*1 402 Mescalero, strongest provision required. federal
state’s interests are
when the
149-50,
411
93
at
taxpayer
recipient
of state services.
U.S. at
S.Ct.
1270-71.
explicitly
the Since no federal statute
forbids
Washington v.
Tribes
Confederated
Reservation,
attorney
taxation of the
in this
Colville Indian
447 U.S.
state
fees
case,
preemption
100
S.Ct. L.Ed.2d 416 activity beyond
tribal reservation bound susceptible
aries would be to taxation express
the state
the “absence of
federal
Mescalero,
contrary.”
law
U.S.
Mescalero,
In
at
Apache Tribe on off-reservation land. Indi UNIVERSITY OF NEW MEXICO going beyond ans reservation boundaries REGENTS, al., BOARD et OF generally subject have been held to nondis Respondents-Appellees. criminatory state that are laws otherwise No. 16786. applicable to all citizens of the state. Id. at 148-49, preemp at 1270-71. The S.Ct. Mexico. Court New by implication tion not extend doctrine does Aug. to insulate a non-Indian from state taxes performed off work the reservation. reviewing state taxation of
When
activities of non-Indians the reserva off tion, express an actual conflict with an *2 Employment Office
lized the services help by job domestic means of obtain Trahan, postings, explana- and that without tion, job posting his based on cancelled employees. Spadaro complaints by student asserted access Inspection under the New Mexico of Public Act, 14-2-1, Records NMSA Section (Orig.Pamp.). Spadaro filed an amended petition verified for writ of mandamus formally joined which Regents New Mexico Board of as an addi- respondent alleged the same tional alleged cause of action as that in the initial petition. Trahan filed an answer to the petition, amended denied essential alle- gations petition, of the amended and af- firmatively asserted that Trahan was not Employ- the custodian of records of the that the ment Office. Trahan also asserted question records in under the New Mexico of Public Family Act or the Education and Records (1982); 1232(g) Privacy 20 U.S.C. § mandatory duty to refuse to there was a records; disclose the confidential; and that a rea- should remain given Spa- explanation had been sonable regarding refusal to disclose daro Trahan’s the records.
By agreement parties, Theresa Associates, respondent and Trahan dismissed as a Rawley Joy & Chris- James in her tenberry, Albuquerque, petitioner-ap- John Whiteside was substituted all records con- place as the custodian of pellant. employment. No cerning part-time student Chavez, Albuquerque, L. for re- Edward ap- mandamus nor amended writ writ of spondents-appellees. filed a pears in the court file. Whiteside pleadings on the motion for OPINION court on case was to the trial submitted SCARBOROUGH, Chief Justice. findings of fact. The trial court granted motion. We affirm. Petitioner, Giorgio Spadaro, filed a veri- fied Petition for Writ of Mandamus Spadaro, a citizen of the State Trahan, respondent, to dis- Theresa obtain Mexico, job listing through the posted a of certain documents from the closure Office, a division of the UNM Employment (UNM) Part- University of New Mexico Aid. The Univer- Department of Financial (the Em- Employment Office Time Student required sity Mexico is not either of New Office). ployment operate Regents’ policy to by statute or Office, is a referral Employment alleged that Trahan was Petitioner per- agency providing service at no cost to custodian of Office employing UNM stu- kept neces- sons interested “required by kept law to be only to listings are directed discharge imposed by dents. Job sarily in of duties uti- enrolled UNM students. alleged that he law.” Office jobs determines appropri- what are The threshold inquiry we must make is ate for Spadaro’s student referral. job no- whether the complaints requested student tice a female student who was will- by Spadaro records” within the exchange light childcare and house- meaning of Section 14-2-1. We with keeping duties for room and board. the trial court that the *3 public are not records. Neither the courts
Spadaro interviewed at least two UNM legislature nor the “public have defined job students as a result of the posting. records” within the During September context of the Trahan New informed Spadaro Inspection job posting that his Mexico cancelled Act. However, separate because she received two in com- the New Mexico Attor- plaints from required interviewees that the ney “public General defined a record” as a specified by duties were not those job public made official is who listing. Spadaro sought copies of the com- authorized law to make it. Op. AG No. plaints Respondents filed him. re- (1963). Respondent argues that we provide copies fused to complaints, adopt should this definition of President, but the University’s Farer, Tom purposes records for of disclosure under responded request by to the stating that Inspection New Mexico of Records Act. job postings provided were as a conve- We that a “public definition of nience for students and would be removed records” purposes for the of the New Mexi- complaint if a was received. Farer further Inspection co of Public Records Act would explained that job removal of the posting helpful to the deciding courts in what did complaint not mean that a necessarily disclosed, records should be it is for but credence, only had long- but that it nowas provide the definition. er particular convenient to post- continue a Appellant argues that we should apply ing. Alarid, State ex rel. Newsome v. compel seeks to disclosure of 790, (1977) to the facts of complaints or to receive a reasonable this case. Newsome is not authority for explanation regarding the removal of the Spadaro’s claim complaints that student job listing, argues and first that the trial subject are to disclosure. Newsome did not court concluding erred in that the student define records.” Newsome’s basic complaints are “not records under assumption was that all records there dealt Inspection New Mexico of Public with were purposes records for Acts, Records Section 14-2-1 to 14-2-3 Inspection of Public Records Act. The NMSA 1978.” This dispositive. issue is Court Newsome dealt with stat NMSA (Cumm. Section 14-2-1 utory exceptions to disclosure under the Supp.1987) provides: non-statutory carved out a “confiden Every citizen of this state has a tiality exception” to disclosure under the inspect any public records of this state Act, required the trial court to conduct except: an in camera examination of documents A. pertaining records physical or prior to disclosure when a claim of confi mental examinations and medical treat- dentiality had been asserted. A “rule of persons ment of confined to institu- analysis reason” for each instance where a tions; claim of confidentiality ap is raised was B. letters of concerning reference proved by this Court. essentially This is employment, licensing permits; or balancing test requires which the trial C. letters or memorandums which are court to balance the fundamental opinion personnel matters of files or all citizens to have reasonable access to files; students' cumulative against countervailing provided D. as by the Confidential policy considerations which favor confiden [14-3A-1, Materials Act 14-3A-2 NMSA tiality and nondisclosure. The rule of rea 1978]; and analysis son applicable only is to claims of provided
E. as otherwise confidentiality law. asserted for Although statutory not fall been dismissed from case. that do into one person initially as the she identified who exceptions to' contained in disclosure Sec- complaints received the two student about analysis is not tion 14-2-1. Such an avail- Spadaro complains, relationship her applicable facts in able nor this case. has never been defined or properly The trial court concluded record. It described is unclear what complaints they became of the after Therefore, subject not to dis- received Trahan. The does re- covery under the Mexico flect, however, “Spadaro has been con- simply Records The Act does Public Act. sistently access to refused the students’ apply. not maintained the Part-Time parties have that UNM is Employment Office.” Neither this office policy operate statute employees nor its have been identified as *4 Employment Employ- Office. Since the the public employees. office or is a creature of ment Office neither statute properly judg granted The court trial by policy, university nor created there is no ment to This sub Whiteside. case was mandatory obligation duty to or make or to on agreed mitted the trial court an state keep complaints a of student re- agreed ment of the statement facts. Since Employment the ceived Office. The go beyond pleadings, of facts the treat we complaints are for not before us review nor pleadings judgment the motion for on the they were before the trial court. The con- though summary a motion for as it were complaints tent of the is unknown. Wheth- prima made facie judgment. Whiteside a er are written or is not verbal known. judg showing summary to of entitlement know, however, We do from the obliged ment. to show Whiteside was us, legal facts before there was no that beyond possibility genuine all that no issue operation mandate for the of the Employ- prima fact a facie show of existed. Once Office, ment complained where the events made, of Spadaro had the burden was place. Spadaro argues of took that is “[i]t demonstrating a doubt at least reasonable illogical duty keep to assume that the to genuine of fact exist-. as whether a issue imposed on the Financial Aid Office 241, Swafford, 101 N.M. ed. Kerman v. apply recognized would not to a division 243, The (Ct.App.1984). 680 P.2d office, though maintained even that opposing motion his bur party the carries facts, specific or proof setting specific there is no statute formal Re- forth den of evidence, showing a that there gent’s policy sub-depart- to maintain such admissible in Storey v. genuine a issue for trial. argu- is authority ment.” No is cited for this Hosp./BCMC, 105 N.M. ment, any authority Spada- nor is cited of (1986). P.2d N.M. argument “employees that of ro’s by Spadaro failed presented The evidence Employment public officers the Office are that the student to establish The working for the Financial Aid Office.” kept by or a a record made stipulation us does not establish before Regents official. In Board Sanchez officers, of agents any employees, or of that Univ., 672, 486 82 N.M. Eastern N.M. pos- any public office received or now ever (1971), found P.2d 608 Court complaints for any records of student sess faculty university salary schedule that sought by Spadaro. disclosure is now meaning within not a was stipula- John Whiteside identified Similarly, 14-2-1. the student of Section of records for the tion as the custodian here This office is Employment Office. identi- of the trial court is affirmed. Department fied as a division of the UNM IT IS SO ORDERED. Aid, is not iden- of Financial but Whiteside agent of De- employee or tified as SOSA, STOWERS, Justice and Senior agent Aid or as an partment Financial J., concur. university Tra- department. Theresa RANSOM, JJ., han, initially was identified WALTERS and who complaints, has dissent. the custodian of student as
RANSOM,
(dissenting).
Justice
ture or in the courts under real circum-
stances.
respectfully
I
dissent.
right
inspect
kept
specific
premise
On the
no
statute or
government
agency
given
of the
uni-
university policy required
formal
UNM to
versally;
exceptions
are to be taken
employment
maintain a student
referral
selectively by
or the courts
service,
majority
concludes that
according to the rule of
I
reason.
believe it
mandatory
no
Office had
obli-
thought,
was to advance this
rather than to
gation
duty
keep
to make or
a record of
beg
comprises
the issue of what
complaints.
purposes
For
record, that
the Court said
ex rel.
State
Inspection of
the ma-
Alarid,
Newsome v.
jority
appears
require
“legal
then
man-
(1977),
that: “We hold that a citizen
operation
date for
Of-
right
has a fundamental
to have access to
fice,”
tacitly accepts
a definition of
records. The citizen’s
to know
pub-
records” as those records that
secrecy
exception.
is the rule and
lic officers are authorized and
contrary
Where there is no
statute or coun-
keep.
urged
adoption
law to
UNM
tervailing public policy,
inspect
definition,
and the
court accord-
trial
freely
records must be
allowed.” 90
ingly had concluded that
N.M. at
.expansively
defined
then
but
narrowed
exempt
pub-
ries
from disclosure or unless
specifically
exemptions.
delineated
R.
See
policy
lic
militates
disclosure.1 To
Franklin,
Bouchard and J.
Guidebook to
inspection,
initiate an
an
only
individual
Privacy
the Freedom
of Information
satisfy
public
needs to
the custodian of the
Acts,
(1987).
appendix
state statutes
record that he or she is a citizen and that
Under the New Mexico
of
inspection
purpose.
is for a lawful
90
798,
seems N.M. at
407
develop-
upon
balancing
this case is
factual
determination based
such a
ment
interests,
UNM substantiate its reasons
of
withholding
sought by
the documents
judge
the trial
must ever bear in mind
Spadaro.2 The trial court
did
conduct
public policy
favors the
inspection
requested
in camera
inspection
records and doc-
records as recommended
uments, and,
only
exceptional
it is
in the
Newsome court.
90 N.M. at
See
denied____
inspection
case that
should be
P.2d
at
only portion
If
... disclosure
a
a
[of
Notwithstanding
majority’s
tortured
prejudicial
is found to be
record]
reading
facts to the con-
interest,
judge
the trial
has the
trary,
it is clear that the
Of-
power
portion
taped
to direct such
to be
by public employees,
fice is staffed
funded
granting inspection.
over before
monies,
operated
with
under the
1242, (quoting
tute the of a record. The concluding
trial court in error
the records are not records. The
majority of this Court is error conclud- that the records are not records.
At contrary issue is whether there was a public policy statute or a that countervailed ROJO, Petitioner, Reydesel Spadaro’s right inspection. following
I conclude with the observa- v. Newsome, tion. In this discussed at Court LANDSCAPING, INC. LOEPER great length the Act at issue here and the Surety Casualty and Western appropriate procedure resolving for dis- Respondents. Company, concerning putes inspect public No. 17681. recognized records. The Newsome court to disclose that whether certain Mexico. Supreme Court of New require records would the trial court to Aug. 1988. accruing agen- balance “the benefits against the harm cy from non-disclosure and New Original Dissent Withdrawn if such result Aug. 1988. Dissent Issued inspec- not made available for records are P.2d at 90 N.M. at tion.” Holm, 226 Or.
(quoting MacEwan (1961)). reaching In file, appear to to be the demic so it would court, me counsel Before the trial "only position UNM would want to one of the of UNM to fit them within took burden basically say argue we facts because exceptions.” obviously They an aca-