The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is sele cted for publication by the Court, it is assigned a vendor

- neutral citation by the Chief Clerk for compliance with Rule 23

- 112 NMRA , authenticated and formally published . The slip opinion may contain deviations from the formal authenticated opinion. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1
Opinion Number: _____________ 2
Filing Date: May 10, 2023 3

No. A

- 1

- CA

- 39724 4

TINA TAWATER, 5

Plaintiff

- Appellant, 6

v. 7

BOARD OF COMMISSIONERS FOR 8 THE COUNTY OF SANDOVAL and 9 DIEGO TRUJILLO (in his official 10 capacity as records custodian), 11

Defendants

- Appellees. 12

APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY 13 James A. Noel, District Court Judge 14

Grover Law, LLC 15 Thomas R. Grover 16 Albuquerque, NM 17
for Appellant 18

Law Office of Michael Dickman 19 Michael Dickman 20 Santa Fe , NM 21

f or Appellee 22OPINION 1
BUSTAMANTE, Judge, retired, sitting by designation. 2

{1} T his case involves the Inspection of Public Records Act (IPRA), NMSA 1978, 3

§§ 14

- 2

- 1 to

- 12 (1947, as amended through 2023). Plaintiff Tina Tawater appeals 4
the district court’s order exempting three documents from inspection under IPRA. 5
Plaintiff argues the district court e rred in determining that (1) all three documents 6
are subject to attorney

- client privilege under Rule 11

- 503 NMRA, and are therefore 7
exempt from inspection under IPRA
, Section 14

- 2

- 1(G); and (2) the third document 8
is exempt from inspection on the additional ground that it constitutes a letter or 9
memoranda that is a matter of opinion in personnel files, and therefore exempt from 10
inspection under IPRA
, Section 14

- 2

- 1(C). 1 We reverse the district court’s 11
determination that attorney

- client privilege exempts the first document from 12
inspection
, but affirm the district court’s determination that the privilege exempts 13
the second and third documents from inspection. Because we conclude attorney

14
client privilege exempts the third document from inspection, we do not re ach the 15

1 Some sections of IPRA were amended in 2023, after Plaintiff’s request for the documents at issue in this case. The exemption for “attorney

- client privileged information” was renumbered from Section 14

- 2

- 1(F) to 14

- 2

- 1(G) but is substantively identical. The exemption for “letters or memoranda that are matters of opinion in personnel files,” see § 14

- 2

- 1(C), is identical. Because the 2023 amendments do not impact this appeal, we cite the current codification of IPRA for ease of reference.2 district court’s determination that this document is also exempt from inspection
, 1

pursuant to Section 14

- 2

- 1(C). 2

BACKGROUND 3

{ 2 } In June 2019, Plaintiff submitted an IPRA request to the County of Sandoval 4
(the County) seeking to inspect certain records, including emails sent between the 5
County’s Public Information Officer and the County Manager concerning IPRA 6
lawsuits involving the County and the County’s processing of IPRA requests. The 7
County produced certain records but advised Plaintiff that certain records were 8
provided with portions redacted and that other responsive records were not disclosed 9
because they fell within IPRA’s e xceptions for “ attorney

- client privileged 10

information
, ” or “ letters or memoranda that are matters of opinion in personnel 11

files. ” Section 14

- 2

- 1(C), (G). 12

{ 3 } Plaintiff sued the Board of Commissioners for the County and Diego Trujillo 13
in his official capac ity as records custodian ( collectively, Defendants), claiming that 14
Defendants violated IPRA by denying her the opportunity to inspect records 15
responsive to her IPRA request. Defendants, in turn, file d an unopposed motion for 16

in camera review of the three d ocuments withheld from Plaintiff that are at issue in 17
this appeal: (1) an email sent by the Public Information Officer to four recipients: 18
the County Manager, two attorneys for the C ounty, and another C ounty employee 19
on January 7, 2019 (the January 7 email ); (2) an email sent by the Public Information 203 Officer to the County Manager on January 25, 2019 (the January 25 email); and (3) 1
an email sent by the Public Information Officer to the Chairman of the County’s 2
Board of Commissioners (the Chairman)
, and the County Manager on April 25, 2019 3
(the April 25 email). 4

{ 4 } After reviewing the three emails in camera, the district court issued its order, 5
determining that each email is exempt from inspection under IPRA. The district 6

court concluded that all three emails are protected from disclosu re by attorney

- client 7
privilege and thus exempt from inspection pursuant to IPRA , Section 14

- 2

- 1. The 8
district court also concluded that the April 25 email is exempt from inspection on an 9
additional ground

— under IPRA’s exception for letters or memoranda that are 10
matters of opinion in personnel files, pursuant to Section 14

- 2

- 1(C). Plaintiff 11
appeals. 12

DISCUSSION 13

{ 5 } Plaintiff argues that the district court incorrectly determined that attorney

14
client privilege protects the emails from disclosure. “Although questions concerning 15
discovery matters are generally reviewed for abuse of discretion, questions involving 16
. . . the application of a pr ivilege are reviewed de novo.” Breen v. N.M. Tax’n & 17
Revenue Dep’t , 2012

- NMCA

- 101, ¶ 21, 287 P.3d 379. 18

{ 6 } IPRA provides that “[e]very person has a right to inspect public records of 19

this state.” Section 14

- 2

- 1. There are, however, exceptions; as relevant here, IPRA 204 exempts from inspection “attorney

- client privileged information.” Section 14

- 2

- 1
1(G); Republican Party of N .M. v. N .M. Tax’n & Revenue Dep’t , 2012

- NMSC

- 026, 2
¶ 16, 283 P.3d 853 (observing attorney

- client privilege as one of the specific 3
exceptions to disclosure under IPRA). 4

{ 7 } Rule 11

- 503, in turn, governs the scope of the attorney

- client privilege in New 5

Mexico. Bhandari v. Artesia Gen. Hosp. , 2014

- NMCA

- 018, ¶ 11, 317 P.3d 856. The 6
rule states, in relevant part, that 7

B

. A client has a privilege to refuse to disclose . . . a 8 confidential communication made for the purpose of facilitating or 9 providing professional legal services to that client, 10
(1) between the client and the client’s lawyer or 11 representative; 12
(2) between the client’ s lawyer and the lawyer’s 13 representative; 14
(3) b etween the client or client’s lawyer and another 15 lawyer representing another in a matter of common interest; 16
(4) between representatives of the client or between the 17 client and a representative of the client; or 18
(5) between lawyers representing the client. 19

Rule 11

- 503(B). Accordingly, t he elements of attorney

- client privilege are “(1) a 20
communication (2) made in confidence (3) between privileged persons (4) for the 21
purpose of f acilitating the attorney’s rendition of professional legal services to the 22

client.” S anta Fe Pac. Gold Corp. v. United Nuclear Corp. , 2007

- NMCA

- 133, ¶ 14, 235 143 N.M. 215, 175 P.3d 309. Plaintiff concedes that the three emails at issue 1

constitute communicatio ns , but argues that each email fails to meet one or more of 2
the remaining elements of the privilege. Based on our in camera review of these 3
communications, we conclude that attorney

- client privilege exempts two of the three 4
emails from inspection under IPR A. 5

I

. Attorney Client

- Privilege Does Not Exempt the January 7 Email From 6 Inspection Under IPRA 7

{8 } The January 7 email was sent by the Public Information Officer to four 8
recipients: the County Manager, two attorneys for the C ounty, and another C ounty 9
employee. The email’s subject line includes the phrase, “Attorney[

- ]Client 10
Privileged Communication,” and the body of the email discusses the Public 11

Information Officer ’s handling of an IPRA request. 12

{ 9 } Plaintiff argues attorney

- client privilege doe s not exempt the January 7 email 13
from inspection under IPRA, contending that the communication was not intended 14
to secure legal advice. Defendant s disagree, pointing out that the email’s subject line 15
states, “Attorney[

- ]Client Privileged Communication,” an d that the recipients 16
included attorneys for the County. 17

{1 0 } Attorney

- client privileges requires that a communication be “made for the 18
purpose of facilitating or providing professional legal services to that client.” Rule 19

11

- 503(B); see S anta Fe Pac. Gol d Corp. , 2007

- NMCA

- 133, ¶ 14 (inter n al 20
quotation marks and citation omitted)

. Our review shows that the January 7 email 216 was not made for this purpose, but rather to apprise its recipients of a decision
, which 1
the Public Information Officer had previously m ade concerning an IPRA request, 2
and that this decision fell squarely within the scope of her regular duties. The content 3
of this email provides no indication that it was made for the purpose of acquiring 4
legal advice or necessary for the rendition of a leg al opinion. See S anta F e Pac. Gold 5
Corp. , 2007

- NMCA

- 133, ¶ 13 (“A client may claim attorney

- client privilege . . . if 6
the communications were made for the purpose of acquiring legal advice for the 7

client

. ”); see also id. ¶ 23 (recognizing that a “communica tion between an attorney 8
and a client is not privileged unless it is necessary for the rendition of a legal opinion 9
or legal advice.” (internal quotation marks and citation omitted)). 10

{ 1 1} Defendants fail to persuade us otherwise. Defendants develop no argument 11
addressing the email’s purpose and provide no analysis of its content. Instead, 12
Defendants rely on the Public Information Officer designat ion of the email as 13
“Attorney[

- ]Client Privil eged,” but this designation alone does not alter our 14

determination, based on our review of its content, regarding the email’s purpose

. See 15

Bhandari , 2014

- NMCA

- 018, ¶¶ 1, 19, 21 (concluding that a memorandum prepared 16
by a hospital’s general counsel
, which b ore the heading “confidential and subject to 17

attorney

- client privilege” was not privileged based in part on an examination of the 18
memorandum’s content (alterations and internal quotation marks omitted)). 197 Attorney

- client privilege does not exempt the Januar y 7 email from inspection under 1

IPRA. 2

II

. Attorney Client

- Privilege Exempts the January 25 and April 25 Emails 3 From Inspection Under IPRA 4

{1 2 } We start by summarizing these emails. The January 25 email was sent by the 5

Public Information Officer to the County Manager and summarizes conversations 6
between the Public Information Officer and attorneys for the County. The 7
conversations, as summarized in the email, relate to a lawsuit filed by Plaintiff 8
against the County, and include the attorneys’ interpreta tion of the scope of 9
Plaintiff’s IPRA request related to that lawsuit and direction to the Public 10
Information Officer relate to the request. This email also discusses the Public 11
Information Officer’s concerns with one attorney’s interpretation of the scope of 12
Plaintiff’s IPRA request and direction con cerning that request. 13

{1 3 } The April 25 email , sent by the Public Information Officer to the County 14
Manager and the Chairman, is similar. This email summarizes a conversation 15

between the Public Information Officer and attorneys for the County. The 16
conversation, as summarized in the email, addresses a pending lawsuit filed by 17
Plaintiff against the County, including how the County should respond to an 18
interrogatory relating to an IPRA request from Plaintiff, an attorney’s interpretation 19
of IPRA and assessment of the scope of Plaintiff’s IPRA request
, and an attorney’s 20
direction to the Public Information Officer related to Plaintiff’s IPRA request. The 218 April 25 email also discusses the Public Informa tion Officer’s concerns about an 1
attorney’s interpretation of IPRA. 2

{1 4 } Plaintiff argues attorney

- client privilege does exempt these emails from 3
inspection under IPRA. For the reasons that follow, we disagree. 4

{1 5 } As discussed, the January 25 and April 25 emails summarize conversations 5
between the Public Information Officer and attorneys for the County. Plaintiff does 6
not dispute that the actual conversations, which address pending litigation and 7
contain legal advice and opinions, are protected by attorn ey

- client privilege. See 8

Santa Fe Pac. Gold Corp , 2007

- NMCA

- 133, ¶¶ 13, 23; Henry v. N .M. Livestock 9

B d. , ___ - NMCA

-

__ _ , ¶ 35 , ___ P.3d ___ ( A

- 1

- CA

- 37758 , Apr

. 28, 202 3 ) 10
(concluding that an attorney’s communications with agency line staff members can 11
be subj ect to attorney

- client privilege). We must therefore determine whether 12

attorney

- client privilege protects the Public Information Officer’s written summaries 13
of these privileged conversations relayed to the County Manager and the Chairman 14
in the January 25 and April 25 emails. 15

{1 6 } Plaintiff argues these emails are not protected, contending they were neither 16
(1) between “ privileged persons ,” S anta Fe Pac. Gold Corp.
, 2007

- NMCA

- 133 , 17

¶ 14 , because they were not sent to or from a lawyer ; n or (2) made for the purpose 18
of facilitating legal services. We review these arguments in turn. 199 {1 7 } Contrary to Plaintiff’s first argument, the scope of the privilege is not limited 1

to communications betwee n a client and lawyer, but also encompasses 2
communications “between representatives of the client.” Rule 11

- 503(B)(4); cf. Rule 3

11

- 503(B)(1). Plaintiff does not dispute that the client in this case is the County. See 4

Rule 11

- 503(A) (1) (defining “client” to include an “association
, or other entity who 5
consults with, seeks advice from, or retains the professional services of a lawyer”). 6

Plaintiff also does not dispute that the parties to these emails

— the County’s Public 7
Information Officer, the County Manager , and the Chairman

— are “representatives” 8
of the County. See Rule 11

- 503(B)(4); see also Henry ,

___ - NMCA

- ___, ¶ 35 9
(concluding that attorney

- client privilege can apply to communications with a 10
agency’s staff members). The January 25 and April 25 emails were therefore 11
“between privileged persons.” S anta Fe Pac. Gold Corp. , 2007

- NMCA

- 133, ¶ 14. 12

{1 8 } As to Plaintiff’s se cond argument, we conclude that the January 25 and April 13

25 emails, which summarize privileged conversations, were “ made for the purpose 14
of facilitating or providing professional legal services to that client.” Rule 11

- 15
503(B); see S anta Fe Pac. Gold Corp.
, 2007

- NMCA

- 133, ¶ 14. Our conclu sion is 16
based on the language of Rule11

- 503 and the purpose of the privilege. 17

{1 9 } As discussed, Rule 11

- 503 (A)(1) defines “client” to include a “corporation, 18
association, or other entity,” and protects certain communication s “between 19
representatives of the client.” Rule 11

- 503(B)(4). This language indicates that the 2010 r

ule’s drafters contemplated that the privilege could apply in an organizational 1
context, in which it might not be feasible for an attorney to directly provide 2

p rivileged legal advice to all representatives of the organization who can act on it. 3

See Henry ,

___ - NMCA

- ___, ¶ 33 (recognizing that in the corporate context the 4
privilege exists, in part, “to protect . . . the giving of professional advice to those 5

who ca n act on it” (omission in original) (quoting Upjohn Co. v. United States , 449 6
U.S. 383, 390 (1981)); see also Rule 11

- 503(A) (4) (“[A] communication is 7
‘confidential’ if made privately and not intended for further disclosure except to 8
other persons in furtherance of the purpose of the communication .” (emphasis 9
added)). Thus, in an organizational context, the r ule’s language and rat ional e 10
indicate that the privilege can extend to the relaying of privileged legal advice 11
between representatives of an organizational client who can act on that advice. See 12

Rule 11

- 503(A)(1), (B)(4); Henry , ___ - NMCA

- ___, ¶ 33

. 13

{ 20 } This interpretation is s upported by “the purpose of the privilege, which is to 14
encourage the free flow of information between attorney and client.” S anta Fe Pac. 15
Gold Corp. , 2007

- NMCA

- 133, ¶ 18; see id. ¶ 5 (“The purpose of the privilege . . . 16
provides the guiding principle in de termining whether a communication is 17
protected.” (citation omitted) ). Protecting such derivative communications in an 18
organizational context encourages the free flow of privileged legal advice to those 19
representatives of the organizational client in a posi tion to act on it. 2011 { 2 1} Based on the foregoing, we conclude that a communication relaying 1
privileged legal advice between representatives of an organizational client who can 2

act on that advice qualifies as being “made for the purpose of facilitating or 3

pr oviding professional legal services to that client.” Rule 11

- 503(B); see Henry ,

___ - 4

NMCA

- ___, ¶ ¶ 15 , 33 . We now consider whether the January 25 and April 25 emails 5

meet this standard. 6

{22 } As discussed, these emails summarize privileged conversations containing 7
legal advice related to pending litigation against the County and relay this privileged 8
advice between representatives of the County. And we are satisfied that, under the 9
circumstances of this case, the representatives of the Count y included on these 10

emails

— the Public Information Officer, the County Manager, and the Chairman

— 11
were in positions to act on the legal advice summarized in these communications 12
relating to a pending lawsuit against the County. W e therefore conclude that the 13
January 25 and April 25 emails were “made for the purpose of facilitating or 14
providing professional legal services to that client.” Rule 11

- 503(B)

. Moreover, 15
considering that the Public Information Officer relayed these emails only to 16
representatives of t he County in positions to act on the privileged advice summarized 17

therein, and in light of Plaintiff’s failure to develop an argument addressing whether 18
the January 2 5 and April 25 emails were “made in confidence,” see Santa Fe Pac. 19
Gold Corp. , 2007

- NMCA

- 1 33, ¶ 14, we likewise conclude these communications 2012 were “confidential.” See Rule 11

- 503(A)(4) (providing that “a communication is 1
‘confidential’ if made privately and not intended for further disclosure except to 2
other persons in furtherance of the purpos e of the communication ” (emphasis 3
added)); see also Corona v. Corona , 2014

- NMCA

- 071, ¶ 26, 329 P.3d 701 (“The 4
appellate court presumes that the district court is correct, and the burden is on the 5
appellant to clearly demonstrate that the district court err ed.”). 6

{ 23 } To the extent the January 25 and April 25 emails also contain discussion s and 7
concerns about the privileged legal advice summarized therein, this material does 8

not alter our conclusion that the emails were made for the purpose of facilitating or 9
providing professional legal advice to the County. To begin, our review indicates 10

t hat it would be difficult to reveal this material without also revealing the substance 11
of the privileged legal advice summarized in these emails. Moreover, “[t]he purpose 12
of the privilege, to encourage full and frank communication between a client and its 13
attorney,” S anta Fe Pac. Gold Corp , 2007

- NMCA

- 133, ¶ 25, is served by protecting 14
the discussion of privileged legal advice which accompanies the sharing of that 15
advice. Here, sharing privileged legal advice and concerns about that advice with the 16
County Ma nager , the Chairman, and the Public Information Officer made available 17

to the County leadership the information needed to engage in full and frank 18
discussion about that advice with attorneys for the County. 1913 { 24 } In sum, attorney

- client privilege exempts th e January 25 and April 25 emails 1
from inspection under IPRA. Because attorney

- client privilege exempts the April 25 2

email from inspection, we need not reach Plaintiff’s argument that the distr ict court 3
erred in exempting this email from inspection on the a dditional ground that it fa ll s 4
within IPRA’s exception for “letters or memoranda that are matters of opinion in 5
personnel files.” Section 14

- 2

- 1(C); see Crutchfield v. N.M. Dep’t of Tax’n & 6

Revenue , 2005

- NMCA

- 022, ¶ 36, 137 N.M. 26, 106 P.3d 1273 (“A revie wing court 7
generally does not decide academic or moot questions.”). 8

CONCLUSION 9

{ 25 } We reverse the district court’s determination that attorney

- client privilege 10
exempts the January 7 email from inspection under IPRA, and remand this matter 11
for further pr oceedings consistent with this o pinion. We affirm the district court’s 12
determination that the privilege exempts the January 25 and April 25 emails from 13
inspection

. 14

{ 26 } IT IS SO ORDERED. 15

________ ____________________________ 16 MICHAEL D. BUSTAMANTE, Judge, 17 retired, sitting by d esignation. 1814 WE CONCUR: 1

________________________________ 2 JACQUELINE R. MEDINA , Judge 3

________________________________ 4 ZACHARY A. IVES, Judge 5