IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2009-NMCA-057
Filing Date: May 7, 2009
Docket No. 27,858
CITY OF FARMINGTON,
Respondent-Appellant/Cross-Appellee,
v.
THE DAILY TIMES and NEW MEXICO
FOUNDATION FOR OPEN GOVERNMENT,
Petitioners-Appellees/Cross-Appellants.
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Karen L. Townsend, District Judge
Modrall, Sperling, Roehl, Harris & Sisk, P.A.
Lisa Mann
Erin E. Langenwalter
Albuquerque, NM
City of Farmington
Jay Burnham, City Attorney
William Cooke, Deputy City Attorney
Farmington, NM
for Appellant
Dines & Gross, P.C.
Jim Dines
Gregory P. Williams
Albuquerque, NM
for Appellees
New Mexico Municipal League, Inc.
Randall D. Van Vleck, General Counsel
Santa Fe, NM
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for Amicus Curiae
OPINION
WECHSLER, Judge.
{1} Petitioners The Daily Times and the New Mexico Foundation for Open Government
(NMFOG) made requests of the City of Farmington (City) to inspect applications for the
position of city manager pursuant to the Inspection of Public Records Act (IPRA), NMSA
1978, §§ 14-2-1 to -12 (1947, as amended through 2005). The City denied the requests. The
issue presented on appeal requires this Court to determine whether the City met its burden
under State ex rel. Newsome v. Alarid, 90 N.M. 790, 568 P.2d 1236 (1977), of establishing
that a countervailing public policy outweighed the public’s interest in disclosure. We hold
that the City did not meet its burden. We further hold that the Newsome analysis applies in
this case because the requested documents do not fit within an exception stated in IPRA. We
affirm the district court’s decision requiring disclosure.
BACKGROUND
{2} A nationwide search for the position of city manager was launched by the mayor of
Farmington, with the approval of the city council, in January 2007, following the city
manager announcing his intent to retire. Although the mayor had the ability to appoint a
replacement for the position of city manager without soliciting applications, the City
contends that the mayor decided to post the vacancy locally, regionally, and nationally, in
order to generate a larger pool of qualified applicants. In addition to soliciting applications,
the mayor created a citizens’ panel of prominent individuals to represent the community and
have input in the selection process and requested that the city department heads participate
in the process. Ninety-one individuals applied for the position of city manager by the
closing date of March 5, 2007.
{3} On March 1, 2007, The Daily Times made a formal request pursuant to IPRA for a
list that identified all the applicants for the city manager position and for copies of all the
applications received by the City. The City denied The Daily Times’ request, asserting that
the applicants’ privacy outweighed the open government policy stated in IPRA, and,
therefore, only “the identities of those selected as finalists and invited for on-site interviews
would be released at the time the finalist list is determined.” Following the City’s denial of
The Daily Times’ IPRA request, NMFOG also submitted a formal request to the City
pursuant to IPRA, requesting the same information. The City denied NMFOG’s request on
the same grounds.
{4} Petitioners filed a petition for writ of mandamus, requesting that the district court
direct the City to produce the requested information. A two-day evidentiary hearing was
held on the merits of the request, and the City presented testimony to support its argument
that public policy considerations supported non-disclosure. Specifically, the City presented
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testimony that it made the decision to keep the names confidential because (1) it hoped to
obtain a larger and more qualified applicant pool; (2) other application processes for city
managers in a variety of other cities and states were closed processes; and (3) by not stating
the application process was open, the City had implicitly guaranteed a confidential selection
process until the finalists were selected. The City also presented testimony showing that
requiring the City to disclose the names of the applicants and the contents of their
applications would have a chilling effect on individuals willing to apply for public positions.
At the conclusion of the evidence, the district court found that the City failed to meet its
burden of establishing that disclosure would be prejudicial to the public interest. The district
court therefore concluded that the requested documents were public and issued a peremptory
writ of mandamus requiring their disclosure.
ARGUMENTS ON APPEAL
{5} On appeal, the City argues that the district court erred in its application of the “rule
of reason” by imposing an additional burden of proving “why disclosure would be
prejudicial to the public interest”; that the district court should have shifted the burden to the
parties requesting disclosure to show how the public would be harmed if the records were
withheld; and that the district court’s failure to conclude that the City had established a
countervailing public policy in favor of non-disclosure based on the evidence presented
amounted to an irrebuttable presumption in favor of disclosure. In their cross appeal,
Petitioners argue that the district court erred by applying the “rule of reason,” contending
that IPRA, on its face, resolves the issue presented by this case. We address these arguments
in turn.
IPRA AND THE “RULE OF REASON”
{6} We review statutory construction de novo. See Bd. of Comm’rs of Doña Ana County
v. Las Cruces Sun-News (Doña Ana), 2003-NMCA-102, ¶ 19, 134 N.M. 283, 76 P.3d 36.
In interpreting statutes, we seek to ascertain legislative intent by first looking to the statute’s
plain language. Id. When the “statute’s language is clear and unambiguous, we give the
statute its plain and ordinary meaning and refrain from further interpretation.” Id.
{7} IPRA embodies New Mexico’s policy of open government and provides that “[e]very
person has a right to inspect public records of this state.” See § 14-2-1(A). Under the
provisions of IPRA, public records are broadly defined to include:
all documents, papers, letters, books, maps, tapes, photographs, recordings
and other materials, regardless of physical form or characteristics, that are
used, created, received, maintained or held by or on behalf of any public
body and relate to public business, whether or not the records are required by
law to be created or maintained.
Section 14-2-6(E). IPRA provides a broad right to inspect public records, subject to twelve
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identified exceptions. Section 14-2-1(A). Some of the long-standing exceptions, and those
particularly relevant to this Court’s discussion herein, include:
(1) records pertaining to physical or mental examinations and
medical treatment of persons confined to an institution;
(2) letters of reference concerning employment, licensing or
permits;
(3) letters or memorandums that are matters of opinion in
personnel files or students’ cumulative files;
....
(7) public records containing the identity of or identifying
information relating to an applicant or nominee for the position of president
of a public institution of higher education;
....
(12) as otherwise provided by law.
Section 14-2-1(A). These limited exceptions to the public’s right to inspect public records,
in conjunction with a broad definition of public records, further IPRA’s purpose of ensuring
that “all persons are entitled to the greatest possible information regarding the affairs of
government and the official acts of public officers and employees.” Section 14-2-5.
{8} Independent of the statutory exceptions contained in Section 14-2-1(A), our Supreme
Court has recognized a non-statutory exception to disclosure. See Newsome, 90 N.M. at
798-99, 568 P.2d at 1244-45; see also Spadaro v. Univ. of N.M. Bd. of Regents, 107 N.M.
402, 404, 759 P.2d 189, 191 (1988) (stating that “[t]he Supreme Court in Newsome . . .
carved out a non-statutory ‘confidentiality exception’ to disclosure under [IPRA]”). This
non-statutory exception, also referred to as the “rule of reason,” requires the district court
to balance “the fundamental right of all citizens to have reasonable access to public records
against countervailing public policy considerations which favor confidentiality and
nondisclosure.” See Spadaro, 107 N.M. at 404, 759 P.2d at 191. This balancing test is
intended to supplement IPRA by providing a mechanism for addressing claims of
confidentiality that have not yet been specifically addressed by our Legislature. See
Newsome, 90 N.M. at 797, 568 P.2d at 1243 (noting that we apply the “rule of reason” in the
absence of legislative direction). Thus, “[t]he rule of reason analysis is applicable only to
claims of confidentiality asserted for public records that do not fall into one of the statutory
exceptions to disclosure contained in Section 14-2-1.” Spadaro, 107 N.M. at 404-05, 759
P.2d at 191-92; see also State ex rel. Barber v. McCotter, 106 N.M. 1, 2, 738 P.2d 119, 120
(1987) (“Such balancing only applies . . . to information not covered by statute.”).
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{9} In applying the “rule of reason,” however, it is still the responsibility of our courts
to give effect to the “strong public policy favoring access to public records.” See City of Las
Cruces v. Pub. Employee Labor Relations Bd., 121 N.M. 688, 691, 917 P.2d 451, 454
(1996). As our Supreme Court acknowledged in Newsome, a “citizen’s right to know is the
rule and secrecy is the exception.” Newsome, 90 N.M. at 797, 568 P.2d at 1243. Thus,
“when there is no contrary statute or countervailing public policy, the right to inspect public
records must be freely allowed.” Derringer v. State, 2003-NMCA-073, ¶ 9, 133 N.M. 721,
68 P.3d 961.
{10} To determine whether disclosure is required, we begin “[e]ach inquiry . . . with the
presumption that public policy favors the right of inspection.” See Doña Ana, 2003-NMCA-
102, ¶ 11. A public entity seeking to overcome this presumption bears the burden of
demonstrating that a countervailing public policy exists. Id. In Doña Ana, this Court
succinctly summarized the public entity’s burden as requiring proof of “why . . . disclosure
would be prejudicial to the public interest,” or, in other words, what benefit is derived from
non-disclosure. See id. Once the public entity has overcome the presumption in favor of
disclosure, the court must assess the competing public interests by “determin[ing] whether
the explanation of the custodian is reasonable” and “weigh[ing] the benefits to be derived
from non-disclosure against the harm which may result if the records are not made
available.” Id. (internal quotation marks and citation omitted).
REQUIREMENT OF DISCLOSURE
{11} The City makes multiple arguments regarding the proper construction and application
of the “rule of reason.” The City asserts that the “rule of reason” provides a balancing test
to be followed when invoking the twelfth exception to IPRA, Section 14-2-1(A)(12) (“as
otherwise provided by law”). However, the “rule of reason,” as noted above, is a non-
statutory exception to disclosure. See Newsome, 90 N.M. at 794, 798, 568 P.2d at 1240,
1244. The twelfth exception has generally been interpreted as referring to exceptions
contained in other statutes and properly promulgated regulations. See, e.g., City of Las
Cruces, 121 N.M. at 690-91, 917 P.2d at 453-54. Thus, we do not address the City’s
argument that the applications were exempt from disclosure pursuant to Section 14-2-
1(A)(12) because the City has not identified any statute or regulation that prohibits
disclosure of the information requested.
{12} The City additionally argues that Newsome established a burden-shifting test under
which the City only bore an “initial burden” of establishing a countervailing public policy
and that, therefore, the district court improperly placed the burden on the City to show that
prejudice would result from disclosure. To the extent the City contends that the district court
placed an additional burden on the City by requiring it to demonstrate the harm that would
result from disclosure, we see no difference between this burden and the burden articulated
in Newsome requiring the City to demonstrate the benefits of non-disclosure. See Newsome,
90 N.M. at 798, 568 P.2d at 1244. To the extent the City contends that a “shifting burden
is a logical and necessary interpretation of the Newsome test” and asks this Court to conclude
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that a burden should be placed on the party requesting the documents to demonstrate the
harm to the public from non-disclosure, we disagree and decline to place part of the burden
on the requesting party.
{13} Nowhere in Newsome does our Supreme Court place a burden on the party requesting
documents. Instead, Newsome clearly places “[t]he burden . . . upon the custodian to justify
why the records sought to be examined should not be furnished.” Id. Further, it would be
contrary to this state’s public policy in favor of disclosure to place a burden on the
requesting party that may be difficult or perhaps impossible to meet because the custodian
of the records has refused to make the information contained in the records known to the
requesting party. We believe our Supreme Court intended to avoid the difficulties associated
with placing part of the burden on the requesting party by creating a procedure in Newsome
that allowed the courts to view, in camera, the information in the possession of the custodian
and make a determination regarding the competing public policies based on that information.
See Doña Ana, 2003-NMCA-102, ¶ 11 (noting that, “to determine whether the explanation
of the custodian is reasonable and to weigh the benefits to be derived from non-disclosure
against the harm which may result if the records are not made available[,] the trial judge
must review the materials—preferably in camera” (internal quotation marks and citation
omitted)).
{14} We therefore read Newsome as placing the burden on the custodian of the records to
demonstrate a reason for non-disclosure and a duty on the courts to assess the potential harm
from non-disclosure through the process of in camera review. See Newsome, 90 N.M. at
798, 568 P.2d at 1244 (“The burden is upon the custodian to justify why the records sought
to be examined should not be furnished. It shall then be the court’s duty to determine
whether the explanation of the custodian is reasonable and to weigh the benefits to be
derived from non-disclosure against the harm which may result if the records are not made
available.”). Our courts can competently satisfy this duty by weighing the explanation
furnished by the custodian against the harm customarily associated with secrecy in
government—the impairment of the public’s ability to assess the actions of public officials
and to hold such public officials accountable. The requesting party has no burden to make
an evidentiary showing regarding the harm that would result from non-disclosure.
{15} The City also contends that, by not accepting the evidence presented as sufficient to
justify non-disclosure, the district court created an irrebuttable presumption in favor of
disclosure and that, if the evidence the City presented was insufficient, no public entity will
know the degree of evidence required. The City’s argument, however, is premised on a
misunderstanding of how the “rule of reason” operates. As this Court held in State ex rel.
Blanchard v. City Commissioners of Clovis, 106 N.M. 769, 772, 750 P.2d 469, 472 (Ct. App.
1988), Newsome establishes threshold requirements that must be met before the district court
ever engages in the balancing portion of the test. These threshold requirements include the
custodian’s justification as to “why the records should not be furnished.” State ex rel.
Blanchard, 106 N.M. at 772-73, 750 P.2d at 472-73. Once this threshold showing has been
made, the district court then engages in balancing the competing public policy interests. See
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id.
{16} In this case, the City attempted to put on evidence that disclosure of the applications
would deter potential applicants and reduce the quality and scope of the applicant pool.
While there is disagreement as to whether the City’s proof of its justification was
speculative, even if the City had proven that it would receive fewer applications if the hiring
process were open, it would still be left to the district court to determine whether the City’s
justification was sufficient to outweigh the public’s interest in disclosure. Therefore,
pursuant to the “rule of reason,” the amount of evidence offered to support the custodian’s
justification is of little significance if the policy itself is insufficient to outweigh the public’s
interest in disclosure.
{17} Even if the City presented sufficient evidence of its justification that its ability to
solicit as many well-qualified applicants would be hindered if the hiring process were open,
to hold that non-disclosure is appropriate, the City’s concern must be of greater public
importance than the public’s interests in ensuring that the City’s selection process was
legitimate and that the people the public had put in charge to make these decisions had, in
fact, exercised their discretion in such a way that the most qualified applicant was indeed
selected. The testimony presented by the City indicates that, absent disclosure, the public
would be required to rely on the citizens’ panel, including several public officials, to have
acted appropriately in representing the community in the City’s selection of the finalists for
the position of city manager. In this Court’s opinion, New Mexico’s policy of open
government is intended to protect the public from having to rely solely on the representations
of public officials that they have acted appropriately. See § 14-2-5; see also City of Las
Cruces, 121 N.M. at 691, 917 P.2d at 454 (stating that “a citizen has a fundamental right to
have access to public records” (internal quotation marks and citation omitted)). As a result,
when, as here, the application is for a high-ranking public position, the public’s interest in
disclosure outweighs the City’s concern that fewer people will apply, and, thus, disclosure
is required.
{18} A number of other courts that have weighed similar competing policy interests have
also concluded that disclosure was required. See, e.g., Chambers v. Birmingham News Co.,
552 So. 2d 854 (Ala. 1989); City of Kenai v. Kenai Peninsula Newspapers, Inc., 642 P.2d
1316 (Alaska 1982). In City of Kenai, two municipalities argued that they had “an interest
in attracting the largest and most qualified applicant pool” and that this interest could be best
accomplished “by not disclosing the names and resumes of applicants.” 642 P.2d at 1323
(internal quotation marks omitted). The Alaska Supreme Court held that disclosure was
required, stating:
Public officials such as City Managers, and Chiefs of Police have
substantial discretionary authority. The qualifications of the occupants of
such offices are of legitimate public concern. Disclosing the names and
applications of applicants allows interested members of the public, such as
the newspapers here, to verify the accuracy of the representations made by
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the applicants, and to seek additional information which may be relevant to
the selection process.
The applicants’ claim that revealing the names and applications of
office seekers will narrow the field of applicants and ultimately prejudice the
interests of good government is not sufficiently compelling to overcome the
public’s interest in disclosure. . . . It is not intuitively obvious that most well
qualified potential applicants for positions of authority in municipal
governments will be deterred from applying by a public selection process,
and we have been referred to no studies tending to prove that point.
The applicants’ individual privacy interests in having their names and
applications not revealed are also not of an order sufficient to overcome the
public’s interest. The applicants are seeking high government positions.
Public officials must recognize their official capacities often expose their
private lives to public scrutiny. . . .
It may be that in some cases an individual will not wish his current
employer to know that he has applied for another job. That desire is one
which cannot be accommodated where the job sought is a high public office.
See id. at 1324 (internal quotation marks and citation omitted).
{19} We consider this analysis persuasive, particularly because City of Kenai addresses
many of the arguments advanced by the City. Therefore, we conclude that an implicit
guarantee of confidentiality, as the City argues it made to its applicants in this case, is
insufficient to overcome the public’s interest in information regarding applicants for a high-
profile public position. Moreover, in City of Kenai, the court rejected the applicants’
argument that disclosure would “narrow the field of applicants and ultimately prejudice the
interests of good government.” Id. In this case, the City made a similar argument in favor
of non-disclosure; however, based on the speculative nature of the City’s argument—that
people might not apply—this justification is also insufficient to overcome the public’s
interest in disclosure. See Doña Ana, 2003-NMCA-102, ¶ 33 (rejecting policy reason
asserted by custodian of records when speculative).
APPLICABILITY OF NEWSOME
{20} As an additional argument in support of disclosure, Petitioners contend on cross
appeal that the district court erred by applying Newsome in this case, arguing that our
Legislature has implicitly determined that all employment applications, other than those for
university presidents, must be disclosed. Specifically, Petitioners rely on the Legislature’s
amendment to IPRA excluding “public records containing the identity of or identifying
information relating to an applicant or nominee for the position of president of a public
institution of higher education,” Section 14-2-1(A)(7), to advocate that no balancing test is
8
necessary in this case because, by not including other types of applications as part of the
exception, the Legislature intended disclosure of all other applications. While we agree that
the Legislature did not include other employment applications within this exception to
disclosure, we do not believe that the Legislature implicitly meant that there should be
unfettered disclosure of all other types of employment applications. Contrary to Petitioners’
argument, we believe the “rule of reason” still applies.
{21} Petitioners cite to cases stating that the Newsome balancing test “only applies . . . to
information not covered by statute” to argue that employment applications are addressed by
the statute and, thus, the “rule of reason” does not apply. See Barber, 106 N.M. at 2, 738
P.2d at 120; Spadaro, 107 N.M. at 404-05, 759 P.2d at 191-92. As we read these cases,
however, only when the documents fit within an exception to IPRA do our courts refrain
from applying Newsome. See Barber, 106 N.M. at 2, 738 P.2d at 120; Spadaro, 107 N.M.
at 404-05, 759 P.2d at 191-92. These cases do not support abandoning the “rule of reason”
simply because IPRA includes a related exception that does not apply to the requested
information. In fact, if this interpretation had been intended by Newsome, there would have
been no need to establish the “rule of reason.” See Newsome, 90 N.M. at 797-98, 568 P.2d
at 1243-44 (establishing the “rule of reason” to determine whether documents contained in
personnel records that were not explicitly exempted from the statute should be disclosed
despite the fact that the statute included exceptions relating to various other types of
personnel records). We therefore disagree with Petitioners’ contention that the district court
erred in applying Newsome. Because we rule in favor of Petitioners, we do not address their
argument that the district court erred in allowing Donna Brooks to testify as an expert
witness.
CONCLUSION
{22} The district court did not err in requiring disclosure of the requested documents.
Accordingly, we affirm.
{23} IT IS SO ORDERED.
____________________________________
JAMES J. WECHSLER, Judge
WE CONCUR:
____________________________________
MICHAEL D. BUSTAMANTE, Judge
____________________________________
MICHAEL E. VIGIL, Judge
Topic Index for City of Farmington v. The Daily Times, No. 27,858
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GV GOVERNMENT
GV-PR Public Records
ST STATUTES
ST-LI Legislative Intent
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