New Mexico

Open Government Guide

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Author

Alexandra Cervantes
Christina C. Sheehan
Modrall, Sperling, Roehl, Harris & Sisk, P.A.
500 Fourth Street, Suite 1000
Post Office Box 2168
Albuquerque, New Mexico 87103-2168

Patrick J. Rogers
Patrick J. Rogers, LLC
20 First Plaza Center NW, Suite 725
Albuquerque, New Mexico 87102

Last updated August 2021

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Foreword

In recent years, New Mexico has provided a generally hospitable climate for access to public records. In 1993, because of the efforts of the New Mexico Press Association and the New Mexico Foundation for Open Government, the Legislature enacted some significant improvements to the Inspection of Public Records Act. The 1993 legislation provides a broad definition of public records to include virtually all documents or information "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." NMSA 1978 § 14-2-6(G) (2018).

The 1993 amendments created both a significant presumption that all records are public and that access to public records is an essential part of the duties of public officers and employees:

Recognizing that a representative government is dependent upon an 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. It is the further intent of the legislature, and it is declared to be the public policy of this state, that to provide persons with such information is an essential function of a representative government and an integral part of the routine duties of public officers and employees.

NMSA 1978 § 14-2-5 (1993). The same legislation created procedures similar to the federal Freedom of Information Act. For example a public official (custodian of the records) must respond to a written request within three (3) business days. NMSA 1978 § 14-2-8(D) (2009).

The improvements in both the open records and open meetings provisions in New Mexico law can be traced in large part to a private organization called the New Mexico Foundation for Open Government, known as NMFOG. This organization, although receiving most of its funding from media organizations, has broad public membership. NMFOG has been aggressive in supporting requests for public records through educational seminars, letters to public officials, and litigation. NMFOG's Executive Director is Melanie Majors. NMFOG's contact information is: New Mexico Foundation for Open Government, Inc., 2333 Wisconsin St. NE, Albuquerque, NM 87110, telephone: 505-764-3750.

The New Mexico Attorney General publishes compliance guides for the Inspection of Public Records Act and the Open Government Act, and copies are available from the Attorney General's office: Civil Division, Office of the Attorney General, State of New Mexico, Bataan Memorial Building, P.O. Drawer 1508, Santa Fe, New Mexico 87504-1508, telephone 505-490-4060 or online at: http://www.nmag.gov/publications.aspx.

The guides provide analyses of the public records statutes, examples of what is permissible under the Acts, and some public records form letters. The New Mexico Press Association (NMPA) and NMFOG drafted portions of the commentary and the appendices to the guides which contain analyses of the Acts, deadlines applicable to the Acts, and form letters to request public records.

History of New Mexico Open Records Law: Even in the absence of statutory provisions, the common law right of access to inspect at least some public records, has been recognized in New Mexico since at least 1925. See N.M. Op. Att'y Gen. 25-26 (1925) ("House journal and bills are public records and should be open to public inspection at reasonable hours.").

No appellate court decision defined the right of common law access until passage of the state's first Open Records Law in 1947. The law limited access to "citizens," contained a few exceptions, no definition of what constituted a public record; the 1947 Act did provide a penalty, including a possible jail term for violations.

In 1973 additional exceptions to the right of inspection were added. In 1977, the New Mexico Supreme Court addressed many of the ambiguities and shortcomings of the statute and decided the case of Newsome v Alarid, 1977-NMSC-076, 90 N.M. 790, 797, 568 P.2d 1236 (NM 1977). In some broad and sweeping language the Court endorsing the right to inspect public records, holding: “… that a citizen has a fundamental right to have access to public records. The citizen’s right to know is the rule and secrecy is the exception. Where there is no countervailing public policy, the right to inspect public records must be freely allowed.” Id. at ¶34. The Court called on the Legislature to delineate records that should be public and those that should remain confidential. In the interim, the Court borrowed from other states and created a “rule of reason” to be applied to each claim for public inspection. Id.

In 1993 the Legislature answered the call and created a private right of action allowing prevailing citizens to collect court costs, damages, and attorneys' fees. The 1993 overhaul was significant, establishing procedures similar but in many ways superior to the federal Freedom of Information Act starting with a presumption that all records are public. The 2011 amendments include a requirement that records custodians respond to a public records request in the same medium, electronic or paper, in which they receive the request. NMSA 1987 § 14-2-7(B) (2011). Additionally, if the public record is available in electronic format and is requested in an electronic format, the public body must provide it in an electronic format. NMSA 1987 § 14-2-9(B) (2013). Public bodies may charge actual costs of downloading copies of public records to a storage device and the actual cost of the storage device. NMSA 1987 § 14-2-9(C)(3) (2013).

Public bodies are required to post a notice informing the public of the right to inspect records and the procedures for copying and inspecting records on the publicly accessible website with contact information for the public records custodian. NMSA § 14-2-7(E). In 2011 the legislature included a new section on “protected personal identifier information” NMSA § 14-2-1.1 (2011). Public bodies may redact “protected personal identifier information” before providing a public record. Id. “Protected personal identifier information” is defined as: (1) a social security number; (2) all but the year of a person’s birth date; (3) all but the last four digits of a taxpayer identification number, financial account number, or driver license number. NMSA § 14-2-6(E).

Open Meetings: The New Mexico Open Meetings Act is contained at NMSA 1978, sections 10-15-1 through 10-15-4 (1974, as amended through 2013). The first Open Meetings Act was enacted in 1959 and significant amendments were added in 1993. The provisions added in 1993 include a section, just like the Inspection of Public Records Act, creating a presumption that meetings should be open:

In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be 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 those officers and employees who represent them. The formation of public policy or the conduct of business by vote shall not be conducted in closed meeting. All meetings of any public body except the legislature and the courts shall be public meetings, and all persons so desiring shall be permitted to attend and listen to the deliberations and proceedings. Reasonable efforts shall be made to accommodate the use of audio and video recording devices.

NMSA § 10-15-1(A). The 1993 changes also required (1) strict procedures for telephone conference meetings; (2) meeting notices must include an agenda; and (3) policymaking bodies must keep written minutes, including a statement that any closed session was limited to the subject announced in the motion or notice of closure. See §§ 10-15-1(C), (F), (G).

In 1997, NMPA and NMFOG successfully pushed an important amendment to provide some teeth for the formerly toothless enforcement provision. The 1997 amendment provided for a mandatory award of costs and reasonable fees to a successful plaintiff in a suit to enforce the Open Meetings Act. § 10-15-3(C).

NMPA and NMFOG efforts to open up the secret legislative conferences were partially successful. An amendment to the Open Meeting Act in 2009 provides that “all meetings of any committee or policy-making body of the legislature held for the purpose of discussing public business or taking any action within the authority of…the body are declared to be public meetings open to the public at all times…” § 10-15-2(A).

The New Mexico Attorney General's office has published the Eighth Edition of the Open Meeting Act Compliance Guide. This guide includes all amendments to the Act passed during the 2015 legislative session. Copies are available from the Civil Division, Office of the Attorney General, State of New Mexico, Bataan Memorial Building, P.O. Drawer 1508, Santa Fe, New Mexico 87504-1508, telephone 505-490-4060 or online at: http://www.nmag.gov/publications.aspx.

The New Mexico Foundation for Open Government has been particularly active in pursuing compliance with the Open Meetings Act. Seminars, expert testimony and analysis, and the occasional lawsuit have resulted in a much better environment for open government in New Mexico. For additional information, contact NMFOG's Executive Director, Melanie Majors. NMFOG's contact information is: New Mexico Foundation for Open Government, Inc., 2333 Wisconsin St. NE, Albuquerque, NM 87110, telephone: 505-764-3750; email: director@nmfog.org; online at https://nmfog.org/.

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Open Records

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I. Statute

Procedures are similar to the Federal Freedom of Information Act.

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A. Who can request records?

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1. Status of requester

Every person has the right to inspect any public record. NMSA 1978 § 14-2-1 (2011).

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2. Purpose of request

No person requesting records shall be required to state the reasons for inspecting the records. NMSA 1978 § 14-2-8(C) (2009).

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3. Use of records

NMSA 1978, section 14-2A-1 (1993) purports to prohibit attorneys, healthcare providers, and their agents from inspecting, copying or using police reports or information obtained from police reports to solicit victims or relatives of victims. Consistent with pronouncements by the Supreme Court (Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995)), the New Mexico State Bar's ban on direct mail advertising by attorneys to accident victims is also unconstitutional. Revo v. Disciplinary Bd., 106 F.3d 929, 936 (10th Cir. 1997).

Additionally, NMSA 1978, section 14-3-15.1(C)(2) (1995) purports to limit the use of "computerized database[s] of public records" for any political or commercial purpose "unless the purpose and use is approved in writing by the state agency that created the database." This provision is of questionable constitutionality as well. See Crutchfield v. N.M. Dep’t of Taxation & Revenue, 2005-NMCA-022, 137 N.M. 26, 106 P.3d 1273 (NM 2005). (The appellate court declined to hear NMFOG's constitutional challenge on the basis that the plaintiff did not properly preserve the issue at the trial level.)

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4. Can an individual request records on behalf of a third party or organization?

The Act does not require any explanation of the purpose of the request and therefore it is clear an individual can request records on behalf of a third party or organization.

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B. Whose records are and are not subject to the Act

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1. Executive branch

The New Mexico Inspection of Public Records Act specifically provides that the executive branch is subject to the Act. NMSA 1978 § 14-2-6(F) (2013). However, in addition to all of the statutory exceptions noted below, the Supreme Court of New Mexico has recognized a constitutionally-based “executive privilege.” Republican Party of N.M. v. N.M. Taxation & Revenue Dep’t, 2012-NMSC-026, ¶ 43, 283 P.3d 853 (NM 2012). In Republican Party, the Supreme Court rejected the common law “deliberative privilege” and defined a qualified privilege similar in scope to the presidential communications privilege. Id. ¶¶ 18-50 (“We see no basis for sanctioning an executive communications privilege broader than the privilege afforded to the President of the United States.”).

New Mexico’s executive privilege is available only to the Governor and does not extend to “cabinet agencies” that are under the control of the Governor. Id. ¶ 47. To fall within the scope of the privilege, the communication at issue must “have been authored, or solicited and received, by either the Governor or an immediate advisor with broad and significant responsibility for assisting the Governor with his or her decision making.” Id. ¶ 46 (citations omitted). The executive privilege is further limited to “documents that are communicative in nature” and “concern the Governor’s decision making in the realm of his or her duties.” Id. ¶¶ 44-45. The communications must “relate to the Governor’s constitutionally-mandated duties. Id. ¶ 45.

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2. Legislative bodies

Although the Legislature is subject to the Inspection of Public Records Act, NMSA 1978 § 14-2-6(F), (2013), the Legislature maintains that Legislators’ emails are not public, pursuant to Joint Rules of the House and Senate (Rule 12-1).

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3. Courts

The 1993 amendments specifically included the courts by NMSA 1978 § 14-2-6(F) (2013). But debate exists as to whether the Legislature or the Supreme Court, by rule, has jurisdiction over court records pursuant to separation of powers limitations. The courts have jealously guarded their prerogative to determine access to their records; no reported decisions exist construing access to court records pursuant to the Inspection of Public Records Act. But see, N.M. Op. Att'y. Gen. 79-14 (1979) (stating that the New Mexico Supreme Court and Court of Appeals must make their current and past opinions available for inspection); State, ex rel. N.M. Press Ass’n. v. Kaufman, 1982-NMSC-060, 648 P.2d 300 (1982) (the names of jurors in criminal cases are public records).

The right of access to court records is recognized by both statute and Court rules. NMSA 1978, section 14-2-6 (F)defines “public body” to include the judicial branch of government. New Mexico State Court Rule 1-079(A), entitled “Presumption of public access; scope of the rule,” provides that court records are subject to public access unless sealed by order of the court or otherwise protected from disclosure under the provisions of the rule. There is also a common law right of access to court records recognized by both the U.S. Supreme Court and the Tenth Circuit. See, e.g., Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978); Helm v. Kansas, 656 F.3d 1277, 1292 (10th Cir. 2011). And although the Tenth Circuit has not squarely addressed the First Amendment right of access to civil court records, “all the other circuits that have considered the issue” have concluded “that the First Amendment guarantees a qualified right of access not only to criminal but also to civil trials and to their related proceedings and records.” N.Y. Civil Liberties Union v. N.Y. City Transit Auth., 652 F.3d 247, 258 (2d Cir. 2011). Indeed, the Tenth Circuit has remained agnostic on the issue. It has twice assumed, without deciding, that there is a constitutional right of access to court documents, and that such a right would be governed by the First Amendment standard for public access to criminal trials and proceedings set forth in Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986). See United States v. McVeigh (In re Dallas Morning News), 119 F.3d 806, 811-12 (10th Cir. 1997); United States v. Gonzales, 150 F.3d 1246, 1255-56 (10th Cir. 1998).

On February 20, 2017, the New Mexico Supreme Court adopted rules governing access to digitalized court records. The SOPA system (Secured Odyssey Public Access) addresses who may access court records, how to access court records, and documents and proceedings that are not public. The new rules and procedures raise a number of First Amendment and open records issues, but they have not been tested. NMSC Rule 17-8500-001, February 20, 2017.

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4. Nongovernmental bodies

The definition of “public body” contained in the Inspection of Public Records Act provides that all advisory boards, commissions, committees, agencies, or entities created by the Constitution or any branch of government that receives any public funding are subject to the Act. NMSA 1978 § 14-2-6(F) (2018). The New Mexico Court of Appeals however, has adopted a totality of factors test for determining whether a private entity is subject to the Inspection of Public Records Act. State ex rel Toomey v. City of Truth or Consequences, 2012-NMCA-104, ¶ 22. Though no single factor is determinative, the factors include “the level of public funding,” the “commingling of funds,” and “for whose benefit the private entity is functioning.” Id. ¶¶ 13, 22.

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5. Multi-state or regional bodies

Presumptively open. See N.M. Op. Att'y Gen. 90-27 (1990). The determining factor, according to the Attorney General, is whether the body has been "cloaked with some policy-making and decision-making powers." (Interpreting the Open Meetings Act, similar provisions.) Similarly, the presumption created in the 1993 amendments that all persons are entitled "to the greatest possible information regarding the affairs of government and official acts of public officers and employees," NMSA 1978 § 14-2-5 (1993), tilts the field in favor of disclosure from both the state and regional bodies that receive "any public funding." NMSA 1978 § 14-2-6(F) (2018).

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6. Advisory boards and commissions, quasi-governmental entities

Advisory boards, commissions, committees, agencies or entities created by the constitution or any branch of government that receives any public funding, are “public bodies” within the meaning of the Act. Accordingly, their records are subject to review under the Act. NMSA 1978 § 14-2-6(F).

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7. Others

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C. What records are and are not subject to the act?

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1. What kinds of records are covered?

Public records is given a very broad definition: "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." NMSA 1978 § 14-2-6(G) (2018).

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2. What physical form of records are covered

Information in any form, regardless of physical form or characteristics, is considered a public record. NMSA 1978 § 14-2-6(G) (2018).

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3. Are certain records available for inspection but not copying?

No. All records subject to inspection may be copied. E-mail and "computer data" are subject to the Act. NMSA 1978 § 14-2-9 (2018).

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4. Telephone call logs

Telephone logs are available under the broad definition of public record contained in NMSA 1978 Section 14-2-6(G)(2013) which includes “all documents … tapes … recordings and other materials, regardless of their physical form.”

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5. Electronic records (e.g., databases, metadata)

Electronic mail is available under the broad definition of public record contained in NMSA 1978 Section 14-2-6(G) (2013), which includes “all documents… recordings and other materials, regardless of their physical form.” See generally American Civil Liberties Union of N.M. v. Duran, 2016-NMCA-063 (”Email correspondence by state employees constitute a public record as defined in the statute.”); Brenner v. Bd. of Cty. Comm’rs, No. 18-478 KG/KBM, 2019 WL 1060812 (D.N.M. 2019): Dunn v. New Mexico Dep't of Game & Fish, 2020-NMCA-026, 464 P.3d 129 (The e-mail addresses of approximately 300,000 applicants for hunting licenses during a two-year period were ruled to be public record).

A District Court in New Mexico held that the personal Facebook of a public official is a public forum, and posts “created and received” for “public business” are “subject to the IPRA inspection requirements.” Swanson v. Griffin, No. CV 20-496 KG/GJF, 2021 WL 930615, at *7 (D.N.M. Mar. 11, 2021). This included both posts made by the official and messages received. Id. However, the contents of an officeholder’s campaign social media website are not public records of a public body within the scope of IPRA. Pacheco v. Hudson, 2018-NMSC-022, ¶¶ 34-36.

The Public Records Act states that information contained in information systems or computer databases shall be a public record. NMSA 1978 §§ 14-3-15.1 and 14-3-18(C). There is no statutory or case law indicating specifically whether software is included.

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a. Can the requester choose a format for receiving records?

Yes. "Public records" is broadly defined, NMSA 1978 § 14-2-6(G) (2013), and no specific restrictions as to the requested format exist, but the public body has discretion when responding to a request for public information in a certain format. NMSA 1978 § 14-2-9(A) (2013) allows the public body to provide a hard copy partial printout of data containing the public information if "necessary to preserve the integrity of the computer data or the confidentiality of exempt information." A records custodian is required to provide a copy of a public record in electronic format if the “public record is available in electronic format and an electronic copy is specifically requested.” NMSA 1978 § 14-2-9(B) (2011). A custodian is only required to provide an electronic record in the file format in which it exists at the time of the request. Id. Additionally, NMSA 1978 § 14-3-15.1(A) (1995) provides specifically that "information contained in information systems databases shall be a public record," but some restrictions and variations on access to this information exist, including the payment of a "reasonable fee." See also NMSA § 14-3-18 (2005), (statute regarding county and municipal database information). The New Mexico Court of Appeals has held that a public agency has no duty to produce computer database records in electronic format if the party requesting the information is unwilling to enter into an agreement as set forth by § 14-3-15.1(C). Crutchfield v. N.M. Dep't. of Taxation and Revenue, 2005-NMCA-22, ¶¶ 18-27,106 P.3d 1273.

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b. Can the requester obtain a customized search of computer databases to fit particular needs

The Inspection of Public Records Act specifically provides that the Act should not be construed to require a public body to create a public record. NMSA 1978 § 14-2-8(B) (2009). Under the specific computer database statutes, § 14-3-15.1 and § 14-3-18, a customized search is discretionary. The 2011 amendments specifically states a custodian “shall” provide a copy of a public record in electronic format if the public record is available in electronic format but is only required to provide the electronic record in the file format in which it existed at the time of the request. NMSA 1978 § 14-2-9(B) (2011).

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c. Does the existence of information in electronic format affect its openness?

No. The Inspection of Public Records Act provides a very broad definition of public records without regard to physical form or characteristics. NMSA 1978 § 14-2-6(G)(2013). The 2011 amendments specifically states a custodian “shall” provide a copy of a public record in electronic format if the public record is available in electronic format. NMSA 1978 § 14-2-9(B), (2011). On the other hand, § 14-3-15.1 and § 14-3-18, which address information contained in information system databases, are more restrictive, and no reported appellate decisions or Attorney General's opinions indicate how these two statutes might be reconciled. The better view is that access to public records is very broad, but access in a specific form or format may be restricted.

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d. Online dissemination

A county or municipality may allow users to access its network system to search and retrieve geographic information from a computer database and may charge reasonable fees for such online dissemination. NMSA 1978 § 14-3-18(G) (2005). It is unclear whether this provision allows governmental entities to charge for other information distributed via websites; however, many counties and municipalities in New Mexico maintain websites containing electronic records in various forms.

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6. Email

Electronic mail is available under the broad definition of public record contained in NMSA 1978 Section 14-2-6(G) (2013), which includes “all documents… recordings and other materials, regardless of their physical form.” See generally American Civil Liberties Union of N.M. v. Duran, 2016-NMCA-063 (”Email correspondence by state employees constitute a public record as defined in the statute.”); Brenner v. Bd. of Cty. Comm’rs, No. 18-478 KG/KBM, 2019 WL 1060812 (D.N.M. 2019); Dunn v. New Mexico Dep't of Game & Fish, 2020-NMCA-026, 464 P.3d 129 (The e-mail addresses of approximately 300,000 applicants for hunting licenses during a two-year period were ruled to be public record).

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7. Text messages and other electronic messages

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A District Court in New Mexico held that the personal Facebook of a public official is a public forum, and posts “created and received” for “public business” are “subject to the IPRA inspection requirements.” Swanson v. Griffin, No. CV 20-496 KG/GJF, 2021 WL 930615, at *7 (D.N.M. Mar. 11, 2021). This included both posts made by the official and messages received. Id. . However, the contents of an officeholder’s campaign social media website are not public records of a public body within the scope of IPRA. Pacheco v. Hudson, 2018-NMSC-022, ¶¶ 34-36.

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9. Computer software

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10. Can a requester ask for the creation or compilation of a new record?

Yes, but the custodian has no obligation to “create” a new record. NMSA § 14-2-8(B)(2009).

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D. Fee provisions

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1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

Public bodies may not charge for providing records for inspection but may charge a "reasonable fee for copying public records," not to exceed $1 per page for documents 11" x 17" or smaller. NMSA 1978 § 14-2-9(C)(1)-(2) (2013). The Attorney General has confirmed that the fee is limited to the actual cost of copying. Public bodies may charge actual costs associated with downloading copies of public records to a computer disk or storage device, including the actual cost of the storage device. NMSA 1978 § 14-2-9(C)(3) (2013).

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2. Particular fee specifications or provisions

By statute, a custodian may charge (only) reasonable fees for copying and shall not charge a fee for the cost of determining whether any public record is subject to disclosure. NMSA 1978 § 14-2-9(C)(1), (6) (2013). This has been commonly interpreted to prohibit a fee for a search or an inspection, although there is no written appellate decision, presumably because of the relatively clear statutory provisions. A public body is limited to a "reasonable fee for copying public records," not to exceed $1 per page for documents 11" x 17" or smaller. NMSA 1978 § 14-2-9(C)(2) (2013).

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3. Provisions for fee waivers

No provisions exist, and arguably a fee waiver may be unconstitutional pursuant to the New Mexico Anti-Donation clause. See N.M. Const. art. IX, § 14 (“Neither the state nor any county . . . shall directly or indirectly lend or pledge its credit or make any donation to or in aid of any person, association or public or private corporation.”).

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4. Requirements or prohibitions regarding advance payment

A public body "may require advance payment of the fees." NMSA 1978 § 14-2-9(C)(5) (2013).

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5. Have agencies imposed prohibitive fees to discourage requesters?

Since the enactment of the 1993 amendments, all such reported attempts have been unsuccessful.

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6. Fees for electronic records

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E. Who enforces the Act?

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1. Attorney General's role

The Attorney General or District Attorney in the jurisdiction has authority to enforce the Inspection of Public Records Act. NMSA 1978 § 14-2-12(A)(1) (1993). Any person whose request has been denied may enforce the Act. § 14-2-12(A)(2) (1993). A previously unnamed principal may enforce Inspection of Public Records Act, either directly in its own name or through its agent. San Juan Agric. Water Users Ass'n v. KNME-TV, 2011-NMSC-11, ¶¶ 29-36, 150 N.M. 64, 257 P.3d 884.

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2. Availability of an ombudsman

Not available.

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3. Commission or agency enforcement

No authority.

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F. Are there sanctions for noncompliance?

Sanctions for noncompliance are damages, court costs, and reasonable attorneys' fees which "shall" be awarded. NMSA 1978 § 14-2-12(D) (1993). Damages include compensatory and actual damages but not punitive or statutory damages. Faber v. King, 2015-NMSC-015, 348 P.3d 173.

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G. Record-holder obligations

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1. Search obligations

The statute provides a very strong statement in support of access to public records:

Recognizing that a representative government is dependent upon an 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. It is the further intent of the legislature, and it is declared to be the public policy of this state, that to provide persons with such information is an essential function of a representative government and an integral part of the routine duties of public officers and employees.

NMSA 1978 § 14-2-5 (1993).

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2. Proactive disclosure requirements

Numerous state agencies have reporting requirements for certain categories of information. Although these requirements and categories are too numerous to list here, one particularly important source for agency information is the Sunshine Portal. The Portal was created in 2011 pursuant to the Sunshine Portal Transparency Act, NMSA 1978 §§ 10-16D-1 et seq., to provide public access to state government budgets, expenditures, revenue and specific public school district information, and to make such information accessible on one central website. New Mexico Sunshine Portal, http://sunshineportalnm.com/ (July 10, 2019).

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3. Records retention requirements

NMSA 1978 §§ 14-3-15.1 et seq. do not provide for specific retention requirements; however, individual agencies maybe be required to retain records for a certain amount of time. See Implementation Guide from Commission of Public Records, New Mexico State Records Center and Archives.

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4. Provisions for broad, vague, or burdensome requests

NMSA 1978, Section 14-2-8(c) requires that any person making a request for public records identify the records sought with reasonable particularity. Courts have interpreted reasonable particularity. The Attorney General’s IPRA Guide (“Guide”) specifies that “reasonable particularity” does not require that a person identify the exact record sought. See Hector Balderas, IPRA Guide 33 (8th ed. 2015). Instead, it requires that the description provided be sufficient to “enable the custodian to identify and find the requested record.” Id.

NMSA 1978, Section 14-2-10 provides: “If a custodian determines that a written request is excessively burdensome or broad, an additional reasonable period of time shall be allowed to comply with the request. The custodian shall provide written notification to the requester within fifteen days of receipt of the request that additional time will be needed to respond to the written request. The requester may deem the request denied and may pursue the remedies available pursuant to the Inspection of Public Records Act if the custodian does not permit the records to be inspected in a reasonable period of time.”

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II. Exemptions and other legal limitations

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A. Exemptions in the open records statute

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1. Character of exemptions

The specific exemptions of the Inspection of Public Records Act are enumerated in NMSA 1978 § 14-2-1(A)-(H)) (2011) : "(A) records pertaining to physical or mental examinations and medical treatment of persons confined to an institution; (B) letters of reference concerning employment, licensing or permits; (C) letters or memoranda that are matters of opinion in personnel files or students’ cumulative files; (D) law enforcement records that reveal confidential sources, methods, information or individuals accused but not charged with a crime. Law enforcement records include evidence in any form received or compiled in connection with any criminal investigation or prosecution by a law enforcement or prosecuting agency, including inactive matters or closed investigations to the extent that they contain the information listed [above]; (E) as provided by the Confidential Materials Act (NMSA 1978 § 14-3A-1 (1981); (F) trade secrets, attorney-client privileged information and long-range or strategic business plans of public hospitals discussed in a properly closed meeting; (G) tactical response plans or procedures prepared for or by the state or a political subdivision of the state, the publication of which could reveal specific vulnerabilities, risk assessments or tactical emergency security procedures that could be used to facilitate the planning or execution of a terrorist attack; (H) protected personal identifier information; and (I) as otherwise provided by law.”

These exemptions are discretionary, except NMSA 1978 § 14-2-1(D)) (2019) and possibly § 14-2-1(C). See related Arrest Records Act provisions, NMSA 1978 § 29-10-8 (1999).

The exemptions are patterned after the Freedom of Information Act, but the procedures and definitions are more favorable to disclosure and exceptions are more limited.

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2. Discussion of each exemption

Medical records.

Although the statute suggests the exemption from disclosure for medical records may concern (only) persons confined to public institutions, the exception has been interpreted by the New Mexico Supreme Court to exempt any medical records. Newsome v. Alarid, 1977-NMSC-076, ¶¶ 9-10, 568 P.2d 1236 (rev’d on other grounds and separate portion of opinion superseded by statute); see also N.M. Op. Att'y Gen. 60-155 (1960) ("[a]ny record which might fairly be called a record of examination of a patient or record of medical treatment of a patient of any institution is not a public record and need not be submitted to public scrutiny."); cf. 1968 N.M. Op. Att'y Gen. 68-110. Medical records that may otherwise be exempt from disclosure but are introduced into evidence in any public hearing lose their exempt status and may be inspected by the public. N.M. Op. Att'y Gen. 88-16 (1988).

Letters of reference concerning employment, licensing or permits.

Under former law, this exception was determined to allow a public body to withhold the names of former state employees terminated for disciplinary reasons. State ex rel., Barber v. McCotter, 1987-NMSC-046, ¶¶ 7-12, 738 P.2d 119. It is not clear that Barber v. McCotter would be decided in the same manner after the 1993 amendments. See City of Las Cruces v. Pub. Emp. Labor Relations Bd., 1996-NMSC-024, ¶11, 917 P.2d 451 (upholding Barber v. McCotter, stating “[a] public employee's privacy interest in his personal position regarding union representation requires protecting representation petitions from public disclosure.”); see also City of Farmington v. Daily Times, 2009-NMCA-057, ¶¶ 19, 22, 146 N.M. 349, 210 P.3d 246 (rev’d on other grounds) (requiring disclosure of applications of the position of city manager).

Letters or memoranda that are matters of opinion in personnel files or students' cumulative files.

Prior to the 1993 amendments, which created a presumption of open records, a variety of court decisions suggested a broad reading of this authority to withhold documents, a reading that is no longer warranted. See, e.g., Spadaro v. Univ. of N.M. Bd. Of Regents, 1988-NMSC-064, ¶ 11, 107 N.M. 402, 759 P.2d 189 (1988) (complaints filed in a student job office at the University are not public records); but see Cox v. N.M. Dep’t of Pub. Safety, 2010-NMCA-096, ¶ 10, 242 P.3d 501 (holding that citizens’ complaints are pubic records and stating “[t]he Court in Spadoro applied a previous version of the IPRA which, unlike the current version, did not contain a definition of public record”).

Law enforcement records that reveal confidential sources, methods, information or individuals accused, but not charged with a crime.

Law enforcement records include evidence in any form received or compiled in connection with any criminal investigation or prosecution by any law enforcement or prosecuting agency, including inactive matters or closed investigations to the extent they contain the information listed above. See also Arrest Record Information Act, NMSA 1978 § 29-10-1 to -8 (1975, as amended through 1999). After the 1993 amendments, the Inspection of Public Records Act had been largely reconciled and specifically provides a wide variety of documents are now public: posters, announcements or lists identifying fugitives or wanted persons, police blotters, court records of public judicial proceedings, records of traffic defenses and accident reports, etc. This exception has been the focus of most of the public records battle over the last few years. The New Mexico Supreme Court held that this IPRA exception does not create a “blanket exception from inspection for law enforcement records relating to an ongoing criminal investigation.” Jones v. City of Albuquerque Police Dep't, 2020-NMSC-013, ¶ 1, 470 P.3d 252, 255.

As provided in the Confidential Materials Act.

This very narrow exemption covers only those documents donated to a museum, university, or other public institution wherein the grantor specifically reserves and requires confidentiality for a certain term of years. See NMSA 1978 § 14-3A-2 (1981).

Trade secrets, attorney-client privileged information and strategic business plans of hospitals.

IPRA lists a number of documents where policy considerations in confidentiality override public disclosure, including trade secrets, attorney-client communications, and confidential business plans of hospitals. Pacheco v. Hudson, 2018-NMSC-022, ¶ 38.

Tactical response plans and procedures propounded by the state government to address terrorist threats are exempt from disclosure.

There is no case law on this issue.

Protected personal identifier information.

There is no case law on this issue.

As otherwise provided by law, meaning by regulation or other specific statutory exception.

The Supreme Court of New Mexico has determined that regulations adopted by a public body may have the force of law. City of Las Cruces v. Pub. Emps. Labor Relations Bd., 1996-NMSC-024, ¶¶ 5, 12, 917 P.2d 451. The case before the court concerned a labor board's promulgation of regulations to withhold representation petitions otherwise public. The Supreme Court determined the regulations were necessary to accomplish performance functions and duties which included “protecting representation petitions from public disclosure." Id. ¶¶ 7-11. The Supreme Court resurrected the "balancing test" (see Newsome, 1977-NMSC-076, 568 P.2d 1236) and held that public employees' privacy interests related to union representation required the protection of the representation petitions from public disclosure. Id. ¶¶ 8-11. Given the (assumed) possibility of retaliation against employees who support labor activities and the failure of the plaintiff to offer any evidence of the benefit to the public that would outweigh the privacy interest, the court's resurrection of the balancing test, and the balancing test itself, may be more narrowly construed in the future.

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B. Other statutory exclusions

The New Mexico statutes contain more than 100 additional references to specific documents that are specifically open or closed to the public. For example, NMSA 1978 § 1-3-1(C) (2019) specifically provides that boundary maps and descriptions maintained by county clerks are public records. NMSA 1978 §61-11A-7 (1987) decrees that the names of pharmacists who enter an impairment program voluntarily are confidential.

The bulk of the specific provisions are very narrow and very specific to the substantive area of law in which they are contained. A complete collection is contained in the New Mexico Open Records Task Force, Source Materials, available through FOG. The vast majority of the separate, specific citations deeming records to be open are redundant in light of the 1993 amendments providing for a broad definition of public records and a presumption of access. See, e.g., NMSA 1978 § 21-1-16 (1953).

Other provisions do provide that certain records are secret, but the bulk of the specific statutes are redundant or non-controversial. NMSA 1978, Section 40-13-7.1 (2005), provides that medical or health care related information concerning domestic abuse of a person is confidential.

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C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

The New Mexico Supreme Court, with little justification, may have resurrected a vague "balancing test" that may be reconsidered or more narrowly construed in the future. City of Las Cruces v. Pub. Emps. Labor Relations Bd., 1996-NMSC-024, ¶ 8, 917 P.2d 451.

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D. Protective orders and government agreements to keep records confidential

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E. Interaction between federal and state law

Any document that would be confidential under federal law is confidential under state law. This includes HIPAA, DPPA, and FERPA.

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1. HIPAA

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2. DPPA

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3. FERPA

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4. Other

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F. Segregability requirements

There are no segregability requirements.

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G. Agency obligation to identify basis of redaction or withholding

There is no obligation to identify basis of redaction or withholding in IPRA.

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III. Record categories - open or closed

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A. Autopsy and coroners reports

The Office of the Medical Investigator should make autopsy reports available to "anyone demonstrating a tangible and direct interest." NMSA 1978 § 24-14-28(A) (1987); see generally NMSA 1978 § 24-14-20 (2009), (Death registrations). There is no reported decision as to what constitutes a "tangible and direct interest."

Coroners Reports. Generally are not available. According to NMSA 1978 § 24-14-28(A), the state registrar shall provide copies to anyone "with a direct and tangible interest." Under New Mexico Law, the coroner means the district medical investigator. NMSA 1978 § 24-11-4. Death certificates are addressed under NMSA, 1978 § 24-11-6. See also NMSA 1978 § 24-14-20.

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B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)

The general catch-all exception to the right to inspect public records is that state or federal law may provide additional exceptions. NMSA 1978 § 14-2-1(H) (2019). The rules for dissemination of administrative enforcement records vary according to specific statutes. The following are examples of state laws that address the disclosure of administrative records:

§ 69-11-2: Mining reports shall be held confidential except that they may be revealed to specified agencies.
§ 24-1-5: Health facility complaints shall not be publicly disclosed if, upon investigation, the complaint is unsubstantiated or disclosure will reveal the identity of the individuals or facilities involved.
§ 41-8-4: Information received by specified state and federal agencies regarding a fire loss investigation is confidential.
§ 50-9-21(B): Information obtained by the Department of Labor “in connection with an investigation under or the administration or enforcement of the provisions of the Occupational Health and Safety Act shall be made available except to the extent privileged by law.”
§ 66-7-213: Accident reports made to the state highway and transportation department are confidential, unless a specified exception states otherwise.

Rules governing active investigations vary by statute. For example, health facility complaints may not be publicly disclosed if upon investigation the complaint is unsubstantiated. NMSA 1978 § 24-1-5.

Closed investigations also vary by statute. Simply because an investigation is closed does not mean that information therefrom is available for inspections. If the material reveals “confidential sources, methods, or information,” it will remain confidential despite the investigation being closed. See NMSA 1978 § 14-2-1(D)(1) (2019).

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C. Bank records

Governmental bank records in the possession of the state are presumably public unless exempted. See NMSA 1978 § 14-2-6(G) (2013). Private records in the possession of a bank or financial institution are not available.

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D. Budgets

State budgets are not exempted from public disclosure under NMSA § 14-2-1 and are reported on the New Mexico Sunshine Portal. See New Mexico Sunshine Portal, http://sunshineportalnm.com/ (July 10, 2019).

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E. Business records, financial data, trade secrets

Trade secrets are exempt from disclosure. NMSA 1978 § 14-2-1(F) (2019). The exact nature of the information is important. See, e.g., NMSA 1978 §58-1-48 (1995) (records of financial institutions shall be revealed only with the consent of the director); certain corporate records filed with the Public Regulation Commission limit publicly available information to the name of corporation, names and addresses of the officers, and certain financial information is not disclosed. But see 1951 N.M. Op. Att'y Gen. 5342 which suggests that most business and financial records are public records. Presumably, a significant burden of establishing that the records are not public would rest on the public body arguing secrecy. See NMSA 1978 § 14-2-5 (1993). See also City of Las Cruces v. Public Employees Labor Relations Bd., 1996-NMSC-024, ¶ 8, 917 P.2d 451 (balancing test criteria); but see Edenburn v. New Mexico Dep't of Health, 2013-NMCA-045, ¶ 26, 299 P.3d 424, 432 (finding that “a regulation may prohibit release of records under IPRA only when it has the force of law”).

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F. Contracts, proposals and bids

Contracts that a state agency enters into for the lease, sale or development of state land and state contracts that provide for more than twenty thousand dollars ($20,000) are public records. Such contracts shall include: (a) the name of the recipient of the contract; (b) the purpose of the contract; (c) the amounts expended on the contract (d) a copy of or an internet website link to a copy of the contract document, including amendments; and (e) a copy of or an internet website link to a copy of a resident certificate issued pursuant to NMSA 1987 Section 13-1-22 and used in the award of a contract. Bids are only public after an award of the contract. NMSA 1978 § 10-16D-3(D)(4).

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G. Collective bargaining records

Certain portions are probably confidential. Under the Open Meetings Act, NMSA 1978 § 10-15-1(H)(5), collective bargaining meetings are closed. See also City of Las Cruces v. Public Employees Labor Relations Bd., 1996-NMSC-024 (representation petitions are confidential).

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H. Economic development records

Audits of economic development projects are to be performed annually, and they constitute public records. NMSA 1978 § 5-10-11(C). However, proprietary information obtained by the Technology Enterprise Division of the Economic Development Department “shall not be deemed a public record” under the Public Records Act or be open to inspection under NMSA 1978 § 14-2-1. See NMSA 1978 § 9-15-18.

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I. Election Records

Certain information from voter databases may only be disclosed with the county clerk’s authorization and must not be used for unlawful purposes. NMSA 1978 § 1-4-5.5(C).

“Voter registration lists maintained by the secretary of state and voter registration certificates filed with the county clerks are not covered by [§ 1-4-5.5, NMSA 1978] and are public records that must be disclosed as provided by law.” New Mexico Attorney General’s Office, Inspection of Public Records Act Compliance Guide 16 (8th ed. 2015). In disclosing voter data, “the county clerk or secretary of state shall not provide data or lists that include voters’ social security numbers, codes used to identify agencies where voters have registered, a voter’s day and month of birth or voters’ telephone numbers if prohibited by voters.” NMSA 1978, § 1-4-5.5(B) (2015). The statute does not specify whether “voting data” includes individual voting results.

Voting results are open, see, e.g., N.M. Const. art. XX, §7.

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J. Emergency Medical Services records

Individual medical information is not subject to disclosure. NMSA 1978 § 14-2-1(A). Beyond that, some "hospital reports" will be public. See NMSA 1978 § 14-6-1, which has been identified as prohibition against releasing any "health information." The statute, however, is ambiguous, and customarily hospitals give out the name of the patient and a general health status report.

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K. Gun permits

Permits are generally not required. Concealed carry permits are confidential. NMSA 1978, §29-19-6(B).

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L. Homeland security and anti-terrorism measures

Section 14-2-1(G) was enacted to provide a specific exception for tactical response plans or procedures to address planning to prevent or deal with terrorist attacks.

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M. Hospital reports

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N. Personnel records

Personnel records are public except those portions concerning “letters or memoranda that are matters of opinion in personnel files or students’ cumulative files.” NMSA § 14-2-1(C).

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1. Salary

Public information.

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2. Disciplinary records

Insofar as disciplinary records contain “letters or memorandums that are matters of opinion,” they do not constitute public records. See NMSA 1978 § 14-2-1(C). The question as to whether final disciplinary records are public is likely to be resolved by future litigation.

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3. Applications

Insofar as applications do not involve “matters of opinion,” do not contain “letters of reference concerning employment,” and do not divulge personally identifying information, they likely constitute public records. See NMSA 1978 § 14-2-1(B)-(D). See City of Farmington v. Daily Times, 2009-NMCA-57, 210 P.3d 246 (rev’d on other grounds) (requiring disclosure of applications of the position of city manager).

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4. Personally identifying information

“Protected personal identifier information” is exempt. “Protected personal identifier information” includes “(1) all but the last four digits of a taxpayer identification number, financial account number, or driver’s license number; (2) all but the year of a person’s date of birth; and (3) a social security number.” NMSA 1978 § 14-2-1(E). This type of information does not exempt the entire document from inspection. NMSA 1978 § 14-2-1.1. However, a public body must redact this information from public records before the records are inspected or copied. NMSA 1978 § 14-2-1.1.

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5. Expense reports

Such reports are public records. NMSA 1978 § 14-2-6(G).

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6. Evaluations/performance reviews

Letters or memoranda that are matters of opinion do not constitute public records. See NMSA 1978 § 14-2-1(C).

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7. Complaints filed against employees

Letters or memoranda that are matters of opinion do not constitute public records. See NMSA 1978 § 14-2-1(C).

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8. Other

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O. Police records

Law enforcement records are public unless the requested records reveal confidential sources, individuals accused but not charged with a crime, or victims of or non-law-enforcement witnesses to certain alleged crimes. NMSA 1978 § 14-2-1(D). “Law enforcement records include evidence in any form received or compiled in connection with a criminal investigation or prosecution by a law enforcement or prosecuting agency, including inactive matters or closed investigations.” Id. However, information about an accused party not charged with a crime is open to public inspection if it is contained in any record set forth in NMSA 1978 § 29-10-7.

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1. Accident reports

Accident reports made by state police officers “shall be furnished to any person upon written application accompanied by a fee as set by the secretary of the New Mexico state police board.” See NMSA 1978 § 29-2-25; see also NMSA 1978 § 29-10-7(A)(5) (stating that accident reports are available for public inspection).

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2. Police blotter

Police blotters generally include “the name, physical description, place and date of birth, address and occupation of persons arrested, the time and place of arrest, the offenses for which the individuals were arrested or detained, and the name of the arresting officer.” New Mexico Attorney General’s Office, Inspection of Public Records Act Compliance Guide, 11-12, (8th ed. 2015). Police blotters are open to public inspection. NMSA § 29-10-7(A)(2)..

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3. 911 tapes

911 tapes and original records of entry that are maintained by criminal justice agencies and compiled chronologically are available for public inspection. NMSA 1978 § 29-10-7(A)(2); see New Mexico Attorney General’s Office, Inspection of Public Records Act Compliance Guide, 12, (8th ed. 2015).

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4. Investigatory records

The availability of investigatory records for public disclosure may depend on the phase of the investigation. New Mexico Attorney General’s Office, Inspection of Public Records Act Compliance Guide, 12, (8th ed. 2015). For instance, a person’s name will no longer be confidential once the investigation is closed and the person is charged with a crime. Id. “However, if the target of an investigation . . . is not charged, that person’s identity can remain confidential even after the investigation is closed.” Id. Generally, information obtained during active investigations is not publicly available, even after the investigation is closed, if it would reveal confidential sources, methods or information, individuals accused but not charged with a crime, or victims of—or non-law enforcement witnesses to—certain alleged crimes. See NMSA 1978 § 14-2-1(D).

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5. Arrest records

Notations of the arrest or filing of criminal charges against an individual that reveal confidential sources, methods, information or individuals accused but not charged with a crime are confidential, and dissemination is unlawful except as otherwise provided by law. NMSA 1978 § 29-10-4.

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6. Compilations of criminal histories

Compilations of criminal histories are public except for parts that reveal confidential sources, methods, information or individuals accused but not charged with a crime. See NMSA 1978 § 29-10-4. However, if a criminal history merely reveals an individual who has been charged with a crime, such record is available to the public. See id.

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7. Victims

Generally public information. See NMSA 1978 § 14-2-1(D). Exceptions exist for victims of—or non-law enforcement witnesses to—an alleged crime of: (1) assault with intent to commit a violent felony pursuant to Section 30-3-3 NMSA 1978 when the violent felony is criminal sexual penetration, (2) assault against a household member with intent to commit a violent felony pursuant to Section 30-3-14 NMSA 1978 when the violent felony is criminal sexual penetration, (3) stalking pursuant to Section 3-3A-3 NMSA 1978, (4) aggravated stalking pursuant to Section 30-3A-3.1 NMSA 1978, (5) criminal sexual penetration pursuant to Section 30-9-11 NMSA 1978, or (6) criminal sexual contact pursuant to Section 30-9-12 NMSA 1978.

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8. Confessions

Law enforcement records are public unless the requested records reveal confidential sources, methods or information, individuals accused but not charged with a crime, or victims of—or non-law-enforcement witnesses to—an alleged crime. NMSA 1978 § 14-2-1(D). Confessions may not be public if they reveal confidential sources or information.

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9. Confidential informants

The identity of such an informant is not available to the public. NMSA 1978 § 14-2-1(D)(2)(b).

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10. Police techniques

Police techniques may be confidential information and thus not available to the public. NMSA 1978 § 14-2-1(D); § 29-10-4.

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11. Mugshots

Mug shots are public. See NMSA 1978 § 14-2-1(A)(4).

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12. Sex offender records

Sex offender registration information is public (except social security numbers) regarding certain sex offenders and must be provided no later than seven days after the request is received. NMSA 1978 § 29-11A-5.1.

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13. Emergency medical services records

Health information relating to and identifying specific individuals is confidential and is not available to the public “even though the information is in the custody of or contained in the records of a governmental agency.” NMSA 1978 § 14-6-1.

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14. Police video (e.g, body camera footage, dashcam videos)

Body-worn camera recordings are public records except for the portions of law enforcement records subject to the exemptions set forth in N.M.R.S. § 14-2-1.2(A) (Inspection of Public Records Act, or “IPRA”). Under IPRA, “nonpublic information may be … digitally obscured in a visual or audio record” when the record depicts: before charges are filed, personal identifying information of non-law-enforcement individuals, e.g., witnesses to an alleged crime of assault, or other identifying information “of individuals who are accused but not charged with a crime”; a dead body, unless a law enforcement officer is “reasonably alleged or suspected to have caused the death”; great bodily harm or severe violence unless a law enforcement officer is “reasonably alleged or suspected to have caused the” harm; “an individual's intimate body parts”; notification to a public citizen of a family member’s death; “confidential sources, methods or information”; or a “physical or mental examination and medical treatment of persons unless the information could be relevant to a criminal investigation or an investigation of misfeasance, malfeasance or other suspected violation of law conducted by a person elected to or employed by a public body.” N.M.R.S. § 14-2-1.2(A). Requesters may view any of the exempted categories of records on-site with the agency, except for records depicting “confidential sources, methods, or information.” N.M.R.S. § 14-2-1.2(C).

Requesters should include in their request one of the following: (1) the computer-aided dispatch (“CAD”) record number, (2) the police report number, (3) the date or range of dates of the incident plus the name of the officer responding, the time, or the approximate location of the incident, or (4) other criteria published by law enforcement to facilitate access to BWC records. N.M.R.S. § 14-2-1.2(B).

Presently, there are no cases addressing the disclosure of body-worn camera footage under IPRA.

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15. Biometric data (e.g., fingerprints)

There are no reported cases on this issue.

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16. Arrest/search warrants and supporting affidavits

Presumably public, but no reported cases. Conceivably, some may be confidential due to the content.

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17. Physical evidence

There are no reported cases on this issue.

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P. Prison, parole and probation reports

No specific exemption, except records subject to other exceptions (medical) and certain exceptions that apply to juveniles.

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Q. Professional licensing records

Licenses are public but some portions of the record may not be. NMSA 1978 § 14-2-1(B) exempts portions of information concerning licensing, including letters of reference.

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R. Public utility records

No exemption exists for public utility records, so they are presumably available to the public. However, any records under the Public Utility Act determined to contain confidential or proprietary information are not subject to the Public Records Act. NMSA 1978 §62-6-17(c).

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S. Real estate appraisals, negotiations

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1. Appraisals

Appraisals are subject to the general exceptions, such as trade secrets and specific statutory exemptions but, absent any specific exemption, would be considered public records. Upon request, the commissioner of public lands must provide copies of any records kept by the state land office. NMSA 1978 § 19-1-21. Records of appraisals of public lands are held by the state land office. See Office of the New Mexico Attorney General, Opinion Request—Applicability of Inspection of Public Records Act (August 23, 2007).

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2. Negotiations

There are no exceptions for public land negotiations under NMSA 1978 § 14-2-1. In addition, the commissioner of public lands must provide copies of any records kept by the state land office when requested. NMSA 1978 § 19-1-21.

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3. Transactions

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4. Deeds, liens, foreclosures, title history

There are no exceptions for deeds, liens, foreclosures and title history under NMSA 1978 § 14-2-1. In addition, the commissioner of public lands must provide copies of any records kept by the state land office when requested. NMSA 1978 § 19-1-21.

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5. Zoning records

There are no exceptions for zoning records under NMSA 1978 § 14-2-1. In addition, the commissioner of public lands must provide copies of any records kept by the state land office when requested. NMSA 1978 § 19-1-21.

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T. School and university records

Student, faculty, and staff lists with personal identifying information obtained from a public school may not be used for marketing goods and services to students, faculty, staff, or their families. NMSA 1978 § 22-21-2(A). Letters or memoranda that are matters of opinion contained in students’ cumulative files are also not available to the public. NMSA 1978 § 14-2-1(C). Information that is confidential under federal law may also exempt from disclosure under state law. See, e.g., NMSA 1978 § 14-2-1(H).

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1. Athletic records

There is no specific statutory or case law addressing this issue.

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2. Trustee records

There is no specific statutory or case law addressing this issue.

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3. Student records

There is no statutory or case law addressing this issue. Letters or memoranda that are matters of opinion contained in students’ files are not available to the public. NMSA 1978 § 14-2-1(C).

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4. School foundation/fundraising/donor records

Currently in litigation.

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5. Research material or publications

There is no reported statutory or case law addressing this issue.

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6. Other

Records contained in personnel files will be publicly available to the extent they do not involve “matters of opinion” or fall under another statutory exception. See NMSA 1978 § 14-2-1.

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U. State guard records

There is no case law or statutes on this issue.

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V. Tax records

Tax records and tax returns are confidential and cannot be inspected or released without authorization. NMSA 1978 § 7-1-8; see also 26 U.S.C.A. § 7213A.

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W. Vital Statistics

Information found in vital records (birth and death certificates) that are maintained by the vital statistics bureau is not available for public inspection, except as narrowly authorized by law. NMSA 1978 § 24-14-27(A).

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1. Birth certificates

“When one hundred years have elapsed after the date of birth or fifty years have elapsed after the date of death, the vital records of these events in the custody of the state registrar shall become open public records . . . provided that vital records of birth shall not become open public records prior to the individual's death.” NMSA 1978 § 24-14-27(C).

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2. Marriage and divorce

Marriage and divorce records are not included in the definition of vital records. NMSA 1978 § 24-14-2(L).

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3. Death certificates

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4. Infectious disease and health epidemics

Any person may obtain any aggregate data publicly disseminated by the Department of Health. NMSA 1978 § 24-14A-6(C).

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IV. Procedure for obtaining records

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A. How to start

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1. Who receives a request?

Each public body must designate at least one custodian of public records, and requests are sent to the custodian. NMSA 1978 § 14-2-8(A).

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2. Does the law cover oral requests?

The failure to respond to an oral request shall not subject the custodian to any penalty. NMSA § 14-2-8(A). Informally, many public bodies honor oral requests and may do so faster than a written request. Public bodies will often produce documents for inspection and copying without a written request, however, officially a request is required to be in writing. NMSA 1978 § 14-2-8(A). No person requesting records shall be required to state the reason for inspecting the records. NMSA § 14-2-8(C). Government custodians are obligated to respond in writing to a written request. NMSA 1978 § 14-2-8(D).

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3. Required contents of a written request

A written request requires the name, address, and the telephone number of the person seeking access to the records and shall identify the records sought with reasonable particularity. NMSA 14-2-8(C).

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4. Can the requester choose a format for receiving records?

Yes. "Public records" is broadly defined, NMSA 1978 § 14-2-6(G) (2013), and no specific restrictions as to the requested format exist, but the public body has discretion when responding to a request for public information in a certain format. NMSA 1978 § 14-2-9(A) (2013) allows the public body to provide a hard copy partial printout of data containing the public information if "necessary to preserve the integrity of the computer data or the confidentiality of exempt information." A records custodian is required to provide a copy of a public record in electronic format if the “public record is available in electronic format and an electronic copy is specifically requested.” NMSA 1978 § 14-2-9(B) (2013). A custodian is only required to provide an electronic record in the file format in which it exists at the time of the request. Id. Additionally, NMSA 1978 § 14-3-15.1(A) (1995) provides specifically that "information contained in information systems databases shall be a public record," but some restrictions and variations on access to this information exist, including the payment of a "reasonable fee." See also NMSA § 14-3-18 (2005), (statute regarding county and municipal database information). The New Mexico Court of Appeals has held that a public agency has no duty to produce computer database records in electronic format if the party requesting the information is unwilling to enter into an agreement as set forth by § 14-3-15.1(C). Crutchfield v. N.M. Dep't. of Taxation and Revenue, 2005-NMCA-22, ¶¶ 18-27.

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5. Availability of expedited processing

No statutory or case law guidance.

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B. How long to wait

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1. Statutory, regulatory or court-set time limits for agency response

The custodian is obligated to permit the inspection immediately or as soon as practicable under the circumstance but not later than 15 days after receiving a written request. NMSA 1978 § 14-2-8(D). If the inspection is not permitted within three (3) business days, the Custodian shall explain in writing when records will be available or when the public body will respond to the request. NMSA 1978 § 14-2-8(D). Excessively burdensome or broad requests may allow the custodian additional time to permit the inspection. NMSA 1978 § 14-2-10.

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2. Informal telephone inquiry as to status

There is no statutory or case law addressing this issue.

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3. Is delay recognized as a denial for appeal purposes?

A written request that has not been permitted within fifteen (15) days of receipt may be deemed denied. NMSA 1978 § 14-2-10. Any administrative remedies do not have to be exhausted prior to an action to enforce the inspection of Public Records Act. NMSA 1978 § 14-2-11(A) and § 14-2-12(C).

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4. Any other recourse to encourage a response

Telephone and additional emails or letters may encourage a response. Or not.

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C. Administrative appeal

Exhaustion of administrative remedies is not required prior to an action to enforce the inspection of Public Records Act. NMSA 1978 § 14-2-12(C).

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1. Time limit to file an appeal

There is no statutory or case law guidance on this issue.

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2. To whom is an appeal directed?

No formal administrative appeal procedures exist. The New Mexico Foundation for Open Government strongly advises disappointed requesters to create a clear written paper trail to the custodian to avoid unnecessary disputes and litigation. An action to enforce the Inspection of Public Records Act may be brought by the state attorney general. NMSA 1978 § 14-2-12(A)(1). Ombudsman proceedings are not available.

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3. Fee issues

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4. Contents of appeal

There is no separate or specific statutory or case law guidance for public records appeals.

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5. Waiting for a response

There is no separate or specific statutory or case law guidance.

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6. Subsequent remedies

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 Inspection of Public Records Act. NMSA 1978 § 14-2-12. The court may require production of public documents and the court may enter orders as to future procedures or responses.

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D. Additional dispute resolution procedures

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1. Attorney General

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2. Ombudsperson

Not available.

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3. Other

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E. Court action

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1. Who may sue?

The Attorney General, the District Attorney, or any person whose written request has been denied. NMSA 1978 § 14-2-12(A).

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2. Priority

No special priority on the docket.

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3. Pro se

New Mexico allows a pro se suit.

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4. Issues the court will address

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a. Denial

A court will address any denial of records and has the full authority to issue a Writ of Mandamus, order an injunction, or other appropriate remedy to enforce the provision of Public Records Act, including damages and attorneys’ fees. NMSA 1978 § 14-2-12(B), (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 Inspection of Public Records Act. NMSA 1978 § 14-2-12. The court may require production of public documents, and the court may enter orders as to future procedures or responses.

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b. Fees for records

Court will address any fee dispute or denial of records and has the full authority to issue a Writ of Mandamus, order an injunction, or other appropriate remedy to enforce the provision of Public Records Act, including damages, costs and attorney fees. NMSA 1978 § 14-2-12(B), (D).

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c. Delays

Court will address any delay or denial of records and has the full authority to issue a Writ of Mandamus, order an injunction, or other appropriate remedy to enforce the provision of Public Records Act, including damages and attorney fees. NMSA 1978 § 14-2-12(B), (D).

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d. Patterns for future access (declaratory judgment)

Courts can order any appropriate remedy to enforce the provision of Public Records Act, including provisions for future compliance, damages and attorneys' fees. NMSA 1978 §§ 14-2-12(D).

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5. Pleading format

Normal pleading format.

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6. Time limit for filing suit

There is no statutory or case law addressing this issue. Unlikely to be less than two years.

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7. What court?

State District Court.

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8. Burden of proof

No statutory or case law guidance.

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9. Judicial remedies available

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10. Litigation expenses

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a. Attorney fees

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 public records law. NMSA 1978 § 14-2-12(D).

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b. Court and litigation costs

Some costs are recoverable. NMSA 1978 § 14-2-12(D).

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11. Fines

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12. Other penalties

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13. Settlement, pros and cons

Each case and client is different.

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F. Appealing initial court decisions

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1. Appeal routes

Court of Appeals and New Mexico Supreme Court.

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2. Time limits for filing appeals

Generally, thirty days but may be subject to exceptions depending on various procedures.

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3. Contact of interested amici

Amicus curiae briefs may be advisable. The New Mexico Foundation for Open Government, the New Mexico Press Association, the Reporters Committee for Freedom of the Press are potential amici with an ongoing interest in open records and meetings cases.

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G. Addressing government suits against disclosure

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Open Meetings

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I. Statute - basic application

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A. Who may attend?

Any interested person. NMSA 1978 § 10-15-1(A); Gutierrez v. City of Albuquerque, 1981-NMSC-061, 631 P.2d 304 (1981); N.M. Att'y Gen. Op. 1973-10.

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B. What governments are subject to the law?

All boards, commissions, administrative adjudicatory body, or other policymaking body of any state agency, any agency or authority of any county, municipality, district, or any political subdivision are subject to the law. NMSA 1978 § 10-15-1(B).

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1. State

See § 10-15-1(B), NMSA 1978.

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2. County

See § 10-15-1(B), NMSA 1978.

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3. Local or municipal

See § 10-15-1(B), NMSA 1978.

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C. What bodies are covered by the law?

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1. Executive branch agencies

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a. What officials are covered?

Individual officials in their individual capacity are not covered, but any and all officials as part of a quorum of a board, commission, administrative adjudicatory body, or other policymaking body of any state, county or city, district, or other political subdivision are covered. NMSA 1978 § 10-15-1(B). In Republican Party of New Mexico v. New Mexico Taxation & Revenue Dep't, 2012-NMSC-026, ¶¶ 43-46, 283 P.3d 853, the court significantly limited the ability of the executive branch to assert executive privilege to prevent disclosure of matters other than communications.

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b. Are certain executive functions covered?

Any and all officials as part of a quorum of a board, commission, administrative adjudicatory body, or other policymaking body of any state, county or city, district or other political subdivision are covered. NMSA 1978 § 10-15-1(B). Executive privilege in New Mexico can only apply to “communications” because the privilege exists solely to protect the executive's “access to candid advice.” Republican Party of New Mexico v. New Mexico Taxation & Revenue Dep't, ¶ 44, 2012-NMSC-026, 283 P.3d 853.

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c. Are only certain agencies subject to the act?

All agencies are covered. NMSA 1978 § 10-15-1(B).

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2. Legislative bodies

The Legislature exempted itself from significant portions of the critical work of certain legislative committees, including conference committees, any matters pertaining to personnel matters, matters "adjudicatory in nature" or any bill, resolution, or other legislative matter not yet presented to either House of the Legislature. NMSA 1978 § 10-15-2(A), (B). The New Mexico Press Association and the New Mexico Foundation for Open Government attempts to close the loophole have failed in the face of the legislative refrain that open government is good for everyone except the Legislature.

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3. Courts

Court proceedings are not required to be pubic under the Open Meetings Act. See NMSA 1978 § 10-15-1, but New Mexico Supreme Court Rules allow for the broadcasting, televising, photographing, and recording of court proceedings in accordance with NMRA, Rule 23-107. Additionally, court records are subject to public access unless sealed by order of the court or otherwise protected from disclosure by statute. Rule 1-079 NMRA. Just as any party or member of the public may file a motion for an order sealing the court record, any party or member of the public may file a response to the motion to seal. Id. Following a court order to seal the record or discrete parts thereof, a party or member of the public may move to unseal a sealed court record. Id. “When applicable, the motion should identify any statute, regulation, rule, or other source of law that addresses access to court records in the particular type of proceeding. A copy of the motion to unseal shall be served on all persons and entities who were identified in the sealing order.” Rule 1-079(I) NMRA. In determining whether to unseal, the court will consider the same factors that dictate sealing:

(a) the existence of an overriding interest that overcomes the right of public access to the court record;

(b) the overriding interest supports sealing the court record;

(c) a substantial probability exists that the overriding interest will be prejudiced if the court record is not sealed;

(d) the proposed sealing is narrowly tailored; and

(e) no less restrictive means exist to achieve the overriding interest.

Rule 1-079(G) NMRA. “If the court grants the motion to unseal a court record, the order shall state whether the court record is unsealed entirely or in part.” Id.

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4. Nongovernmental bodies receiving public funds or benefits

Unlike the New Mexico Inspection of Public Records Act, whether a body is subject to the Open Meetings Act does not depend entirely on whether the entity receives public funds or benefits but rather on whether the entity is a board, commission, administrative adjudicatory body, or other policymaking board of a state agency, any agency or authority of any county, municipality, district, or other political subdivision or has received any such powers by delegation and whether the body makes "public policy." NMSA 1978 § 10-15-1(B); see also Raton Pub. Serv. Co. v. Hobbes, 1966-NMSC-150, ¶ 8, 417 P.2d 32 (decided under prior law) (receipt of public funds is determinative). Agencies are subject to the Open Meetings Act if the body is "cloaked with policymaking and decision making powers" by the entity with ultimate authority. See N.M. Att'y Gen. Op. 90-27. (The Las Cruces Selection Advisory Committee was a policy body subject to the Open Meetings Act because its purpose was to narrow the list of potential contractors by reviewing qualifications and reporting to the City Council.)

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5. Nongovernmental groups whose members include governmental officials

If the body is "cloaked with policymaking and decision making powers" by the entity with ultimate authority, it is subject to the Open Meetings Act. See N.M. Att'y Gen. Op. 90-27. (The Las Cruces Selection Advisory Committee was a policy body subject to the Open Meetings Act because its purpose was to narrow the list of potential contractors by reviewing qualifications and reporting to the City Council.)

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6. Multi-state or regional bodies

Such may be subject to the Open Meetings Law if they exercise any authority of any state board, commission, or other policymaking body. See NMSA 1978 § 10-15-1(B).

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7. Advisory boards and commissions, quasi-governmental entities

Probably, if the body is "cloaked with policymaking and decision making powers" by the entity with ultimate authority. See N.M. Att'y Gen. Op. 90-27. (The Las Cruces Selection Advisory Committee was a policy body subject to the Open Meetings Act because its purpose was to narrow the list of potential contractors by reviewing qualifications and reporting to the City Council.)

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8. Other bodies to which governmental or public functions are delegated

Probably, if the body is "cloaked with policymaking and decision making powers" by the entity of ultimate authority. See N.M. Att'y Gen. Op. 90-27. (The Las Cruces Selection Advisory Committee was a policy body subject to the Open Meetings Act because its purpose was to narrow the list of potential contractors by reviewing qualifications and reporting to the City Council.)

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9. Appointed as well as elected bodies

Covered by the Act, NMSA 1978 § 10-15-1(B).

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D. What constitutes a meeting subject to the law

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1. Number that must be present

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a. Must a minimum number be present to constitute a "meeting"?

A quorum is required. NMSA 1978 § 10-15-1(B).

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b. What effect does absence of a quorum have?

A resolution, rule, regulation, ordinance, or action violating the Act's procedures may be invalidated. NMSA 1978 § 10-15-3(A).

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2. Nature of business subject to the law

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a. "Information gathering" and "fact-finding" sessions

The New Mexico Open Meetings Act broadly defines the nature of business subject to the law to include the development of personnel policy, rules, regulations, or ordinances, discussing public business, or taking any action within the authority of or the delegated authority of any board or public body. NMSA 1978 § 10-15-1(B).

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b. Deliberation toward decisions

These are subject to the Open Meetings Act. NMSA 1978 § 10-15-1(B).

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3. Electronic meetings

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a. Conference calls and video/Internet conferencing

Limited exception for conference calls if local rule or ordinance specifically permits for situations in which it is "difficult or impossible" for a member to attend the meeting in person, but each member participating by conference telephone must be identified when speaking, all participants must be able to hear each other at the same time, and members of the public attending the meeting must be able to hear any member of the public body who speaks during the meeting. NMSA 1978 § 10-15-1(C).

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b. E-mail

There is no statutory or case law addressing this issue.

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c. Text messages

There is no statutory or case law addressing this issue.

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d. Instant messaging

There is no statutory or case law addressing this issue.

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There is no statutory or case law addressing this issue.

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E. Categories of meetings subject to the law

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1. Regular meetings

Regular, special, and emergency meetings are subject to the New Mexico Open Meetings Law. See NMSA 1978 § 10-15-1(B) and (F).

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a. Definition

Emergency refers to unforeseen circumstances that, if not addressed immediately, will likely result in injury or damages to persons or property or substantial financial loss to the public body. NMSA 1978 § 10-15-1(F).

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b. Notice

Except in a case of an emergency, the agenda shall be available to the public at least 24 hours prior to the meeting. The public body shall determine at least annually in a public meeting what notice for a public meeting is reasonable for that public body. NMSA 1978 § 10-15-1(D) and (E). The Attorney General recommends 10 days for regular meetings, 3 days for special and no less than 24 hours for emergency meetings. 1990 Op. Att’y Gen. No. 90-29. Notice shall include broadcast stations and newspapers that have provided a written request for such notice. NMSA 1978 § 10-15-1(D). There are no specific, statutory posting requirements except for recessed and reconvened meetings, and for such meetings, the public body must post notice of the date, time and place for the reconvened meeting on or near the door of the place where the original meeting was held and at least one other location appropriate to provide the public notice of the continuance of the meeting. NMSA 1978 § 10-15-1(E). Because "reasonable notice" is required, the Attorney General recommends posting in several places readily accessible to the public. A public agenda must include a list of specific items of business to be discussed or transacted at the meeting or information on how the public may obtain a copy of such an agenda. NMSA 1978 § 10-15-1(F). The general invalidation penalty would appear to be applicable. NMSA 1978 § 10-15-3 invalidates any resolution, rule or regulation, ordinance, or action of the public body in violation of the requirements of the Open Meetings Law.

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c. Minutes

The minutes shall include the date, time, and place of the meeting, names of members in attendance, the substance of the proposals, and record of how decisions and votes are taken. NMSA 1978 § 10-15-1(G). All minutes are open to public inspection. NMSA 1978 § 10-15-1(G).

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2. Special or emergency meetings

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a. Definition

An emergency refers to unforeseen circumstances that, if not addressed immediately, will likely result in injury or damage to persons or properties or substantial financial loss to the public body. NMSA 1978 § 10-15-1(F).

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b. Notice requirements

Meetings shall be held "only after reasonable notice to the public." NMSA 1978 § 10-15-1(D). The body's internal rules may also provide a limitation. Id. "Reasonable notice" to the public is required, including to broadcast stations licensed by the FCC and newspapers of general circulation that provide a written request for such notice. NMSA 1978 § 10-15-1(D). There is no specific statutory obligation to post, but the Attorney General has advised that posting in places readily accessible to the public is necessary. There is no obligation to provide an agenda for emergency meetings. NMSA 1978 § 10-15-1(F). In the event that notice is not given, it is unclear whether § 10-15-3(A) would apply as emergency meetings are not required to have an agenda, but § 10-15-3(A) may invalidate any action taken by a body where it was determined that the body did not provide "reasonable notice" of any meeting.

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c. Minutes

Minutes have the same requirement as regular meetings. The minutes of these meeting are a matter of public record. See generally Village of Angel Fire v. Wheeler, 2003-NMCA-041, 63 P.3d 524.

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3. Closed meetings or executive sessions

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a. Definition

No explicit definition. See generally NMSA 1978 § 10-15-1(B), (H), (I)(1).

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b. Notice requirements

If made by motion in an on-going open meeting, no separate, additional notice is necessary. NMSA 1978 § 10-15-1(I)(1). If called for when the public body is not in an open meeting, "appropriate" notice is required. NMSA 1978 § 10-15-1(I)(2); see also NMSA 1978 § 10-15-1(D) (requiring a public body to determine at least annually what notice for public meetings is reasonable). Notice is required in an open meeting, to those persons present at the meeting. NMSA 1978 § 10-15-1(I)(1). If scheduled when the public body is not in an open meeting, notice must be given to the members and to the general public. NMSA 1978 § 10-15-1(I)(2). NMSA 1978 § 10-15-1(B), requiring the public body to determine what notice is reasonable, may be applicable. No specific statutory obligation to post in particular places or mediums exists, but the Attorney General has advised that posting in places readily accessible to the public is necessary. 1993 Op. Att’y Gen. No. 93-2. Additionally, arguably, the notice must include broadcast stations licensed by the FCC and those papers of general circulation that have provided a written request for such notice. The general subject must be identified with "reasonable specificity.” NMSA 1978 § 10-15-1(I)(1). In terms of possible penalties for failure to provide adequate or timely notice, a resolution, rule, regulation, ordinance, or action of any public body is not valid unless taken or made at a meeting held in accordance with all of the requirements of the New Mexico Open Meetings Act. NMSA 1978 § 10-15-3(A).

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c. Minutes

Meeting minutes must specifically state that only identified matters were discussed in the closed meeting. NMSA 1978 § 10-15-1(J). These minutes are public record, but details of closed meetings are not required to be reported, only that the secret discussions concerned only the identified subjects. NMSA 1978 § 10-15-1(G) and (J).

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d. Requirement to meet in public before closing meeting

Not specifically, but as a practical matter, yes, both before and after.

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e. Requirement to state statutory authority for closing meetings before closure

If made in an open meeting, requires a majority vote of the body by roll call. and the motion must state the authority for the closure and the subject to be discussed with reasonable specificity. The vote shall be taken in open meeting, and the vote of each member shall be recorded in the minutes. Only those subjects announced prior to the closure by the body may be discussed in a closed meeting. NMSA 1978 § 10-15-1(I)(1). If a closed session is called for when the public body is not in an open meeting, the notice must state the specific provision of law authorizing a closed meeting and state with reasonable specificity the subject to be discussed. NMSA 1978 § 10-15-1(I)(2).

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f. Tape recording requirements

No statutory requirement. Most bodies tape record as a matter of practice, and the tape recording is a public document. If meetings are recorded, the recording is a matter of public record, and an agency cannot deny access to it on the basis that the recording was not originally required to be made. See New Mexico Attorney General’s Office, Inspection of Public Records Act Compliance Guide, 26 (8th ed. 2015).

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F. Recording/broadcast of meetings

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1. Sound recordings allowed

Reasonable efforts shall be made to accommodate the use of audio and video recording devices. NMSA 1978 § 10-15-1(A). If meetings are recorded, the recording is a matter of public record, and an agency cannot deny access to it on the basis that the recording was not originally required to be made. See New Mexico Attorney General’s Office, Inspection of Public Records Act Compliance Guide, 26 (8th ed. 2015).

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2. Photographic recordings allowed

Reasonable efforts shall be made to accommodate the use of audio and video recording devices. NMSA 1978 § 10-15-1(A). If meetings are recorded, the recording is a matter of public record and an agency cannot deny access to it on the basis that the recording was not originally required to be made. See New Mexico Attorney General’s Office, Inspection of Public Records Act Compliance Guide, 26 (8th ed. 2015).

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G. Access to meeting materials, reports and agendas

Meeting notices shall include an agenda containing a list of specific items of business to be discussed or transacted at the meeting or information on how the public may obtain a copy of such an agenda. NMSA 1978 § 10-15-1 (F). There are no specific provisions regarding gaining access to meeting materials or reports.

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H. Are there sanctions for noncompliance?

A misdemeanor criminal penalty is on the books, but no appellate cases exist. The Attorney General and the District Attorney have authority to bring criminal or civil suits but rarely use or threaten such actions. In 1976, the Attorney General successfully prosecuted an open meetings violation, and in 2002, the Attorney General brought charges and successfully prosecuted five school board members, fining each $500. Any person who is successful in a civil action to enforce the Open Meetings Act "shall" be awarded costs and reasonable attorneys' fees. NMSA 1978 § 10-15-3(C). If meetings are recorded, the recording is a matter of public record, and an agency cannot deny access to it on the basis that the recording was not originally required to be made. See New Mexico Attorney General’s Office, Inspection of Public Records Act Compliance Guide, 26 (8th ed. 2015).

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II. Exemptions and other legal limitations

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A. Exemptions in the open meetings statute

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1. Character of exemptions

The ten exemptions to the act specifically exempt certain meetings. NMSA 1978 § 10-15-1(H). Closure is discretionary under the Open Meetings Law. NMSA 1978 § 10-15-1(I).

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2. Description of each exemption

The Legislature has provided for ten specific exemptions to the New Mexico Open Meetings Act.

a. meetings pertaining to the issuance, suspension, renewal or revocation of a license, except that hearing in which evidence is offered or rebutted, is open, and all final actions must be taken at open meetings. NMSA 1978 § 10-15-1(H)(1); this section also protects confidential communications between attorneys and their public agency clients, but settlement agreements may be outside the privilege. Bd. of Comm'rs of Doña Ana County v. Las Cruces Sun News, 2003-NMCA-102 ¶ 25, 134 N.M. 283, 76 P.3d 36;

b. limited (individual) personnel matters; an aggrieved public employee may demand a public hearing. Judicial candidates interviewed by any commission shall have the right to demand an open interview. NMSA 1978 § 10-15-1(H)(2);

c. deliberations by a public body in connection with an administrative adjudicatory proceeding, but an open meeting is required for any proceeding in which evidence is offered or rebutted, as well as the final action taken. NMSA 1978 § 10-15-1(H)(3);

d. discussions that identify any individual student unless a student, parent, or guardian requests otherwise. NMSA 1978 § 10-15-1(H)(4);

e. meetings to discuss bargaining strategy, preliminary to collective bargaining negotiations, and bargaining sessions. NMSA 1978 § 10-15-1(H)(5);

f. discussions of purchases exceeding $2,500 that could be made only from one source, the meetings at which the contents of competitive sealed proposals solicited pursuant to procurement code are discussed during the contract negotiating process. Final action and approval shall be made in an Open Meeting. NMSA 1978 § 10-15-1(H)(6);

g. meetings subject to the attorney-client privilege pertaining to threatened or pending litigation. NMSA 1978 § 10-15-1(H)(7);

h. meetings to discuss the purchase acquisition or disposal of real property or water rights. NMSA 1978 § 10-15-1(H)(8);

i. meetings of certain public hospitals in which strategic and long-range business plans are discussed. NMSA 1978 § 10-15-1(H)(9); and

j. gaming control board meetings dealing with information that is confidential under the Gaming Control Act. NMSA 1978 § 10-15-1(H)(10); see also NMSA 1978 §§ 60-2E-1, et seq.

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B. Any other statutory requirements for closed or open meetings

At the completion of a closed meeting, the minutes of the next open meeting must state that the matters discussed in the closed meeting were limited only to those specified in the motion. The statement must be approved by the public body by individual vote. NMSA 1978 § 10-15-1(J).

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C. Court mandated opening, closing

No reported New Mexico cases mandating (additional) open or closed meetings except pursuant to the statutory framework and court rules.

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III. Meeting categories - open or closed

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A. Adjudications by administrative bodies

A general provision, NMSA 1978 § 10-15-1(H)(3), provides for a closed meeting for an administrative adjudicatory proceeding. Substantive statutes and specific applicable agency regulations should also be considered.

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1. Deliberations closed, but not fact-finding

Deliberations are closed, but that portion of the hearing where evidence is offered or rebutted and the final action must occur in an open meeting. § 10-15-1(H)(3), NMSA 1978.

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2. Only certain adjudications closed, i.e. under certain statutes

A variety of other substantive statutes provide for additional rules or modifications to this general rule, and regulations of the administrative body should be consulted as well.

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B. Budget sessions

For the executive or administrative bodies, no special rule. Meetings of the legislative conference committees on appropriation bills have been closed pursuant to NMSA 1978 § 10-15-2(B). Whether Article IV, Section 12 of the New Mexico Constitution, which requires public sessions of each House, allows the Legislature to close conference committees has not been addressed; however, NMSA 1978 § 10-15-2 covers conference committees and subjects them to Open Meetings Act requirements.

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C. Business and industry relations

Except for the specific statutory exemptions, such meetings are treated as other public meetings under the Open Meetings Act.

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D. Federal programs

No special or particular provision in the Open Meetings Act; obviously federal law would impact this question as well.

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E. Financial data of public bodies

Numerous state agencies have reporting requirements for certain categories of information, including financial data. One particularly important source for agency information is the Sunshine Portal. The Portal was created in 2011 pursuant to the Sunshine Portal Transparency Act, NMSA 1978 §§ 10-16D-1 et. seq., to provide public access to state government budgets, expenditures, revenue, and specific public school district information, and to make such information accessible on one central website. New Mexico Sunshine Portal, http://sunshineportalnm.com/ (July 12, 2019).

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F. Financial data, trade secrets, or proprietary data of private corporations and individuals

There is no statutory or case law addressing this issue.

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G. Gifts, trusts and honorary degrees

There is no statutory or case law addressing this issue.

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H. Grand jury testimony by public employees

Grand jury proceedings in New Mexico are closed pursuant to NMSA 1978 §31-6-4(B).

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I. Licensing examinations

Subject to Open Meetings exclusion, except that portion in which evidence is offered or rebutted, shall be open. NMSA 1978 § 10-15-1(H)(1).

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J. Litigation, pending litigation or other attorney-client privileges

May be closed pursuant to NMSA 1978 § 10-15-1(H)(7).

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K. Negotiations and collective bargaining of public employees

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1. Any sessions regarding collective bargaining

Both the collective bargaining sessions and meetings to discuss bargaining strategy preliminary to collective bargaining negotiations may be closed. NMSA 1978 § 10-15-1(H)(5).

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2. Only those between the public employees and the public body

Both the collective bargaining sessions and meetings to discuss bargaining strategy preliminary to collective bargaining negotiations may be closed. NMSA 1978 § 10-15-1(H)(5).

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L. Parole board meetings, or meetings involving parole board decisions

Presumably open. No specific statutory exemption exists under the Open Meetings Act or NMSA 1978 § 14-2-1, but an Attorney General's Opinion, 1955-1956 Op. Atty Gen. 6509, suggests that the parole board is obligated to avoid a disclosure of any "social record." (Opinion rendered under previous versions of the Open Meetings and Inspection of Public Records Act. See, e.g., NMSA 1978 §31-21-6, which suggests all "social records" including presentence reports, pre-parole reports, and supervision histories are confidential.)

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M. Patients, discussions on individual patients

Only portions are open. No specific statutory exemption exists under the Open Meetings Act or NMSA 1978 § 14-2-1, but an Attorney General's Opinion, 1955-1956 N.M. Op. Atty Gen. 6509, suggests that the parole board is obligated to avoid a disclosure of any "social record." (Opinion rendered under previous versions of the Open Meetings and Inspection of Public Records Act. See, e.g., NMSA 1978 §31-21-6, which suggests all "social records" including presentence reports, pre-parole reports, and supervision histories are confidential.)

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N. Personnel matters

A specific exemption exists under the Open Meetings Act, but an aggrieved employee entitled to an open hearing upon demand, and all final actions must be taken at an open meeting. NMSA 1978 § 10-15-1(H)(2). Closed meetings to review contracts of contract employees for a public hospital did not violate the Open Meetings Act because the meetings fell under the personnel exception and no final actions were taken at the closed meetings. Treloar v. County of Chaves, 2001-NMCA-074, ¶ 8, 32 P.3d 803.

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1. Interviews for public employment

May be closed pursuant to NMSA 1978 § 10-15-1(H)(2). See Treloar v. County of Chaves, 2001-NMCA-074, ¶ 8, 32 P.3d 803

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2. Disciplinary matters, performance or ethics of public employees

May be closed pursuant to NMSA 1978 § 10-15-1(H)(2). In addition, public body may have adopted additional requirements or procedures for disciplinary hearings.

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3. Dismissal, considering dismissal of public employees

May be subject to closed meetings pursuant to NMSA 1978 § 10-15-1(H)(2).

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O. Real estate negotiations

May be closed pursuant to NMSA 1978 § 10-15-1(H)(6) and (8).

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P. Security, national and/or state, of buildings, personnel or other

There is no statutory or case law addressing this issue.

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Q. Students, discussions on individual students

The discussion of personally identifiable information about any individual student may be in a closed meeting unless a student's parent or guardian requests otherwise. NMSA 1978 § 10-15-1(H)(4).

Immediately, although no special statute of limitations applies to the Open Meetings Act.

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IV. Procedure for asserting right of access

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A. When to challenge

Immediately, although no special statute of limitations applies to the Open Meetings Act.

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1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?

The Open Meetings Act does not provide expedited procedures for reviewing requests to attend meetings.

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2. When barred from attending

No specific special rules, but the usual rules for obtaining a Temporary Restraining Order to open a meeting would apply. No specific statute of limitations exists, but laches may be a problem. The general limitation period, four years, is contained at NMSA 1978 §37-1-4.

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3. To set aside decision

No resolution, rule or regulation or ordinance or action of any public body is valid unless made at a meeting held in accordance with the Open Meetings Act. However, all actions taken are presumed to be in accord with the Act. NMSA 1978 § 10-15-3(A).

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4. For ruling on future meetings

A court could have the general authority to address future meetings.

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5. Other

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B. How to start

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1. Where to ask for ruling

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a. Administrative forum

No administrative procedure for challenging decisions exists. Internal rules purporting to establish a procedure may or may not be mandatory.

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b. State attorney general

State Attorney General and the district attorney shall enforce the Open Meetings Act. NMSA 1978 § 10-15-3(B). As a practical matter, the Attorney General will address violations by writing letters and requesting compliance. Criminal charges are rare, occurring once in 1976 and once in 2002.

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c. Court

Any person may enforce the purpose of the Open Meetings Act by injunction or mandamus or other appropriate order by suit in the District Court. NMSA 1978 § 10-15-3(C).

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2. Applicable time limits

No administrative appeal procedure, no applicable administrative time limits.

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3. Contents of request for ruling

No administrative procedure, no specific contents for ruling required.

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4. How long should you wait for a response

No specific response deadlines.

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5. Are subsequent or concurrent measures (formal or informal) available?

A violation of the Open Meetings Act may be corrected by holding a prompt public meeting, publicly voting on ratifying the violation. Kleinberg v. Bd. of Educ., 1988-NMCA-014, 751 P.2d 722.

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C. Court review of administrative decision

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1. Who may sue?

Any person may enforce the purpose of the Open Meetings Act by injunction or mandamus or other appropriate order. NMSA 1978 § 10-15-3(C).

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2. Will the court give priority to the pleading?

No priority is required to be given to an Open Meetings case by the district court.

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3. Pro se possibility, advisability

A pro se filing under the Open Meetings Act is possible but would be difficult and the public body will be represented by legal counsel.

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4. What issues will the court address?

The court may address any violation of the Open Meetings Act.

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a. Open the meeting

A court could require a meeting be open.

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b. Invalidate the decision

A court could invalidate improper decisions made at the meeting.

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c. Order future meetings open

A court could direct the public body to abide by the Open Meetings Act in future meetings.

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5. Pleading format

Follows normal New Mexico Rules of Civil Procedure.

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6. Time limit for filing suit

No reported decision, probably a four-year statute of limitations applies. However, particularly with injunctive or other extraordinary relief, immediately filing is always advisable, and laches could be a problem for any lawsuit that is not promptly filed.

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7. What court?

Actions are filed in the state district court. Venue will lie in the district where the public body normally meets or perhaps where the action of the public body will take effect. NMSA 1978 § 10-15-3(C).

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8. Judicial remedies available

Judicial remedies include injunctive relief, a mandamus order, or other "appropriate order." NMSA 1978 § 10-15-3(C).

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9. Availability of court costs and attorney's fees

The court shall award costs and fees to a successful plaintiff. If a public body defendant prevails and if the court determines the plaintiff brought the suit without sufficient information and belief that good grounds support the suit, the court shall award reasonable attorneys' fees. NMSA 1978 § 10-15-3(C).

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10. Fines

Theoretically, the statute provides for fines of not more than $500, but fines are rarely pursued. Two successful prosecutions have been reported from 1976 and 2002. See NMSA 1978 § 10-15-4.

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11. Other penalties

None.

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D. Appealing initial court decisions

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1. Appeal routes

New Mexico Court of Appeals and Supreme Court.

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2. Time limits for filing appeals

The time for filing an appeal is 30 days from the date of the final ruling by the District Court.

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3. Contact of interested amici

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V. Asserting a right to comment

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A. Is there a right to participate in public meetings?

No statutory right to speak. By rules, an individual body may provide a right to participate.

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B. Must a commenter give notice of intentions to comment?

No statutory right to speak. Most public bodies maintain an informal list of persons who want to speak. Call in advance and ask about any formal or informal rules or lists.

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C. Can a public body limit comment?

Yes.

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D. How can a participant assert rights to comment?

There is no statutory or case law addressing this issue. Check the rules of the public body.

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E. Are there sanctions for unapproved comment?

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Appendix

There is no statutory or case law addressing this issue.

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Open Government Guide

Author

Foreword

Open Records

I. Statute

A. Who can request records?

1. Status of requester

2. Purpose of request

3. Use of records

4. Can an individual request records on behalf of a third party or organization?

B. Whose records are and are not subject to the Act

1. Executive branch

2. Legislative bodies

3. Courts

4. Nongovernmental bodies

5. Multi-state or regional bodies

6. Advisory boards and commissions, quasi-governmental entities

7. Others

C. What records are and are not subject to the act?

1. What kinds of records are covered?

2. What physical form of records are covered

3. Are certain records available for inspection but not copying?

4. Telephone call logs

5. Electronic records (e.g., databases, metadata)

a. Can the requester choose a format for receiving records?

b. Can the requester obtain a customized search of computer databases to fit particular needs

c. Does the existence of information in electronic format affect its openness?

d. Online dissemination

6. Email

7. Text messages and other electronic messages

8. Social media posts

9. Computer software

10. Can a requester ask for the creation or compilation of a new record?

D. Fee provisions

1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

2. Particular fee specifications or provisions

3. Provisions for fee waivers

4. Requirements or prohibitions regarding advance payment

5. Have agencies imposed prohibitive fees to discourage requesters?

6. Fees for electronic records

E. Who enforces the Act?

1. Attorney General's role

2. Availability of an ombudsman

3. Commission or agency enforcement

F. Are there sanctions for noncompliance?

G. Record-holder obligations

1. Search obligations

2. Proactive disclosure requirements

3. Records retention requirements

4. Provisions for broad, vague, or burdensome requests

II. Exemptions and other legal limitations

A. Exemptions in the open records statute

1. Character of exemptions

2. Discussion of each exemption

B. Other statutory exclusions

C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

D. Protective orders and government agreements to keep records confidential

E. Interaction between federal and state law

1. HIPAA

2. DPPA

3. FERPA

4. Other

F. Segregability requirements

G. Agency obligation to identify basis of redaction or withholding

III. Record categories - open or closed

A. Autopsy and coroners reports

B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)

C. Bank records

D. Budgets

E. Business records, financial data, trade secrets

F. Contracts, proposals and bids

G. Collective bargaining records

H. Economic development records

I. Election Records

J. Emergency Medical Services records

K. Gun permits

L. Homeland security and anti-terrorism measures

M. Hospital reports

N. Personnel records

1. Salary