Republican Party v. New Mexico Taxation & Revenue Department
283 P.3d 853
N.M.2012Background
- Ott, as IPRA requester, sought documents from NM MVD related to issuing driver’s licenses to foreign nationals and an audit ordered by Governor Richardson.
- Respondents redacted some documents citing attorney-client privilege, executive privilege, and Privacy Acts (DPPA/NMDPPA).
- Petitioners sued in Second Judicial District Court to obtain unredacted records; district court granted summary judgment for redactions on Privacy Act grounds and related privileges.
- Court of Appeals affirmed on Privacy Act/privilege grounds; certiorari granted to address executive privilege scope and IPRA interplay; eight documents remained at issue.
- Governor Martinez issued a post-certiorari executive order narrowing executive privilege; parties later moved toward settlement, but this Court retained jurisdiction to decide mootness and the scope of executive privilege under IPRA.
- This Court ultimately held that New Mexico recognizes a constitution-based executive privilege limited to communications to or from the Governor and his very close advisers, and rejects a general, common-law deliberative process privilege; IPRA’s public records purpose requires disclosure where privilege does not apply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of executive privilege under IPRA | Ott argues executive privilege should not shield the documents. | NM argues Governor may invoke executive privilege to protect certain communications. | Governor's privilege is constitutionally grounded and limited to Governor and close advisers; not all agency materials. |
| Who may invoke the privilege | Privilege could be asserted by agencies under the Governor's control. | Only the Governor may invoke the privilege. | Privilege may be invoked only by the Governor, not by cabinet departments or agencies. |
| Deliberative process privilege | Deliberative process privilege should shield non-final agency documents. | Deliberative process privilege should apply to IPRA requests where appropriate. | Deliberative process privilege does not exist under New Mexico law. |
| Mootness and public interest | Case remains live due to ongoing questions about executive privilege. | Settlement and post-litigation development render the case moot. | Case deemed moot but granted to address a substantial public interest in the scope of executive privilege. |
Key Cases Cited
- State ex rel. Att’y Gen. v. First Judicial Dist. Court, 96 N.M. 254 (1981) (recognition of executive privilege grounding in NM Constitution)
- Newsome v. Alarid, 90 N.M. 790 (1977) (right to inspect records; rule of reason for exceptions)
- In re Sealed Case, 121 F.3d 745 (D.C. Cir. 1997) (presidential communications privilege; scope beyond direct communications with President)
- Judicial Watch, Inc. v. Department of Justice, 365 F.3d 1108 (D.C. Cir. 2004) (limited scope of presidential communications privilege for non-close advisers)
- San Juan Agric. Water Users Ass’n v. KNME-TV, 2011-NMSC-011 (2011) (IPRA vs FOIA distinctions; emphasis on greatest access under IPRA)
- First Judicial Dist. Court, 96 N.M. 256 (1980) (recognition and scope of executive privilege in NM civil discovery)