AGO IAL082307.

• Case Date: August 23, 2007
• Court: New Mexico

New Mexico Attorney General Opinions 2007. AGO IAL082307. IAL082307August 23, 2007The Honorable Patrick H. LyonsCommissioner of Public LandsP.O. Box 1148 Santa Fe, NM 87504-1148 Re: Opinion Request - Applicability of Inspection of Public Records ActDear Commissioner Lyons: You asked for our advice regarding the applicability of the Inspection of Public Records Act, NMSA 1978, §§ 14-2-1 to -12 (1947, as amended through 2005) ("IPRA"), to certain records maintained by the State Land Office. In particular, your inquiry stems from a request from a newspaper reporter for access to commercial lease files containing appraisals, interoffice memoranda, field reports and attorney-client documents. As discussed below, we conclude that unless documents contained in the commercial lease files are protected from disclosure by law or legally recognized countervailing public policy, they must be made available in response to an inspection request under IPRA. Under IPRA, "[e]very person has a right to inspect any public records," except those described in IPRA. NMSA 1978, § 14-2-1. In addition, New Mexico courts have adopted a "rule of reason" that allows a public body to deny access to public records when there is a "countervailing public policy" against disclosure. State ex rel. Newsome v. Alarid, 90 N.M. 790, 797, 568 P.2d 1236 (1977).(fn1) A countervailing public policy will justify nondisclosure only in rare instances where the harm to the public interest from allowing inspection of a record outweighs the public's right to know. Id. at 798. Because of New Mexico's clear policy in favor of public access to the workings of government and, in addition, the potential financial consequences to a public body that improperly denies access to its records, public bodies should rely on countervailing public policy to deny an inspection request only when it is "necessary under the circumstances, clearly outweighs the public's interest in inspecting the records and is likely to be recognized as valid by the courts." New Mexico Attorney General's IPRA Compliance Guide, p. 26 (4th ed. Jan. 2004) ("IPRA Guide"). IPRA covers all "public records," which are broadly defined as:

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

NMSA 1978, § 14-2-6(E). Thus, the State Land Office must make records contained in commercial lease files it maintains available for inspection upon request, unless they are excepted under IPRA. IPRA lists eleven specific exceptions from the inspection right, NMSA 1978, §§ 14-2-1(A)(1)-(11), followed by a twelfth "catch-all" provision that excepts records "as otherwise provided by law." § 14-2-1(A)(12). The first eleven exceptions do not appear to cover the...