                                                    I attest to the accuracy and
                                                     integrity of this document
                                                       New Mexico Compilation
                                                     Commission, Santa Fe, NM
                                                    '00'04- 09:44:01 2013.04.15
Certiorari Denied, February 26, 2013, No. 33,992

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMCA-045

Filing Date: December 11, 2012

Docket No. 31,285

LAUREL C. EDENBURN,

       Plaintiff-Appellant,

v.

NEW MEXICO DEPARTMENT OF HEALTH
and DEBORAH BUSEMEYER, Appointed
Custodian of Records in the Department of Health,

       Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Barbara J. Vigil, District Judge

Becht Law Firm
Paul F. Becht
Albuquerque, NM

for Appellant

Long, Pound & Komer, P.A.
Mark E. Komer
Santa Fe, NM

for Appellees

Gary K. King, Attorney General
Mark Reynolds
Scott Fuqua
Santa Fe, NM

for Amicus Curiae New Mexico Attorney General


                                        1
Rodey, Dickason, Sloan, Akin & Robb, P.A.
Charles K. Purcell
Albuquerque, NM

for Amicus Curiae New Mexico Foundation for Open Government

                                         OPINION

BUSTAMANTE, Judge.

{1}     Appellant’s motion for rehearing is granted. The opinion filed in this case on July
31, 2012, is withdrawn and this Opinion is substituted in its place. In addition to briefs by
the parties on the motion for rehearing, the Court received briefs from amici New Mexico
Foundation for Open Government (NMFOG) and the New Mexico Attorney General.

{2}     Appellant, Laurel C. Edenburn, sought to obtain records from Appellee, the New
Mexico Department of Health (DOH).1 After receiving some materials but being denied
others, Appellant filed a petition for a writ of mandamus to force DOH to disclose the
withheld material. DOH moved for and was granted summary judgment. We reverse.

I.     BACKGROUND

{3}     Edenburn’s first request letter was sent on August 20, 2007. It requested access to
seven categories of information related to the Title V Abstinence Education Block Grant
program managed by DOH. The letter referenced New Mexico’s Inspection of Public
Records Act (IPRA). See NMSA 1978, §§ 14-2-1 to -12 (1947, as amended through 2011).
The letter was received on August 24, and DOH responded on that day, stating that the
request was received and a response would be provided “within [fifteen] days in accordance
with the [IPRA], unless we encounter difficulties in retrieving the [material].” See § 14-2-11
(setting forth requirements for denials of written requests). On September 10, seventeen
days after receipt, DOH requested an extension “on your [IPRA]” request to September 15.
On September 14, DOH notified Edenburn by email that the records would be available for
inspection on September 18. Edenburn inspected them at the DOH offices. DOH notified
Edenburn on September 21 that there “may be additional documents which may be
responsive to your Public Records Request,” and requested an extension to “provide careful
review with the expectation of providing [Edenburn] with any responsive documents no later
than the first week of October 2007.” On October 10, Edenburn notified DOH that no
additional documents had been received and she requested a number of documents that were
not included in the inspection. DOH provided an additional set of documents to Edenburn


       1
           For ease of reference we will refer to both Appellees throughout the Opinion as
“DOH.”


                                              2
on October 25.

{4}      On November 2, Edenburn sent two letters to DOH referencing IPRA and identifying
documents still not received. One of these letters requested copies of an email string and a
draft letter, which are the subjects of the present enforcement action. For the sake of clarity,
we will refer to these as the “email string” and the “draft letter.” The request was received
by DOH on November 7. DOH responded fourteen days later, stating that these two items
were protected by executive privilege and would not be produced. Edenburn requested
additional information about the basis for executive privilege on November 28, including
which officials were involved in “sending or receiving” these items, whether the items were
related to “law or policymaking,” and, if so, the laws or policies to which they related, and
whether the items were “deliberative in nature.” On December 4, Edenburn sent another
letter, stating that “relative to handling my [November 2] request for public records, the
[DOH] has not complied with the terms of Section 14-2-11 of [IPRA].” See § 14-2-11
(stating that denial of access to public records must be made within fifteen days of receipt
of the request and include the names of the persons responsible for the denial and a
description of the records sought). DOH responded on January 4, 2008. This letter stated
that the email string was “deliberative and predeterminative in nature and was written before
any final determinations were made.” It also clarified that the draft letter was not subject to
executive privilege, but would not be produced because it was a draft and “therefore [is] not
subject to public records status.”

{5}      Edenburn filed a complaint to enforce the provisions of IPRA and for writ of
mandamus or injunction on February 19, 2009. An amended complaint was filed on June
4, 2009, to change the name of the nominal defendant and add a request for attorney fees and
costs. The complaint refers to Edenburn’s letter of November 2, 2007, in which she
requested access to inspect the DOH’s records, including those previously withheld. The
complaint alleges that “[DOH has] failed to comply with Section 14-2-11(B) . . . in that
[DOH] failed to set forth the names and titles or positions of each person responsible for the
denial . . . within fifteen (15) days after the request was received.” In addition, the complaint
alleges that “[DOH] should be required to pay damages to [Edenburn] not to exceed $100[]
per day for each day [DOH] is not in compliance until a written denial is issued.” DOH
moved for summary judgment. DOH’s motion was granted by two separate orders. The
district court found that (1) the “rule of reason” applied to the draft letter and, under that
rule, “countervailing public policy protects drafts such as this document from disclosure”;
and (2) the email string was protected from disclosure by the deliberative process privilege,
a form of executive privilege. See generally Russell L. Weaver & James T.R. Jones, The
Deliberative Process Privilege, 54 Mo. L. Rev. 279 (1989). The district court did not
conduct an in camera review of either document. The district court denied Edenburn’s claim
for statutory damages. This appeal followed.

II.     DISCUSSION

A.      The Republican Party Decision

                                               3
{6}     The primary question before the Court in this case is whether summary judgment was
properly granted. We determine that it was not. We base this decision on the New Mexico
Supreme Court’s ruling in Republican Party of New Mexico v. New Mexico Taxation &
Revenue Department (Republican Party II), 2012-NMSC-026, 283 P.3d 853, which was
decided after the present appeal was filed. In Republican Party II, the issue was whether the
deliberative process privilege applied to prevent disclosure of documents in the context of
a request for public records by plaintiffs who were “research[ing] whether undocumented
aliens were voting in federal, state, and local elections in New Mexico.” Republican Party
of N.M. v. N.M. Taxation & Revenue Dep’t (Republican Party I), 2010-NMCA-080, ¶ 3, 148
N.M. 877, 242 P.3d 444 (internal quotation marks and citation omitted). The Republican
Party of New Mexico sought records relating to driver’s licenses issued to “individuals who
are not citizens or legal residents of the United States.” Id. (internal quotation marks and
citation omitted). This Court held that the privilege applied and that the documents sought
were properly withheld. Id. ¶ 36. On certiorari, the New Mexico Supreme Court reversed.
Republican Party II, 2012-NMSC-026, ¶ 38. Several holdings in that case are dispositive
of the matter before us because they eliminate the bases on which DOH relied to withhold
the email string and draft letter, and on which the district court’s ruling rested. We first
summarize the relevant holdings of Republican Party II, and then apply them to this case.
Next, we address whether Republican Party II’s holdings apply retroactively or
prospectively. Finally, we address the issue of damages.

{7}     First, our Supreme Court negated the “rule of reason” analysis adopted in State ex
rel. Newsome v. Alarid, 90 N.M. 790, 797, 568 P.2d 1236, 1243 (1977) (internal quotation
marks and citation omitted), as a “non-statutory exception to disclosure.” City of
Farmington v. The Daily Times, 2009-NMCA-057, ¶¶ 8, 11, 146 N.M. 349, 210 P.3d 246,
overruled by Republican Party II, 2012-NMSC-026. It stated that, instead, “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.” Republican Party II,
2012-NMSC-026, ¶ 16.

{8}     Second, our Supreme Court held that “no deliberative process privilege exists under
New Mexico law.” Id. ¶ 42. The Court recognized that the term “executive privilege”
includes several different types of privilege, including the deliberative process privilege and
the executive communications privilege. Id. ¶ 18. Although the communications privilege
“is required by the Constitution of the State of New Mexico, specifically the separation of
powers clause contained in Article III,” the deliberative process privilege is rooted in the
common law. Id. ¶ 35 (alteration, internal quotation marks, and citation omitted); see N.M.
Const. art. III, § 1. Because New Mexico recognizes only those privileges “required by the
Constitution, the Rules of Evidence, or other rules of this Court,” such a common law
privilege is not recognized. Republican Party II, 2012-NMSC-026, ¶¶ 35, 38 (internal
quotation marks and citation omitted). The Court stated, “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

                                              4
promoting government transparency.” Id. ¶ 38.

{9}     Third, the Court held that the communications privilege is itself limited. It applies
only to communications “connected to the chief executive’s decisionmaking, as opposed to
other executive branch decisionmaking,” and only to those “to or from individuals in very
close organizational and functional proximity to the Governor.” Id. ¶¶ 44-46 (alteration,
emphasis, internal quotation marks, and citation omitted). And “the privilege . . . [is]
reserved to the constitutionally-designated head of the executive branch—the Governor.”
Id. ¶ 47. Consequently, only the Governor may assert the privilege. Id.

{10} Finally, the Supreme Court addressed how an assertion of the communications
privilege should be evaluated in the context of IPRA and refined the procedures set out in
earlier cases and different contexts. The procedures for evaluating executive privilege, first
articulated in State ex rel. Attorney General v. First Judicial District Court of New Mexico,
96 N.M. 254, 261, 629 P.2d 330, 337 (1981), abrogated on other grounds by Republican
Party II, 2012-NMSC-026, required the court 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. at 258, 629 P.2d at 334. Under First
Judicial’s approach, the agency must first show that the privilege applies. Id. Next, the
requester must “show good cause for the production of the requested information.” Id. If
good cause is shown, then “the court must then conduct an in camera examination of the
requested material,” and “be satisfied that the . . . material would be admissible in evidence
and that it is otherwise unavailable” to the requester. Id. If “these prerequisites are met,”
the materials must be disclosed “provided that the public’s interest in preserving
confidentiality does not outweigh the specific needs of the movant.” Id.

{11} The Republican Party II Court distinguished First Judicial, noting that it “involved
a discovery dispute, not a public records request.” Republican Party II, 2012-NMSC-026,
¶ 49. The Court held that “a party requesting public records under IPRA need not assert any
particular need for disclosure.” Id.; see § 14-2-8(C) (“No person requesting records shall be
required to state the reason for inspecting the records.”). In addition, the Court held that
First Judicial’s final balancing of the interests of the movant and the public’s interest in
confidentiality “does not apply to claims of executive privilege under IPRA.” Republican
Party II, 2012-NMSC-026, ¶ 49. “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.” Id.

{12} The overriding message of Republican Party II is that “every citizen has a
fundamental right to have access to public records.” Bd. of Comm’rs of Doña Ana Cnty. v.
Las Cruces Sun-News, 2003-NMCA-102, ¶ 16, 134 N.M. 283, 76 P.3d 36 (internal quotation
marks and citation omitted), overruled on other grounds by Republican Party II, 2012-
NMSC-026; see § 14-2-1(A). The purpose of IPRA is “to ensure . . . that all persons are
entitled to the greatest possible information regarding the affairs of government and the

                                              5
official acts of public officers and employees.” Section 14-2-5. “This right is limited only
by the Legislature’s enumeration of certain categories of records that are excepted from
inspection.” Republican Party II, 2012-NMSC-026, ¶ 13.

1.     Email String

{13} DOH argued in the district court that the deliberative process privilege applied to the
email string because it was between DOH employees and was “part of the internal decision-
making process surrounding the DOH’s determination of permissible and appropriate uses
of remaining available federal funding for the 2007 fiscal year.” Because New Mexico does
not recognize the deliberative process privilege, that privilege cannot prevent disclosure.
To the extent that DOH relies on the communication privilege in First Judicial, that
privilege does not apply either. DOH does not assert that the email string was a
communication involving the Governor, nor was the privilege asserted by the Governor. The
email string is disclosable under IPRA.

2.     Draft Letter

{14}   IPRA defines public records as

       all documents, papers, letters, books, maps, tapes, photographs, recordings
       and other materials, regardless of physical form or characteristics, that are
       used, created, received, maintained or held by or on behalf of any public
       body and relate to public business, whether or not the records are required by
       law to be created or maintained.

Section 14-2-6(F).

{15} The parties do not dispute that the requested letter was a draft. Thus, there is no
dispute of a material issue of fact; rather, the only question is whether draft documents fall
within IPRA’s definition of public records. It appears that the district court resolved this
question in the affirmative and then applied the “rule of reason” to conclude that public
policy against disclosure outweighed the general presumption in favor of public access to
public records.

{16} DOH argues that draft documents are not public records and points to Sanchez v.
Board of Regents of Eastern New Mexico University, 82 N.M. 672, 486 P.2d 608 (1971), the
Office of the New Mexico Attorney General’s Inspection of Public Records Act Compliance
Guide (6th ed. 2009) (Guide), and “numerous regulations” in the New Mexico
Administrative Code for support. We agree with both NMFOG and the Attorney General
that these sources do not support DOH’s position and that draft documents are public
documents within IPRA’s reach.

{17}   We note first that DOH’s position is belied by the broad language of the statute.

                                              6
Under IPRA, public records include “all documents . . . used, created, received, maintained
or held by or on behalf of any public body and relate to public business, whether or not the
records are required by law to be created or maintained.” Section 14-2-6(F); see The Daily
Times, 2009-NMCA-057, ¶ 7 (stating that, under IPRA, public records are “broadly
defined”). IPRA provides for eight exceptions to this definition, which further refine the
definition of “public record” and highlight the broadness of the basic definition reflecting
the general presumption in favor of public access to records. See Las Cruces Sun-News,
2003-NMCA-102, ¶ 11 (“Each inquiry starts with the presumption that public policy favors
the right of inspection.”). In addition, unlike open records statutes in some other states,2
IPRA’s definition does not exclude draft documents. DOH provides no argument based on
the language of the statute that demonstrates that drafts are excluded from this broad
definition.

{18} DOH argues that Sanchez, decided in 1971, “remains good law” and stands for the
proposition that “preliminary, non-final material” is not a public record. In Sanchez, the
Court held that a list of proposed salaries for university staff was exempt from disclosure
because “no useful purpose would be served by disclosing preliminary contractual
negotiations between the board and its . . . employees.” 82 N.M. at 675, 486 P.2d at 611.
Both NMFOG and the Attorney General argue that Sanchez is no longer good law because
it pertained to a “version of IPRA that no longer exists” and because its reasoning rested on
“an early application of the ‘rule of reason.’ ” We agree that Sanchez is not controlling here.

{19} First, Sanchez’s holding relied on the Public Records Act, which defined “public
records” differently than both the version of IPRA in place at the time and the current
iteration of IPRA. Compare the Public Records Act, NMSA 1978, § 14-3-2 (G) (2005), with
IPRA, NMSA 1953, § 71-5-1 (Supp. 1975) and § 14-2-6(F). In fact, the version of IPRA
in place when Sanchez was decided did not even include a definition of public records. See
§ 71-5-1; Newsome, 90 N.M. at 797, 568 P.2d at 1243. In Newsome, the Court made clear
that the two statutes were distinct because they had different purposes. 90 N.M. at 797, 568
P.2d at 1243. It held that the purpose of the Public Records Act was “to establish a system
for preserving records,” and that “[the Public Records Act and IPRA] have no relationship
to each other for purposes of decision [on disclosure of personnel records].” Id. The
Sanchez holding does not address today’s IPRA.


       2
         See Conn. Gen. Stat. Ann. § 1-210(b)(1) (West 2001) (exempting “[p]reliminary
drafts or notes provided the public agency has determined that the public interest in
withholding such documents clearly outweighs the public interest in disclosure”); 5 Ill.
Comp. Stat. Ann. 140/7(f) (West 2011) (exempting “[p]reliminary drafts, notes,
recommendations, memoranda and other records in which opinions are expressed, or policies
or actions are formulated”); Kan. Stat. Ann. § 45-221(a)(20) (West 2011) (exempting
“[n]otes, preliminary drafts, research data in the process of analysis, unfunded grant
proposals, memoranda, recommendations or other records in which opinions are expressed
or policies or actions are proposed”).

                                              7
{20} Second, the Sanchez decision hinged in large part on the lack of “finality” of the list.
Sanchez, 82 N.M. at 675-76, 486 P.2d at 611-12. The Court wrote, “[w]e do not consider
‘thought processes,’ that is, the offer of a contract, such a public record as would require
public inspection.” Id. at 675, 486 P.2d at 611. The Court reasoned,

       We would deny the right to inspect these records of the Board of Regents on
       the subject of salary contract negotiations before the task was completed. It
       would not seem fair that the general public should know the contents of an
       offer of salary to an individual conceivably prior to the receipt of the offer by
       the contemplated employee. . . . [W]e would not take away the right of the
       [p]etitioners to know about salary matters, but would merely suspend or defer
       the privilege of inquiry until the Board of Regents reaches its final
       conclusion, i.e., the culmination of the contract between the board and the
       individual.

Id. at 675-76, 486 P.2d at 611-12. We agree with the Attorney General that “[t]he [C]ourt
in Sanchez balanced the competing interests apparent in that case and decided that the right
to know was outweighed by policy considerations.” Although not called so by the Sanchez
Court, this analysis is essentially the “rule of reason,” later recognized in Newsome, 90 N.M.
at 797, 568 P.2d at 1243. This rule “requires the district court to balance “the fundamental
right of all citizens to have reasonable access to public records against countervailing public
policy considerations which favor confidentiality and nondisclosure.” The Daily Times,
2009-NMCA-057, ¶ 8 (internal quotation marks and citation omitted). In Newsome, the
Court wrote that “[u]ntil the Legislature gives us direction [as to draft documents], the courts
will have to apply the ‘rule of reason’ to each claim for public inspection as they arise.” 90
N.M. at 797, 568 P.2d at 1243. In Republican Party II, the Supreme Court held that
subsequent modification of IPRA rendered the “rule of reason” obsolete: “[t]he Legislature
has since responded to the [Newsome] Court’s request, obviating any need that existed for
application of the ‘rule of reason,’ by enumerating specific exceptions to disclosure[.]”
2012-NMSC-026, ¶ 16. Thus, as the Attorney General argues, Sanchez is “limited to its
facts as a rule of reason analysis, . . . . It is not a proclamation that draft documents are
always exempt from IPRA.”

{21} DOH next points to the Attorney General’s Guide and states that it is “harmonious
with Sanchez.” The Guide states,

       Even if related to the performance of their public duties, notes and other
       materials prepared or collected by public employees solely for their own use
       may not be public records. These preliminary materials do not share the
       degree of finality suggested by the terms “documents,” “papers” and “letters”
       in the definition of public records, and generally are not intended to
       perpetuate, formalize or communicate information for or on behalf of the
       public agency. . . . Thus, such materials generally will not be considered
       public records, provided employees create or use them solely for their own

                                               8
       convenience and unless the materials are expressly referenced in or attached
       to a clearly public document, such as a final report.

Guide, at 29. DOH’s reliance on the Attorney General’s Guide is misplaced. First, the
Guide is not binding on courts. Second, this language does not mean that draft documents
are exempt from IPRA. Rather, as the Attorney General asserts, the passage “clarif[ies] that
only notes and other materials prepared solely for an employee’s own use might not be
subject to IPRA . . . . This necessarily means that . . . some drafts are public records subject
to [IPRA].”

{22}   Third, the Guide states in the same paragraph that

       like information protected by the executive privilege . . ., dissemination [of
       drafts] could easily lead to misinformation or false conclusions about the
       public entity’s business. Anticipation of disclosure could unnecessarily
       hamper a public employee’s ability to do his or her job by discouraging or
       tempering the employee’s taking of notes, keeping research materials or
       experimenting with creative ideas in preliminary drafts of memoranda and
       letters. An agency’s effectiveness would be significantly undermined if its
       employees, worried that every scrap of paper recording their own
       impressions or notes could be disclosed publicly, limited what they wrote
       down in the course of performing their duties.

Id. (emphasis added). This explanation for why draft documents prepared for an employee’s
own use should not be disclosed echoes the reasoning behind the deliberative process
privilege, which “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 the formulation of policy.” Republican Party II, 2012-NMSC-026, ¶ 26
(internal quotation marks and citation omitted). This privilege was rejected by the Supreme
Court. Id. ¶ 38. Like Sanchez, the Guide does not support DOH’s argument that draft
documents are not public records.

{23} DOH’s third argument is that draft documents fall within IPRA’s catch-all exception
(“as otherwise provided by law”) because there are regulations exempting draft documents
in the New Mexico Administrative Code. See § 14-2-1(A)(8). It cites to numerous
provisions of the Code in support of its contention that “[t]he general scheme established in
the Administrative Code is that draft material . . . is considered a non-record.” See, e.g.,
1.13.3.7(Z) NMAC (6/30/2008); 1.18.308.7(H) NMAC (4/30/2012); 1.18.665.7(M) NMAC
(12/20/2010). The cited regulations derive from the Public Records Act. See NMSA 1978,
§§ 14-3-1 to -25 (1959, as amended through 2011); 1.13.3.3 NMAC (6/30/2008) (citing the
Public Records Act as the statutory authority for this regulation); 1.18.308.3 NMAC
(4/30/2008) (same); 1.18.665.3 NMAC (7/15/2010) (same). This argument is unavailing
because a document’s designation as a “non-record” for the purposes of the Public Records
Act has no impact on its status as a public record under IPRA.

                                               9
{24} The Public Records Act was enacted approximately twelve years after IPRA. See
Crutchfield v. N.M. Dep’t of Taxation & Revenue, 2005-NMCA-022, ¶ 23, 137 N.M. 26, 106
P.3d 1273. “[W]e presume that the Legislature was informed as to existing law, and that the
Legislature did not intend to enact a law inconsistent with any existing law.” Id. (alteration
in original) (internal quotation marks and citation omitted). Under this principle, we infer
that the Legislature did not intend to create a conflict between the two statutes, as did the
Newsome Court when it rejected explicitly any overlap between the Public Records Act and
IPRA. Newsome, 90 N.M. at 797, 568 P.2d at 1243. There is no conflict between the IPRA
and the Public Records Act definitions because the two statutes serve different purposes.
The regulations DOH cites govern whether and how long an agency must retain a document,
but do not address whether that document is a public record under IPRA while it is retained.
The Guide provides an instructive example: “[u]ntil it is erased, a tape recording of a board
meeting is used, maintained or held by or on behalf of the board and, therefore, constitutes
a public record. During this time, even if it is very short, the tape is subject to inspection.”
Guide, at 28; see State ex rel. Toomey v. City of Truth or Consequences, 2012-NMCA-104,
¶ 28, ___ P.3d ___.

{25} To the extent DOH argues that the Legislature implicitly endorsed exemption of draft
documents from public records by its failure to amend IPRA to address draft documents
explicitly, we disagree. DOH argues that the Legislature was aware of the “longstanding”
regulations exempting drafts from public records and therefore incorporated those
regulations into IPRA when it did not reject them. We agree with NMFOG that the fact that
the Legislature did not address the regulations promulgated pursuant to the Public Records
Act in amendments to IPRA is “both unsurprising and uninformative.” As discussed, the
Public Records Act and IPRA are very different statutes with different purposes. There was
no reason for the Legislature to address a conflict that does not exist.

{26} Finally, we note that a regulation may prohibit the release of records under IPRA
but only when it has the force of law.

       In most cases, a regulation or ordinance, by itself, may not be used to deny
       access to public records because it is not a “law” for purposes of the
       “otherwise provided by law” exception. However, according to the New
       Mexico Supreme Court, a regulation making certain records private may be
       proper if the regulation is authorized by a statute and is necessary to carry out
       the statute’s purposes. See City of Las Cruces v. Public Employee Labor
       Relations Bd., 121 N.M. 688, 917 P.2d 451 (1996).

Guide, at 21. In Public Employee Labor Relations Board, the authorizing statute in question
protected “the rights of public employees to collective bargaining and [ensured] that their
choice to do so remains private,” 121 N.M. at 691, 917 P.2d at 454, because the authorizing
statute specifically prohibited discouraging, interfering with, restraining, or otherwise
impeding employees’ rights to organize. Id. at 690, 917 P.2d at 453. Therefore, a regulation
preventing disclosure of a petition for representation was consistent with legislative intent

                                              10
and covered by the “as otherwise provided by law” exception in IPRA. Id. (internal
quotation marks and citation omitted). In this case, the purpose of the Public Records Act
is “to establish a system for preserving records.” Newsome, 90 N.M. at 797, 568 P.2d at
1243. This purpose is solely organizational. See § 14-3-6 (“The administrator shall establish
a records management program for the application of efficient and economical management
methods to the creation, utilization, maintenance, retention, preservation and disposal of
official records.”). Unlike the statute in Public Employee Labor Relations Board, there is
nothing in the Public Records Act that gives a regulation designating draft documents as
“non-records” the force of law in the sphere governed by IPRA. DOH does not direct us to
any regulation with the force of law that prohibits release of the draft letter in this case. We
conclude that the draft letter should be disclosed.

B.      Analysis of Retroactivity

{27} The Supreme Court did not indicate explicitly whether Republican Party II would
apply retroactively or prospectively. When such a statement is lacking, there is “a
presumption of retroactivity for a new rule imposed by a judicial decision in a civil case.”
Beavers v. Johnson Controls World Servs., Inc., 118 N.M. 391, 398, 881 P.2d 1376, 1383
(1994) (rejecting the “bright-line rule of retroactivity in all civil cases” set out in Harper v.
Virginia Dep’t of Taxation, 509 U.S. 86 (1993)). This presumption, however, “may be
overcome by a sufficiently weighty combination of one or more . . . factors.” Beavers, 118
N.M. at 398, 881 P.2d at 1383. These factors are: “(1) whether the case creates a new
principle of law that has been relied upon[,] (2) the prior history of the rule[,] and (3) the
inequity of retroactive application.” Stein v. Alpine Sports, Inc., 1998-NMSC-040, ¶ 9, 126
N.M. 258, 968 P.2d 769 (emphasis omitted). Reliance on the old rule is an important aspect
of both the first and third factors. See Beavers, 118 N.M. at 399, 881 P.2d at 1384. This
inquiry hinges partially on the degree of reliance: “[t]he greater the extent a potential
defendant can be said to have relied on the law as it stood at the time he or she acted, the
more inequitable it would be to apply the new rule retroactively.” Id. at 401-02, 881 P.2d
at 1386-87.

{28} DOH justified withholding the email string and draft letter on different grounds. It
withheld the email string on the basis that it was covered by the deliberative process
privilege and the draft letter on the ground that drafts are not subject to IPRA at all. Amicus
Attorney General argues that Republican Party II’s holding regarding the deliberative
process privilege should be applied prospectively. In contrast, DOH does not address
retroactivity of Republican Party II’s holding regarding the deliberative process privilege.
DOH instead focuses its retroactivity argument on whether a decision regarding whether
draft documents fall within IPRA’s purview should be applied retroactively. DOH’s
rationale for exempting draft documents from IPRA appears to rest in large part on “public
policy concerns that weigh against requiring disclosure of the draft . . . letter.” In other
words, it suggests a “rule of reason” analysis for why drafts should not be disclosed. It also
relies on “the same principles upon which [the deliberative process] privilege is grounded.”
We address each of these issues.

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1.      The Deliberative Process Privilege

{29} The preliminary inquiry in a retroactivity analysis is whether the case in question
announced a new rule. Stein, 1998-NMSC-040, ¶ 14. The Attorney General argues that
“[t]here is little doubt that the decision in Republican Party II overruled a clear precedent,
namely the use of executive privilege to shield documents from production under IPRA.”
He states that “[b]efore Republic[an] Party II, State agencies—including
[DOH]—frequently relied on the executive privilege as a basis for withholding documents
from production under IPRA.” We do not agree that Republican Party II stated a new rule
regarding the deliberative process privilege or overruled precedent on that issue.

{30} Republican Party II was the Supreme Court’s “first occasion to consider executive
privilege in the context of a public records request.” 2012-NMSC-026, ¶ 3. The Court
“h[e]ld emphatically that no deliberative process privilege exists under New Mexico law.”
Id. ¶ 42. In doing so, the Court examined First Judicial, in which the Court considered
executive privilege in the civil discovery context. Republican Party II, 2012-NMSC-026,
¶¶ 34-43; see First Judicial, 96 N.M. at 257, 629 P.2d at 333. The Court determined that
although First Judicial “used language consistent with both an executive communications
privilege and a deliberative process privilege,” it did not actually endorse the latter.
Republican Party II, 2012-NMSC-026, ¶ 40. In fact, First Judicial “reject[ed] . . . common
law privileges” such as the deliberative process privilege. Republican Party II, 2012-
NMSC-026, ¶ 38. Thus, the Supreme Court clarified that that privilege has never existed in
New Mexico and that the only privilege addressed in First Judicial was the executive
communications privilege. Republican Party II, 2012-NMSC-026, ¶ 40. The Court
“disavow[ed] First Judicial to the extent that it could be read to support the adoption of the
deliberative process privilege,” but did not overrule it as to its recognition of “a limited form
of executive privilege derived from the constitution.” Republican Party II, 2012-NMSC-
026, ¶¶ 42, 43.

{31} We conclude that Republican Party II did not announce a new rule regarding the
deliberative process privilege. Thus, we need not assess any other Beavers factors.
Republication Part II’s holding is retroactive. DOH improperly withheld the email string
and the draft letter to the extent that DOH withheld the letter based on a rationale grounded
in the deliberative process privilege.

2.      The Rule of Reason

{32} Next we address DOH’s arguments regarding retroactive or prospective application
of Republican Party II to withholding of draft documents. To the extent that DOH and amici
argue that this Court’s holding in the present case regarding the draft letter states a new rule,
we disagree. Republican Party II overruled cases applying the “rule of reason” to justify
withholding records and stated that “courts now should restrict their analysis to whether
disclosure under IPRA may be withheld because of a specific exception contained within

                                               12
IPRA, or statutory or regulatory exceptions, or privileges adopted by this Court or grounded
in the constitution.” 2012-NMSC-026, ¶ 16. We are bound by this admonition. Thus, our
holding that there is no specific exception, statute, regulation, or privilege exempting draft
documents is not a new rule—it is an application of the rule set out in Republican Party II.
Consequently, our analysis is of the retroactivity of that rule.

{33} The first Beavers factor has two parts. The first is whether the case to be applied
announced a new rule. Stein, 1998-NMSC-040, ¶ 10. It is clear that Republican Party II
expressly overruled cases in which the “rule of reason” was endorsed and limited the scope
of what documents are exempt from IPRA. 2012-NMSC-026, ¶ 16. The second part of the
first factor is the degree to which DOH relied on the precedent overruled by Republican
Party II. Padilla v. Wall Colmonoy Corp., 2006-NMCA-137, ¶ 14, 140 N.M. 630, 145 P.3d
110. DOH argues that “there has been widespread understanding by public bodies such as
the [DOH] that preliminary drafts are non-records.” It argues that this understanding derives
from IPRA’s “as otherwise provided by law” exception, Sanchez, and the Attorney General’s
Guide.

{34} We begin our assessment of reliance by noting that reliance cannot be shown by
simply stating that the law before the new rule was different. “[W]e have difficulty with the
circular argument that the rule is not retroactive because pre-rule conduct was lawful—i.e.,
because the rule is not retroactive.” Beavers, 118 N.M. at 401, 881 P.2d at 1386. Instead,
we must delve into the “degree of reliance that persons affected . . . by the rule may have
placed on the state of the law antedating the rule.” Id. For example, in Beavers, the Court
concluded that in the context of an intentional tort case “it is hard to imagine that a potential
defendant plans his or her conduct with rules of liability or nonliability in mind.” Id. at 400,
881 P.2d at 1385. In contrast, here, it is reasonable and likely that DOH or another agency
sought information on “the state of the law” in order to act in accordance with it. As we
have discussed, however, the sources on which DOH claims to have relied do not declare
that draft documents are exempt from IPRA. As we noted above, the Administrative Code
addresses the Public Records Act, not IPRA. The Attorney General’s Guide is careful to
distinguish documents for personal use from draft documents subject to IPRA. And Sanchez
dealt with a version of IPRA that has been superseded, as acknowledged over thirty years
ago in Newsome. Reliance on these sources to withhold documents simply because they are
drafts is therefore misplaced. Although we recognize that a new rule was announced, we
determine that the first factor weighs in favor of retroactivity. See Beavers, 118 N.M. at 400,
881 P.2d at 1385 (stating that although a new rule was announced, the first factor weighed
in favor of the presumption because a tortfeasor could not be said to rely on the “claimed
absence of potential liability for [his] conduct”).

{35} We turn now to the second Beavers factor, in which we assess “whether retrospective
operation will further or retard” the purposes of the new decision. 118 N.M. at 398, 881
P.2d at 1383 (internal quotation marks and citation omitted). The Supreme Court was clear
that its holding was required by the Legislature’s intent to promote open government. See
§ 14-2-5; Republican Party II, 2012-NMSC-026, ¶¶ 12-13. The purposes of Republican

                                               13
Party II’s holdings are, therefore, coextensive with the purpose of IPRA itself, which is “to
ensure that New Mexicans have the greatest possible access to their public records.” San
Juan Agric. Water Users Ass’n v. KNME-TV, 2011-NMSC-011, ¶ 38, 150 N.M. 64, 257 P.3d
884. Since, after Republican Party II, a requester could simply renew his or her request for
previously withheld documents in order to access them, retroactive application is not
necessary to this overarching goal. We imagine that some cases currently in litigation may
be resolved this way.

{36} We do not end our analysis there, however, because to do so ignores the function of
IPRA’s enforcement actions in achieving open government. These provisions serve to
promote open government for all, not just for individual litigants, and are integral to the
statute’s purpose. See §§ 14-2-11, -12.; San Juan Agric. Water Users Ass’n, 2011-NMSC-
011, ¶ 12 (“IPRA includes remedies to encourage compliance and facilitate enforcement. .
. . By giving enforcement power to any person whose written request has been denied,
IPRA’s provisions create ‘private attorneys general’ for ‘more effective and efficient
enforcement’ of IPRA than would be possible if only the attorney general . . . could enforce
the statute.”). In addition, it ignores an abiding principle that underlies the presumption of
retroactivity: that similarly situated people should be treated similarly. See Beavers, 118
N.M. at 397, 881 P.2d at 1382. A finding of pure prospective application would deprive
current litigants of their right under IPRA to seek damages, costs, and attorney fees. We are
persuaded that the second factor is not strong enough to overcome the presumption of
retroactivity.

{37} Finally, DOH argues that “[r]etroactive application may also place some agencies in
the untenable position of facing claims that they erroneously responded to previous IPRA
requests” when they responded in good faith based on the cases and regulations addressed
above. DOH argues that “retroactive application creates the potential for unforeseen liability
for civil damages . . . going back several years.” But the practical impact of retroactive
application appears to be limited. The universe of litigants is limited to five categories.
First, there are those who will request records after Republican Party II. These requesters
will have the benefit of that decision regardless of whether it applies retroactively or
prospectively. Beavers, 118 N.M. at 397 n.7, 881 P.2d at 1382 n.7. Second are those who
requested records, were denied, and lost an enforcement action. Litigants are entitled to
damages under IPRA only when they prevail in an enforcement action. Section 14-2-12(D)
(“The court shall award damages, costs and reasonable attorneys’ fees to any person whose
written request has been denied and is successful in a court action to enforce the provisions
of the [IPRA].” (emphasis added)); Derringer v. State, 2003-NMCA-073, ¶ 10, 133 N.M.
721, 68 P.3d 961. These claims are likely precluded by res judicata. See Federated Dep’t
Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981) (“Nor are the res judicata consequences of
a final, unappealed judgment on the merits altered by the fact that the judgment may have
been wrong or rested on a legal principle subsequently overruled in another case.”); Whenry
v. Whenry, 98 N.M. 737, 741, 652 P.2d 1188, 1192 (1982). Even if they are not, requesters
are more likely to simply request the record again than to seek to re-open litigation. In any
case, an agency could forestall an enforcement action by providing the requested records.

                                             14
See Derringer, 2003-NMCA-073, ¶ 13 (“Our question is whether [IPRA] allows damages
when a lawsuit is filed nearly a year after compliance [by the agency]. We have determined
that it does not.”).

{38} The third category consists of those who requested records over four years ago, were
denied, and did not initiate an enforcement action. Enforcement actions by this group are
barred by the statute of limitations. See NMSA 1978, § 37-1-4 (1880). Fourth are those who
requested documents less than four years ago, were denied, and have not yet filed suit.
Again, an agency could prevent a suit by providing the records. The risk of “unforeseen
liability” for claims by these four types of requesters is minimal.

{39} Finally, there are those whose enforcement actions are ongoing, including Appellant.
In these cases it may be possible for an agency to avoid some damages by immediately
providing the requested draft records and thereby coming into compliance with the new rule.
See Derringer, 2003-NMCA-073, ¶ 10. DOH argues that retroactive application “will likely
have substantially unfair and inequitable impact on government agencies that have relied on
the interpretation of the IPRA in the past.” The Attorney General argues that “[i]t is . . .
inequitable to retroactively apply money damages to [DOH] conduct that was entirely legal
and proper at the time it was undertaken.” We are not convinced that retroactive application
would result in an inequity, since we have determined that the sources on which DOH relied
did not support its position regarding drafts and Republican Party II held that New Mexico
has never recognized the deliberative process privilege. Furthermore, the pool of possible
litigants on these issues appears to be relatively small. If there were inequity to DOH, it is
counterbalanced by the inequity that would occur were we to apply the new rule purely
prospectively because Appellant incurred costs to pursue her rights under IPRA. As
discussed, the IPRA enforcement provisions permit requesters to litigate on behalf of all
citizens, which serves IPRA’s goals of open government. See §§ 14-2-11, -12; San Juan
Agric. Water Users Ass’n, 2011-NMSC-011, ¶ 12. If Appellant were denied the opportunity
to pursue these damages, these purposes of IPRA would be undermined. Therefore, even
if there were inequity to DOH, this factor weighs in favor of retroactivity because it serves
the purposes of IPRA and because state agencies “[are] in a better position to ensure
meaningful compliance with the law” and, therefore, “it [is] more equitable to let the
financial detriments be borne by [DOH]” than by Appellant, “who [is] the Legislature’s
intended beneficiar[y].” Jordan v. Allstate Ins. Co., 2010-NMSC-051, ¶ 29, 149 N.M. 162,
245 P.3d 1214.

{40} We conclude that “[t]he three factors . . . do not . . . outweigh the presumption of
retroactivity associated with a judicial decision” regarding IPRA’s application to draft
documents. Beavers, 118 N.M. at 402, 881 P.2d at 1387. DOH is liable for wrongful
withholding of the draft letter.

C.     Damages, Costs, and Attorney Fees




                                             15
{41} Given that we are reversing the judgment in favor of DOH and remanding for further
proceedings, we determine that it is premature to address the issue of damages, fees, and
costs. The district court did not consider these issues on their merits given its prior ruling.
It is best to allow the district court to rule on them in the first instance in light of our
decision.

III.   CONCLUSION

{42} We reverse the district court as to both the email string and draft letter because
neither the deliberative process privilege nor the rule of reason, on which its grant of
summary judgment was based, are recognized in New Mexico. We remand for further
proceedings consistent with this Opinion.

{43}   IT IS SO ORDERED.

                                               ____________________________________
                                               MICHAEL D. BUSTAMANTE, Judge

WE CONCUR:

____________________________________
CYNTHIA A. FRY, Judge

____________________________________
MICHAEL E. VIGIL, Judge

Topic Index for Edenburn v. N.M. Dep't of Health, No. 31,285

CIVIL PROCEDURE
Writs

GOVERNMENT
Executive Privilege
Public Records

MISCELLANEOUS STATUTES
Inpsection of Public Records Act

REMEDIES
Writ of Mandamus




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