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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-NMCA102, ¶ 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 nonstatutory 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 highprofile 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
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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