End of Countervailing Public Policy Exception and Clarification of Executive Privilege

A. Countervailing Public Policy 

For many years, New Mexico courts recognized a “rule of reason” exception to the right to inspect public records when there was a countervailing public policy against disclosure. Under this judicially-created exception, nondisclosure of public records could be justified if the harm to the public interest from allowing inspection outweighed the public’s right to know. 

The New Mexico Supreme Court abolished the rule of reason exception in Republican Party of New Mexico v. New Mexico Taxation and Revenue Department, 2012-NMSC-026, 283 P.3d 853. The Court’s decision makes it clear that a public body may withhold a public record only if it is based on

(1) a specific exception contained within the Act,

(2) a statutory or regulatory exception, (3) a rule adopted by the New Mexico Supreme Court, or (4) a privilege protecting a record from disclosure that is grounded in the U.S. or state

B. Executive Privilege 

The Republican Party case also limited the use of executive privilege, which had been widely used by state executive agencies to deny public access to communications within those agencies regarding policy. The NM Supreme Court determined that the privilege was grounded in constitutional separation of powers principles, which meant it could be relied on to protect public records from disclosure. But then the Court strictly limited the application of the privilege to pre-decisional communications between the head of the executive (e.g., the governor) and his or her closest advisers regarding the head executive’s constitutionally-mandated duties. After Republican Party, the executive privilege is not available to cabinet agencies controlled by the governor or to local public bodies. 

Example 27:
The State Engineer is formulating a formal policy for handling water rights litigation in the state. As part of the process, she solicits the recommendations of division directors within the agency. Some of the directors respond with written memoranda addressed to the State Engineer that contain candid and controversial remarks regarding the issues and persons involved in water rights litigation. 

An attorney representing a party involved in a lawsuit against the state requests copies of all documents regarding the proposed policy. The request is denied based on executive privilege. The attorney challenges the refusal to allow inspection in district court. We think that, after the Republican Party decision, it is now clear that executive privilege would not protect the State Engineer’s Office’s internal memoranda and they would have to be provided to the attorney.

Example 28:
A construction project is proposed in an area that relies on groundwater for its water supply. The state agency charged with enforcing the state’s safe drinking water laws has contracted for a study of the impact of the project on local water supplies. A draft of the study was forwarded to the governor for review. A concerned resident requests a copy of the study from the agency. The agency denies the request on the basis that the copy is a draft document and protected by executive privilege. 

There is no statute or court rule that allows a public body to deny inspection of a record simply because it is a draft. See Edenburn v. New Mexico Department of Health, 2013 NMCA 045, ¶ 23 (holding that draft documents are public records under IPRA). The study is also not protected by  the executive privilege because the study was prepared and provided to the agency by a third party contractor and the study is not a “communication” to the governor or a communication between the governor and his or her closest advisors. Unless the state agency can identify a law permitting it to deny inspection of the study, the state agency must make the study available for inspection and copying.