 (Colo. App. 2009) (noting

that Colorado’s public records law “balances the public’s interest in access to information

. . . against the privacy interests of public officials and employees”). As we explain below,

15

when the Governor invokes executive privilege in response to an IPRA request, however,

courts do not apply First Judicial’s balancing test.

{37} In contrast to its recognition of a constitutionally-based executive communications

privilege, First Judicial rejected the assertion of a common law “public interest privilege.”

Id. The Attorney General had argued that the Court should recognize such a privilege to

protect his communications with individuals outside of the executive department exchanged

in the course of his investigation. Id. at 258-59, 629 P.2d at 334-35. In the Attorney

General’s view, the “rule of reason” exception to disclosure set forth in Newsome, discussed

above, supported the existence of a public interest privilege. Id. at 260, 629 P.2d at 336.

First Judicial concluded, however, that neither the constitution nor the evidentiary rules

mandated such a privilege or any other common law evidentiary privileges, noting that if

such privileges were accepted, “there would be no limit to the communications that could

be protected.” Id. at 260, 629 P.2d at 336. Two justices dissented in part in First Judicial,

arguing that the Court should recognize a public interest privilege. Id. at 262, 629 P.2d at

338 (Easley, C.J., dissenting in part and concurring in part). The dissenting opinion

concluded that the constitution supported the existence of a privilege for information

gathered from the public by the Attorney General in the course of an investigation. Id. In

addition, the dissent opined that New Mexico had adopted the common law privileges, and

urged that Newsome’s rule of reason provided the basis for the public interest privilege in

this case. Id. at 263, 629 P.2d at 339.

{38} First Judicial’s acknowledgment of constitutionally-based privileges and rejection

of common law privileges is analogous to the New Mexico Rules of Evidence, which

contemplate privileges only as “required by [the] constitution, [the Rules of Evidence] or in

other rules adopted by the supreme court,” not common law privileges. Rule 11-501. We

discern no legally sound reason to recognize privileges applicable to public records requests

where we have not done so in the context of litigation. This conclusion flows from the

language of IPRA itself, which mandates that New Mexicans “are entitled to the greatest

possible information regarding the affairs of government and the official acts of public

officers and employees.” Section 14-2-5. Allowing the executive to resist disclosure on the

basis of a common law deliberative process privilege not otherwise recognized under our

state’s constitution would frustrate IPRA’s guiding purpose of promoting government

transparency. See San Juan Agric. Water Users Ass’n, 2011-NMSC-011, ¶ 16 (“In order for

government to truly be of the people and by the people, and not just for the people, our

citizens must be able to know what their own public servants are doing in their name.”). As

a result, consistent with First Judicial we reject the Court of Appeals’ adoption of the

common law deliberative process privilege.

{39} We reaffirmed First Judicial’s outlining of executive privilege in Estate of Romero.

2006-NMSC-028, ¶ 12. In that case, the City of Santa Fe attempted to assert executive

privilege to preclude discovery of law enforcement investigatory materials. Id. ¶ 10. We

refused the city’s invitation to revisit First Judicial’s disallowance of common law

evidentiary privileges. Id. ¶ 11. We also rejected an expansion of the executive privilege

16

to city agencies, underscoring that constitutional separation of powers does not extend

beyond the entities “contemplated in the Constitution as part of the executive branch.” Id.

¶ 13 (citing State ex rel. Chapman v. Truder, 35 N.M. 49, 52, 289 P. 594, 596 (1930)).

{40} We acknowledge that First Judicial used language consistent with both an executive

communications privilege and a deliberative process privilege. At its heart, First Judicial

recognized a form of executive privilege based on separation of powers principles enshrined

in our state constitution, 96 N.M. at 257, 629 P.2d at 333, that would necessarily embrace

an executive communications privilege but exclude a common law deliberative process

privilege. First Judicial also identified “the valid need for protection of communications”

within the executive branch. Id. at 258, 629 P.2d at 334 (emphasis added).

{41} On the other hand, First Judicial described the purpose of executive privilege as “to

safeguard the decision-making process of the government by fostering candid expression of

recommendations and advice and to protect this process from disclosure,” id., a rationale

that, depending on the actors involved, could support the executive communications

privilege, the deliberative process privilege, or both. We are not persuaded, though, that First

Judicial clearly embraced the deliberative process privilege. Although the Court of Appeals

in this case relied on a general citation to Carl Zeiss as an indication that First Judicial

intended the deliberative process privilege to be included in the constitutionally-mandated

executive privilege, Republican Party, 2010-NMCA-080, ¶ 32, we find it unlikely that this

Court intended to adopt the common law deliberative process privilege endorsed by Carl

Zeiss shortly after disavowing common law privileges. In fact, First Judicial applied the

privilege to documents that appear to have been neither “communications” nor

“deliberative,” but instead consisted of written responses to interview questionnaires and

other information compiled by the Attorney General’s staff in the course of investigating the

penitentiary riot. Id. at 256-57, 629 P.2d at 332-33.

{42} We disavow First Judicial to the extent that it could be read to support the adoption

of the deliberative process privilege, see Republican Party, 2010-NMCA-080, ¶ 32, and hold

emphatically that no deliberative process privilege exists under New Mexico law. In

addition to apparently conflating the executive communications privilege and the

deliberative process privilege, First Judicial also left many unanswered questions about the

boundaries of executive privilege. At the time we decided First Judicial, executive privilege

jurisprudence was in its early stages of development; although we cited generally to Nixon,

we did not discuss the different categories of the executive privilege that courts were

beginning to recognize, nor the rationales for how to define the contours of that privilege.

{43} Following the principles established by First Judicial, we hold that our jurisprudence

supports a limited form of executive privilege derived from the constitution. This privilege

is similar in origin, purpose, and scope to the presidential communications privilege

recognized by the federal courts and the executive communications privilege recognized by

some other state high courts. Having determined the form of executive privilege recognized

under New Mexico law, we now clarify which documents may potentially qualify for the

17

privilege and who may invoke the privilege. The Governor, of course, may opt to exercise

his or her executive privilege in a more limited fashion than provided by the constitution, but

the delineation of the privilege’s outer limits remains this Court’s responsibility: “[I]t is the

judiciary (and not the executive branch itself) that is the ultimate arbiter of executive

privilege.” Comm. on Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp. 2d

53, 103 (D.D.C. 2008); see also Nixon v. Sirica, 487 F.2d 700, 713 (D.C. Cir. 1973)

(Holding that applicability of executive privilege is for the courts, not the executive itself,

to define).

{44} First, executive privilege in New Mexico can only apply to “communications,”

because the privilege exists solely to protect the executive’s “access to candid advice,” In

re Sealed Case, 121 F.3d at 745, not to keep all information related to the executive beyond

the reach of the public. Cf. Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of

Homeland Sec., 592 F. Supp. 2d 111, 118-19 (D.D.C. 2009) (“[T]he presidential

communications privilege, as its name and the Circuit’s opinions suggest, extends only to

communications.”). The court in Citizens for Responsibility & Ethics in Washington

determined that White House visitor logs, the records at issue in that case, “shed[] no light

on the content of communications between the visitor and the President or his advisers,

whether the communications related to presidential deliberation or decisionmaking, or

whether any substantive communications even occurred.” We agree that the privilege can

only extend to documents that are communicative in nature.

{45} More specifically, in light of the privilege’s central purpose of “fostering candid

expression of recommendations and advice” to the Governor, First Judicial, 96 N.M. at 258,

629 P.2d at 334, the privilege is “limited to materials connected to [the chief executive’s]

decisionmaking, as opposed to other executive branch decisionmaking,” In re Sealed Case,

121 F.3d at 745, and “should never serve as a means of shielding information regarding

governmental operations that do not call ultimately for direct decisionmaking by the [chief

executive].” Id. at 752. Furthermore, because the privilege derives its force and legitimacy

from the constitution, the communications at issue must relate to the Governor’s

constitutionally-mandated duties. Cf. id. at 748 (identifying “the President’s Article II

powers and responsibilities as the constitutional basis of the presidential communications

privilege” (citing Nixon, 418 U.S. at 705 & n.16)); Judicial Watch, 365 F.3d at 1115

(concluding that “the presidential communications privilege is rooted in the President’s need

for confidentiality in the communications of his office in order to effectively and faithfully

carry out his Article II duties,” and noting that both Judicial Watch and In re Sealed Case

involved a claim of privilege over documents relating to “a non-delegable duty of the

President under Article II, Section 2 of the Constitution” (internal quotation marks and

citation omitted)). We see no basis for sanctioning an executive communications privilege

broader than the privilege afforded to the President of the United States. See Dann, 848

N.E.2d at 490 (Pfeifer, J., dissenting). In New Mexico, then, to be eligible for protection

from disclosure by operation of the executive communications privilege, the documents at

issue must concern the Governor’s decisionmaking in the realm of his or her core duties.

18

{46} Second, our executive privilege does not cover all communications in furtherance

of gubernatorial decisionmaking, but is limited to those communications to or from

individuals in very close organizational and functional proximity to the Governor. In In re

Sealed Case, the D.C. Circuit approved a “limited extension of the privilege beyond the

President to his immediate advisers.” 121 F.3d at 749. While not deciding exactly “how far

down the chain of command the presidential communication privilege extends,” id. at 749-

50, the court limited the privilege to communications authored or received by the President’s

closest advisers, “who have broad and significant responsibility for investigating and

formulating the advice to be given the President on the particular matter to which the

communications relate.” Id. at 752. The court explained that “[o]nly communications at that

level are close enough to the President to be revelatory of his deliberations or to pose a risk

to the candor of his advisers.” Id. We find persuasive the analysis from In re Sealed Case

that the executive (here, the Governor) need not have personally authored, or solicited and

received, a document in order for the privilege to apply. To be subject to the privilege,

however, the document in question must have been authored, or solicited and received, by

either the Governor or an “immediate adviser,” Judicial Watch, 365 F.3d at 1115, with

“broad and significant responsibility” for assisting the Governor with his or her

decisionmaking. In re Sealed Case, 121 F.3d at 752.

{47} Third, the privilege, rooted as it is in separation of powers, is not available to the

entire executive branch, as Respondents originally argued, but instead reserved to the

constitutionally-designated head of the executive branch—the Governor. See Dann, 848

N.E.2d at 485-86 (“[A] governor must formally assert the privilege by declaring that he or

she has reviewed the requested materials and concluded that the materials meet the criteria

of the privilege, i.e., that they constitute a communication either to or from him [or her] and

were made for the purpose of fostering informed and sound gubernatorial deliberations,

policymaking and decisionmaking.” (footnote omitted)); cf. Blumenthal v. Drudge, 186

F.R.D. 236, 242 (D.D.C. 1999) (“The President alone possesses [the] authority” to invoke

executive privilege.); but cf. Amnesty Int’l USA v. CIA, 728 F. Supp. 2d 479, 522 (S.D.N.Y.

2010) (permitting executive agency to invoke presidential communications privilege on

behalf of unnamed “senior presidential advisers”). The D.C. Circuit has noted that “[t]he

issue of whether a President must personally invoke the privilege remains an open question.”

Judicial Watch, 365 F.3d at 1114. We hold, however, that while the privilege can extend

to communications authored by close advisers, the privilege’s constitutional foundation

requires limiting its invocation to the Governor. As we do not recognize a common law

deliberative process privilege, cabinet agencies that are simply under the ultimate control of

the Governor may not assert a privilege to protect internal memoranda, contrary to the Court

of Appeals’ determination that the MVD could do so because it “is a cabinet department in

the executive branch.” Republican Party, 2010-NMCA-080, ¶ 29.

{48} We set forth these limitations in order to minimize unwarranted claims of privilege,

lessen undue burden on courts in resolving privilege disputes, and curb encroachments on

the public’s access to records relating to the activities of their government. These

requirements for invocation of the privilege are consistent with the legislative purpose of

19

IPRA: “[T]hat all persons are entitled to the greatest possible information regarding the

affairs of government and the official acts of public officers and employees.” Section 14-2-

5.

{49} Importantly, as we explained in First Judicial, 96 N.M. at 258, 629 P.2d at 334,

executive privilege in New Mexico is a qualified privilege. First Judicial directed courts to

“balance the public’s interest in preserving confidentiality to promote intra-governmental

candor with the individual’s need for disclosure of the particular information sought.” Id.

As we discuss above, this balancing test requires a show of “good cause for the production

of the requested information.” Id. If the party seeking disclosure makes such a showing, the

court then conducts an in camera review of the disputed documents and should order

disclosure “provided that the public’s interest in preserving confidentiality does not

outweigh the specific needs of the movant.” Id. First Judicial, however, involved a

discovery dispute, not a public records request. Unlike a party seeking discovery in civil

litigation, a party requesting public records under IPRA need not assert any particular need

for disclosure. Section 14-2-8(C) (“No person requesting records shall be required to state

the reason for inspecting the records.”). First Judicial’s instruction that courts should

balance the competing needs of the executive and the party seeking disclosure, therefore,

does not apply to claims of executive privilege under IPRA. Instead, courts considering the

application of executive privilege to an IPRA request must independently determine whether

the documents at issue are in fact covered by the privilege, and whether the privilege was

invoked by the Governor, to whom the privilege is reserved. Where appropriate, courts

should conduct an in camera review of the documents at issue as part of their evaluation of

privilege.

{50} Under these standards, it is evident that the records that prompted the underlying

lawsuit here would not qualify for the privilege. The records that were at issue are

principally internal emails between MVD staff, not communications with Governor

Richardson or his immediate advisers. The record only contains redacted versions of the

emails, so it is impossible to ascertain their contents, but Respondents never claimed that the

emails contained policy recommendations to the former Governor or otherwise evidenced

his deliberations on a policy matter. Ultimately, Respondents acknowledged that the

communications were not directed to Governor Richardson or his immediate advisers and

were not “used by any such official to make policy recommendations or decisions,” but

instead “involve employees implementing policies and otherwise performing the routine

functions of the agencies for which they work.” In addition, the entity that attempted to

assert privilege over the documents was the MVD, not the Governor, which in itself renders

that claim of privilege invalid.

IV. CONCLUSION

{51} Transparency is an essential feature of the relationship between the people and their

government. This foundational principle far predates IPRA, New Mexico’s statehood, and

even George Washington’s first term as our nation’s President. In 1788, during debate on

20

the ratification of the United States Constitution, the patriot Patrick Henry so eloquently

stated:

Give us at least a plausible apology why Congress should keep their

proceedings in secret. . . . The liberties of a people never were, nor ever will

be, secure, when the transactions of their rulers may be concealed from them.

. . . [T]o cover with the veil of secrecy the common routine of business, is an

abomination in the eyes of every intelligent man, and every friend to this

country.

3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution,

As Recommended by the General Convention at Philadelphia in 1787 169-70 (Jonathan

Elliott ed., 1881).

{52} The constitution is the heart, the soul, the genius of our system of government, and

its safeguarding is this Court’s “highest duty and most sacred function.” Dolese v. Pierce,

16 N.E. 218, 221 (Ill. 1888). Our constitution expressly limits the powers of the three co-

equal branches, and is at its apex when the people have access to the information necessary

to determine whether their elected officials are faithfully fulfilling their duties. To protect

the people’s vital right to access information about the workings of government, we hold that

executive privilege must be confined to the constitutional limits set forth in this Opinion.

{53} IT IS SO ORDERED.

____________________________________

PATRICIO M. SERNA, Justice

WE CONCUR:

____________________________________

PETRA JIMENEZ MAES, Chief Justice

____________________________________

RICHARD C. BOSSON, Justice

____________________________________

EDWARD L. CHÁVEZ, Justice

____________________________________

CHARLES W. DANIELS, Justice

Topic Index for Republican Party of NM v. NM Taxation & Rev. Dept., Docket No.

32,524

21

CONSTITUTIONAL LAW

Mootness

New Mexico Constitution, General

GOVERNMENT

Executive Branch

Executive Privilege

Public Records

MISCELLANEOUS STATUTES

Inspection of Public Records Act

22