Am. Civ. Liberties Union of N.M. v. N.M. Corr. Dep't

The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected 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 SUPREME COURT OF THE STATE OF NEW MEXICO 1

Opinion Number: 2

Filing Date: June 15, 2026 3

NO. S-1-SC-40473 4

AMERICAN CIVIL LIBERTIES UNION 5

OF NEW MEXICO, 6

Plaintiff-Respondent, 7

v. 8

NEW MEXICO CORRECTIONS 9

DEPARTMENT and 10

ANDREW KUHLMANN 11

in his official capacity, 12 Defendants-Petitioners. 13

ORIGINAL PROCEEDING ON CERTIORARI 14

Bryan P. Biedscheid, District Judge 15 Cuddy & McCarthy, LLP 16

Scott P. Hatcher 17

Robert A. Corchine 18

Carlos J. Padilla 19

Carl J. Waldhart 20

Santa Fe, NM 21

for Petitioners 22

Davis Law New Mexico 23

Nicholas T. Davis 24

Andrew J. Lantz 25

1

Albuquerque, NM 1 American Civil Liberties Union of New Mexico 2 Maria Martinez Sanchez 3

Leon F. Howard, III 4

Albuquerque, NM 5

for Respondent 6

Rodey, Dickason, Sloan, Akin & Robb, PA 7 Charles K. Purcell 8

Albuquerque, NM 9

for Amicus Curiae New Mexico Foundation for Open Government10

2

OPINION 1

VIGIL, Justice. 2

I. INTRODUCTION 3

{1} "Recognizing that a representative government is dependent upon an 4 informed electorate," New Mexico's Inspection of Public Records Act (IPRA), 5 NMSA 1978, §§ 14-2-1 to -12 (1947, as amended through 2025), grants "[e]very 6 person . . . a right to inspect public records of this state." Sections 14-2-1, -5. This 7 right of inspection is conditioned on several exceptions, including a catch-all or 8 residual exception for records exempt from inspection "as otherwise provided by 9 law." Section 14-2-1(N)¹; see also Jones v. City of Albuquerque Police Dep't, 2020-10 NMSC-013, ¶ 19, 470 P.3d 252 (describing IPRA's "as otherwise provided by law" 11 provision as a "'catch-all' exception"). We have explained that this catch-all 12 exception "includes statutory and regulatory bars to disclosure, constitutionally 13

1 The IPRA request at the center of this suit was made in October 2019. At that time, the "as otherwise provided by law" exception was codified as Section 14-2-

3

mandated privileges, and privileges established by our rules of evidence." Pacheco 1

v. Hudson, 2018-NMSC-022, ¶ 39, 415 P.3d 505 (internal quotation marks and 2 citation omitted). In this appeal, we clarify the requirements that must be met before 3 an administrative regulation will bar inspection under IPRA's catch-all exception. 4

{2} This matter arises from a request submitted by the American Civil Liberties 5 Union of New Mexico (ACLU) to inspect records of the New Mexico Corrections 6 Department (NMCD) related to the use of force at one of NMCD's correctional 7 facilities. NMCD asserts that the requested records are exempt from inspection 8 because its policies state that the records are confidential. The ACLU, which is 9 joined in this appeal by amicus New Mexico Foundation for Open Government 10 (NMFOG), argues that NMCD's internal policies do not create an enforceable "law" 11 or a regulatory bar under IPRA's catch-all exception. 12

{3} For the reasons discussed herein, we explain that IPRA's exception for 13 records exempted "as otherwise provided by law," § 14-2-1(N), incorporates an 14 administrative regulation that has been formally promulgated and which effectuates 15 a clear legislative intent for the confidentiality, secrecy, or nondisclosure of records. 16 As NMCD's policies meet neither of these requirements, the policies do not create 17 an enforceable regulatory bar under IPRA's catch-all exception. NMCD must allow 18

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inspection of the records requested by the ACLU to the extent that those records are 1 not exempt under another law or an IPRA exception. 2

II. BACKGROUND 3

{4} In October 2019, the ACLU filed a request with NMCD seeking to inspect 4 records on the use of force at the Southern New Mexico Correctional Facility 5 (SNMCF). The ACLU represents that this request is part of an investigation into 6 complaints it had received about the violent use of force against inmates confined at 7 SNMCF. The ACLU requested records "for the time period of July 1, 2019 to the 8 present . . . pertaining to institutional use of force, restraints, and/or chemical agents 9

. . . used to discipline, restrain, subdue, or otherwise exert control over any person 10 in SNMCF custody." The ACLU also sought incident reports on the use of force at 11 SNMCF, the names of employees involved in any such incidents, and "[a]ll policies 12 and procedures regarding institutional use of force, restraints, and/or chemical 13 deployment at SNMCF." 14

{5} NMCD categorically denied the ACLU's request. NMCD asserted that the 15 records were exempt from inspection because "NMCD has designated its use of 16 force policies as confidential." NMCD further indicated that, to the extent that the 17 requested records "implicate inmate grievances," those "grievances and complaints 18 are confidential or nonpublic information." 19

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{6} The ACLU sued to enforce its request. Both the ACLU and NMCD 1 subsequently filed cross-motions for summary judgment in the district court, seeking 2 a ruling on whether IPRA's catch-all exception applies to the requested records. As 3 support for its summary judgment motion, NMCD asserted that disclosure of 4 incident or inmate grievance reports would violate NMCD's institutional records 5 policy, N.M. Corr. Dep't, Institutional Records, CD-040101(C)(1)(g) (June 9, 6 2016),²and it attached its inmate grievance policies which provide that inmate 7

"[g]rievances are . . . privileged," N.M. Corr. Dep't, Inmate Grievances, CD-150500 8 Policy (C)(8) (June 14, 2018),³and "will be treated as strictly confidential," id. at 9 CD-150501(G).⁴NMCD attached an affidavit from its chief deputy general counsel 10 attesting that the confidentiality provisions in these policies promoted prison safety 11 by assuring inmates that they would not be subject to retaliation for lodging 12

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complaints about other inmates and staff. NMCD also cited the heavily redacted 1 front page of its use-of-force policy, CD-130600, which provides, "NOT TO BE 2

PLACED IN INMATE LIBRARIES OR AVAILABLE TO THE PUBLIC. 3

LIMITED DISTRIBUTION AND DUPLICATION TO EMERGENCY 4

PREPAREDNESS SECURITY MANUALS ONLY." NMCD's counsel further 5 attested that "confidentiality of [its use-of-force] policies is instrumental to their 6 effectiveness." NMCD's counsel further asserted—in a later affidavit attached to 7 NMCD's motion to reconsider summary judgment favoring the ACLU—that 8 secrecy surrounding the circumstances under which correctional officers are 9 permitted to use force contributes to a "perceived unpredictability of officers [which] 10 disincentivizes inmate violence." (Emphasis omitted.) In its motion for summary 11 judgment, the ACLU argued that IPRA's catch-all exception only incorporates 12 formally promulgated regulations, authorized by statutes that specifically 13 contemplate the confidentiality of documents or information and that NMCD had 14 not identified such regulations. 15

{7} The district court initially denied NMCD's summary judgment motion and 16 took the ACLU's summary judgment motion under advisement pending an in-17 camera review of the records. After reviewing the records, the district court issued 18 another order explaining that its "analysis and application of the law has changed" 19

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and that the court now concluded that NMCD could withhold portions of the records 1 if "clearly shown to be necessary for administration of the Corrections Act[, NMSA 2 1978, §§ 33-1-1 to -9 (1969, as amended through 2009)]." Applying this standard, 3 the district court found that certain records, including portions of NMCD's use-of-4 force policy, "properly fall under the [catch-all] exception in their entirety or must 5 be redacted prior to inspection because of necessity under [the Corrections Act]." 6

{8} Both NMCD and the ACLU filed notices of appeal. The Court of Appeals 7 reversed, concluding the district court erred in applying a "clear necessity" standard 8 to withhold portions of the requested records. Am. Civ. Liberties Union of N.M. v. 9 N.M. Corr. Dep't, 2024-NMCA-071, ¶¶ 4, 18-19, 556 P.3d 565. The Court of 10 Appeals also held, "[A] general enabling statute alone is insufficient to qualify for 11 the catch-all exception," and a regulation seeking to exempt records from inspection 12 instead must be "based on more specific statutes that relate[] to the effects of 13 disclosure and the confidentiality of the information." Id. ¶¶ 14, 15. Reasoning that 14 NMCD's policies did not meet this standard, the Court of Appeals held that the 15 records must be made available for inspection. Id. ¶¶ 15-19. We granted NMCD's 16 petition for writ of certiorari to review the Court of Appeals' opinion. We now 17 affirm. 18

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III. DISCUSSION 1

{9} This is not the first time that we have considered whether IPRA's "as 2 otherwise provided by law" exception, § 14-2-1(N), incorporates an administrative 3 regulation which seeks to limit the right to inspect public records. In City of Las 4 Cruces v. Public Employee Labor Relations Board (Public Employee), we held that 5 IPRA's catch-all exception "contemplates [an administrative] regulation properly 6 promulgated" which has "the force of law." 1996-NMSC-024, ¶ 5, 121 N.M. 688, 7

917 P.2d 451, overruled in part on other grounds by Republican Party of N.M. v. 8 N.M. Tax'n & Revenue Dep't, 2012-NMSC-026, ¶ 16, 283 P.3d 853. We further 9 explained that a regulation will have the force of law if "promulgated in accordance 10 with the statutory mandate to carry out and effectuate the purpose of the applicable 11 statute." Public Employee, 1996-NMSC-024, ¶ 5. We now consider whether IPRA's 12 catch-all exception, as construed by Public Employee, incorporates NMCD's 13 policies asserting the confidentiality of certain public records. As discussed below, 14 we conclude that the policies were not properly promulgated and do not have the 15 force of law under IPRA's catch-all exception. See id. 16

A. Public Employee and the Scope of IPRA's Catch-All Exception 17

{10} The meaning of IPRA's "as otherwise provided by law" exception, § 14-2-18 1(N), presents an issue of statutory construction. "The standard of review for issues 19

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of statutory interpretation and construction is de novo." State v. Johnson, 2001-1 NMSC-001, ¶ 5, 130 N.M. 6, 15 P.3d 1233. When construing the meaning of a 2 statute, "We examine the plain language of the statute as well as the context in which 3 it was promulgated, including the history of the statute and the object and purpose 4 the Legislature sought to accomplish." Jones, 2020-NMSC-013, ¶ 17 (internal 5 quotation marks and citation omitted). Throughout this analysis, we are guided by 6 IPRA's purpose, which is "to ensure . . . that all persons are entitled to the greatest 7 possible information regarding the affairs of government and the official acts of 8 public officers and employees." Section 14-2-5; see also Faber v. King, 2015-9 NMSC-015, ¶ 8, 348 P.3d 173 ("We construe IPRA in light of its purpose."). 10

{11} We begin with Public Employee, where we considered whether IPRA's catch-11 all exception included a Public Employee Labor Relations Board (Labor Board) 12 regulation providing for the confidentiality of representation elections. 1996-13 NMSC-024, ¶¶ 1-3. The City of Las Cruces had filed an IPRA request seeking 14 records from the Labor Board relating to a police officer association's representation 15 election, including a petition containing signatures of the collective bargaining unit 16 members. Id. ¶ 3. The Labor Board refused the City's IPRA request, relying in part 17 on the Labor Board's regulation which provided, "'Evidence of a showing of interest 18 submitted to the Board in support of a representation petition . . . shall be kept 19

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confidential by the Board.'" Id. (emphasis omitted) (citations omitted); see also 1 11.21.1.21 NMAC (compiling the Labor Board's ab initio regulation, the current 2 version of which is, in effect, identical to the regulation at issue in Public Employee). 3 The City sued to enforce its request. Public Employee, 1996-NMSC-024, ¶ 4. The 4 district court denied relief, and the Court of Appeals certified the City's appeal to 5 this Court. Id. 6

{12} On certification, the City argued that IPRA's catch-all exception 7

"incorporates only confidentiality provisions of statutes, thus precluding the [s]tate 8 from relying upon regulations promulgated by an administrative board." Id. ¶ 5. The 9 City further argued that the Labor Board's regulation improperly attempted to 10 modify IPRA "in order to ensure the confidentiality of the documents at issue." Id. 11 We disagreed, holding that the exception for records exempted "'as otherwise 12 provided by law' as used in [Section 14-2-1(N)] contemplates a regulation properly 13 promulgated to further the legislative intent behind the [Public Employee Bargaining 14 Act]." Public Employee, 1996-NMSC-024, ¶ 5. We reasoned that the Labor Board's 15 regulation was authorized by statutes that protected employees' rights to organize 16 without interference and "to conduct representation elections in secret." Id. ¶ 6. We 17 further concluded that the regulation "effectuates the provisions of the [Public 18 Employee Bargaining Act] to protect the rights of public employees to collective 19

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bargaining and to ensure that their choice to do so remains private." Id. ¶ 7. Thus, 1 we held the Board could withhold the records pursuant to its "statutorily authorized 2 regulation." Id. 3

{13} As an additional issue, Public Employee considered whether the Labor 4 Board's records could be withheld under the rule of reason. Id. ¶¶ 4, 8-10. This Court 5 introduced the rule of reason in State ex rel. Newsome v. Alarid, 1977-NMSC-076, 6 ¶¶ 33-35, 90 N.M. 790, 568 P.2d 1236, overruled by Republican Party, 2012-7 NMSC-026, ¶ 16. Under the rule of reason, we recognized a nonstatutory exception 8 for the inspection of records when disclosure ran "contrary [to] statute or 9 countervailing public policy." Newsome, 1977-NMSC-076, ¶ 34; Bd. of Comm'rs v. 10 Las Cruces Sun-News, 2003-NMCA-102, ¶ 17, 134 N.M. 283, 76 P.3d 36 ("[T]he 11 countervailing public policy, or 'rule of reason' as it is often referred to, is a non-12 statutory confidentiality exception." (citation omitted)), overruled in part by 13 Republican Party, 2012-NMSC-026, ¶ 16. Applying the rule of reason, Public 14 Employee concluded that the policies and privacy interests underlying employees' 15 rights to organize "would be seriously undermined" by disclosure of the requested 16 records. 1996-NMSC-024, ¶ 11. We therefore held that protecting employees' 17 privacy interests under the rule of reason provided an additional basis for 18 withholding the records. Id. ¶ 12. 19

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{14} Sixteen years after Public Employee, we abandoned the rule of reason in 1 Republican Party, 2012-NMSC-026, ¶ 16. There, we noted that Newsome had 2 adopted the rule of reason because, at the time, the Legislature had not yet 3

"'delineat[ed] what records are subject to public inspection and those that should be 4 kept confidential in the public interest'" under IPRA. Republican Party, 2012-5 NMSC-026, ¶ 15 (quoting Newsome, 1977-NMSC-076, ¶ 33). However, subsequent 6 amendments to IPRA had "obviat[ed] any need that existed for application of the 7 'rule of reason[]' by enumerating specific exceptions to disclosure . . . and 8 maintaining the exception 'as otherwise provided by law.'" Id. ¶ 16 (citation 9 omitted). We therefore overruled prior cases applying the rule of reason, instructing 10 our courts to instead "restrict their analysis to whether disclosure under IPRA may 11 be withheld because of a specific exception contained within IPRA, or statutory or 12 regulatory exceptions, or privileges adopted by this Court or grounded in the 13 constitution." Id. 14

{15} Accordingly, Public Employee has been overruled to the extent it applied the 15 rule of reason as grounds for withholding the Labor Board's records. 1996-NMSC-16 024, ¶¶ 8-12. However, the rule of reason provided a nonstatutory exception to the 17 right of inspection, distinct from IPRA's catch-all exception. City of Farmington v. 18 Daily Times, 2009-NMCA-057, ¶¶ 8, 11, 146 N.M. 349, 210 P.3d 246 (explaining 19

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that the rule of reason doctrine applies "only to claims of confidentiality asserted for 1 public records that do not fall into one of the statutory exceptions to disclosure 2 contained in Section 14-2-1," including the catch-all exception which instead applies 3

"to exceptions contained in other statutes and properly promulgated regulations" 4 (internal quotation marks and citation omitted)), overruled in part by Republican 5 Party, 2012-NMSC-026, ¶ 16. Thus, Public Employee remains good law with 6 respect to its construction of IPRA's "as otherwise provided by law" exception, § 7 14-2-1(N). 8

B. The Catch-All Exception Includes Formal Regulations Authorized by 9

Statutes Expressing an Intent for the Confidentiality of Records 10

{16} The parties disagree about how Public Employee applies to the records sought 11 in the ACLU's request. NMCD argues that its policies are authorized by the 12 Corrections Department Act, NMSA 1978, §§ 9-3-1 to -13 (1977, as amended 13 through 2019), in Section 9-3-5(E), and by the Corrections Act in Section 33-1-6(B). 14 Both Section 9-3-5(E) and Section 33-1-6(B) are part of NMCD's general enabling 15 acts, granting the Secretary of Corrections the authority to "make and adopt such 16 reasonable and procedural rules and regulations as may be necessary to carry out the 17 duties of the department and its divisions." Section 9-3-5(E); accord § 33-1-6(B) 18 (authorizing the Secretary of Corrections to "adopt rules and regulations necessary 19 for administration of the Corrections Act"). NMCD reasons that the confidentiality 20

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provisions in its policies "carry out and effectuate" its duties under the Corrections 1 Act and Corrections Department Act and thus have the force of law as contemplated 2 by Public Employee, 1996-NMSC-024, ¶ 5. 3

{17} The ACLU and NMFOG disagree. They argue that an administrative 4 regulation must be formally promulgated in order to qualify for IPRA's catch-all 5 exception. See id. (stating that IPRA's catch-all exception incorporates "properly 6 promulgated" regulations). NMFOG argues that NMCD's policies are insufficiently 7 formal and characterizes the confidentiality language in those policies as "mere 8 rubber-stamp legends affixed to the records at the direction of the Secretary of 9 Corrections." The ACLU and NMFOG further assert that, even if formally 10 promulgated, an administrative regulation must effectuate a statute specifically 11 contemplating the confidentiality of documents or information in order to qualify for 12 IPRA's catch-all exception. In their view, NMCD's enabling statutes are too 13 generalized to provide the statutory authority for even a formally-promulgated 14 confidentiality regulation. 15

{18} We agree with the ACLU and NMFOG, as we conclude that NMCD proposes 16 too broad a reading of Public Employee and of IPRA's catch-all exception. 17 Republican Party instructs our courts to narrowly apply exceptions to IPRA's right 18 of inspection, restricting their analysis to whether a record may be withheld under 19

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one of several specifically delineated categories or the catch-all exception. See 2012-1 NMSC-026, ¶ 16. We likewise conclude that courts should take a narrow approach 2 when incorporating regulatory bars to disclosure under IPRA's "as otherwise 3 provided by law" exception, § 14-2-1(N). Cf. Dunn v. N.M. Dep't of Game & Fish, 4 2020-NMCA-026, ¶ 14, 464 P.3d 129 (noting that Republican Party prohibits an 5 agency's creation of "an additional policy-based exception" under IPRA that is not 6 authorized by IPRA or other statutes, regulations, or constitutional or evidentiary 7 privileges). 8

{19} Administrative agencies have been delegated the authority to promulgate 9 regulations "in a reasonable manner consistent with legislative intent, in order to 10 develop the necessary policy to respond to unaddressed or unforeseen issues." City 11 of Albuquerque v. N.M. Pub. Regul. Comm'n, 2003-NMSC-028, ¶ 16, 134 N.M. 472, 12

79 P.3d 297. But "an administrative agency has no power to create a rule or 13 regulation that is not in harmony with its statutory authority." Princeton Place v. 14 N.M. Hum. Servs. Dep't, Med. Assistance Div., 2022-NMSC-005, ¶ 29, 503 P.3d 15 319 (internal quotation marks and citation omitted). Under IPRA, "The citizen's 16 right to know is the rule and secrecy is the exception." Newsome, 1977-NMSC-076, 17 ¶ 34. Accordingly, an administrative agency does not have the authority to 18 promulgate a regulation that is inconsistent with IPRA unless the Legislature has 19

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specifically delegated authority to the agency to formally promulgate regulations 1 which limit the right of inspection. 2

{20} Public Employee supports this conclusion. While holding that Section 14-2-3 1(N)'s "as otherwise provided by law" language encompasses administrative 4 regulations, Public Employee also described that regulation as "properly 5 promulgated," as having "the force of law," and as "statutorily authorized." Public 6 Employee, 1996-NMSC-024, ¶¶ 5, 7. To meet these descriptors, a regulation must 7 be a "legislative rule," meaning that the regulation has been authorized by the 8 Legislature and promulgated using formal rulemaking procedures involving public 9 notice and comment and a public hearing. See City of Albuquerque, 2003-NMSC-10 028, ¶¶ 16-18 (explaining that the Legislature may delegate authority to an 11 administrative agency to issue a legislative rule after a period of public notice and 12 comment and public hearing and that such legislative rules will carry the force of 13 law). In the absence of these formal rulemaking procedures, an agency's rules or 14 policies will serve only as "interpretive rules," offering guidance to staff and the 15 public about the agency's interpretation of its enabling statutes and legislative rules. 16 Princeton Place, 2022-NMSC-005, ¶¶ 27-30. Unlike legislative rules, these 17 interpretive rules do not have the force of law. Id. ¶ 30. Public Employee held that 18

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IPRA's catch-all exception incorporates a formally promulgated legislative rule, see 1 1996-NMSC-024, ¶ 12, not an agency's interpretive guidance. 2

{21} We also note that the Labor Board's regulation in Public Employee 3 effectuated statutes which clearly expressed an intent for the confidentiality of 4 employees' representation elections. See id. ¶¶ 5-6. Indeed, Public Employee 5 emphasized that the authorizing statutes "specifically provide[d]" that employers 6 were prohibited from interfering with, discouraging, or discriminating against 7 employees with respect to their participation in a labor organization and specifically 8 guaranteed the rights of employees to organize and "to conduct representation 9 elections in secret." Id.; see also Edenburn v. N.M. Dep't of Health, 2013-NMCA-10 045, ¶¶ 24-26, 299 P.3d 424 (explaining that the formally promulgated regulation in 11 Public Employee carried the force of law "because the authorizing statute 12 specifically prohibited discouraging, interfering with, restraining, or otherwise 13 impeding employees' rights to organize"). 14

{22} Consistent with this discussion, our Court of Appeals' decisions applying 15 Public Employee have required that regulations seeking to exempt records disclosure 16 under IPRA's catch-all exception be "based on and serve the purposes of a statute 17 or statutes that are specifically related to the effects of disclosure and the 18 confidentiality of the information." Beck v. State ex rel. Child., Youth & Fams. 19

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Dep't, 2024-NMCA-082, ¶ 5, 560 P.3d 24 (brackets and internal quotation marks 1 omitted) (quoting Am. Civ. Liberties Union, 2024-NMCA-071, ¶ 15). For example, 2 in Edenburn, the Court of Appeals held that Department of Health regulations which 3 provided that certain draft documents were nonrecords for purposes of the Public 4 Records Act, NMSA 1978, §§ 14-3-1 to -23 (1959, as amended through 2015), did 5 not serve as a regulatory bar to disclosure under IPRA's catch-all provision. 6 Edenburn, 2013-NMCA-045, ¶¶ 23-26. The Edenburn Court noted that the 7 regulations in Public Employee effectuated a legislative intent to protect the rights 8 and privacy of public employees in collective bargaining. Edenburn, 2013-NMCA-9 045, ¶ 26. In contrast, the purpose of the Public Records Act was "solely 10 organizational." Edenburn, 2013-NMCA-045, ¶ 26 (citing Section 14-3-6). Thus, 11 Edenburn held that the regulations authorized to effectuate the Public Records Act's 12 organizational purpose did not have the force of law for purposes of IPRA's catch-13 all exception. Id. We agree with the Court of Appeals that, under Public Employee, 14 the legislation which serves as the authority for a regulation must express an intent 15 specifically pertaining to the confidentiality or nondisclosure of records. Such 16 legislative specificity is necessary to prevent IPRA's catch-all exception from 17

"swallow[ing] the rule of disclosure based on the whim of NMCD or other 18 government agencies." Am. Civ. Liberties Union, 2024-NMCA-071, ¶ 16. 19

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{23} Accordingly, we reaffirm and clarify our holding in Public Employee that 1 IPRA's catch-all exception incorporates regulatory bars to disclosure when (1) the 2 regulation is legislatively authorized and has been formally promulgated through a 3 process involving public notice and comment and a public hearing, as required by 4 applicable administrative law, and (2) the regulation effectuates a statute or statutes 5 revealing a clear legislative intent for the confidentiality, secrecy, or nondisclosure 6 of the records. These requirements ensure that regulatory exceptions to disclosure 7 are applied consistently with both the legislative intent to grant the public a general 8 right of inspection, §§ 14-2-1, -5, and a legislative intent to delegate authority to an 9 administrative agency to limit that right of inspection. 10

{24} When considering regulatory exceptions to the right of inspection, courts 11 should avoid weighing policy interests, as this balancing of competing interests is 12 inconsistent with our abandonment of the rule of reason in Republican Party, 2012-13 NMSC-026, ¶ 16. The regulation must instead effectuate a clearly expressed 14 legislative intent to exempt the records from disclosure. See Libit v. Univ. of N.M. 15 Lobo Club, 2022-NMCA-043, ¶ 13, 516 P.3d 217 ("When the Legislature has 16 intended to exempt records from public inspection in other enactments, it has done 17 so expressly by stating either that records are not public records or that records are 18 not subject to disclosure under IPRA."). Nevertheless, the Legislature's intent to 19

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exempt the records need not be explicit, and a regulation barring disclosure does not 1 need to "simply repeat the language of the authorizing statute," as otherwise there 2 would be no need for the regulation. Beck, 2024-NMCA-082, ¶ 30. For example, in 3 Beck, the Court of Appeals held that the Children, Youth and Families Department 4 could withhold records from public inspection under regulations authorized by 5 multiple statutes expressing an intent to protect the identities of children and families 6 in the care of the department. Id. ¶¶ 29-30. The Court of Appeals concluded that the 7 regulation was lawfully extended to protect foster parents' identities, even though 8 the authorizing statutes only explicitly mentioned adoptive parents, because the 9 regulation effectuated the intent of the authorizing statutes. Id. We view this result 10 in Beck as being consistent with Public Employee and with the requirements we have 11 clarified herein. 12

C. IPRA's Catch-All Provision Does Not Incorporate NMCD's Policies 13

{25} We now apply our holding to the circumstances presented. We conclude that 14 NMCD's confidentiality policies do not provide an enforceable regulatory exception 15 to the right of inspection under Section 14-2-1(N). 16

1. NMCD's confidentiality policies were not formally promulgated 17

{26} We first conclude that the confidentiality provisions in NMCD's inmate 18 records and use-of-force policies are not "regulation[s] properly promulgated" as 19

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required by Public Employee, 1996-NMSC-024, ¶ 5, and by IPRA's catch-all 1 exception, § 14-2-1(N). NMCD asserts, and we agree, that the Secretary of 2 Corrections is generally authorized to adopt policies pursuant to the Corrections Act, 3 § 33-1-6(B), and the Corrections Department Act, § 9-3-5(E). However, the record 4 does not show that its confidentiality policies were formally promulgated under a 5 process involving public notice and comment and a public hearing. 6

{27} Rather than attempting to show that these policies were formally promulgated, 7 NMCD instead asserts that formal rulemaking procedures do not apply to its 8 policies. NMCD points out that the State Rules Act, NMSA 1978, §§ 14-4-1 to -11 9 (1967, as amended through 2017), provides that a "rule" as defined by that 10 enactment, "does not include rules relating to the management, confinement, 11 discipline or release of inmates of any penal or charitable institution." Section 14-4-12 2(F). NMCD reasons that its policies address the management, confinement, and 13 discipline of inmates and thus carry the force of law notwithstanding any compliance 14 with the procedures of the State Rules Act. While we acknowledge that Section 14-15 4-2(F) expresses an intent to exclude inmate rules from the State Rules Act, we 16 disagree that the confidentiality provisions in NMCD's policies fall within the scope 17 of a Section 14-4-2(F) inmate rule exception to the rulemaking process referenced 18 in Section 14-4-2(G). Although the substantive provisions of NMCD's policies are 19

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directed towards inmates, the portions of those policies which seek to withhold 1 records from public inspection plainly affect the public at large, not just the inmates 2 at NMCD's penal institutions. 3

{28} Similarly, the Corrections Act provides that: 4 [N]o regulation affecting any person or agency outside [NMCD] shall 5 be adopted, amended or repealed without a public hearing on the 6 proposed action . . . . Notice of the subject matter of the regulation . . . 7 shall be published once at least thirty days prior to the hearing . . . . All 8 rules and regulations shall be filed in accordance with the State Rules 9 Act. 10

Section 9-3-5(E). We can think of no better example of a "regulation affecting any 11 person or agency outside" of NMCD than policies which seek to exempt records 12 from public inspection. Id.; cf. N.M. Found. for Open Gov't v. Corizon Health, 2020-13 NMCA-014, ¶ 21, 460 P.3d 43 ("Information about the mistreatment and abuse of 14 New Mexico inmates . . . is exactly the type of public information that IPRA 15 contemplates must be disclosed to the public in order to hold its government 16 accountable."). Thus, we disagree with NMCD that its confidentiality policies have 17 the force of law even though they were not formally promulgated. Rather, the 18 Legislature plainly intended formal rulemaking procedures to apply to NMCD rules 19 and regulations which affect the rights of the public. Section 9-3-5(E). 20

{29} Because NMCD failed to promulgate its confidentiality policies in accordance 21 with formal rulemaking procedures, those policies serve only as interpretive rules 22

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which provide internal guidance about the treatment of NMCD's records. Princeton 1 Place, 2022-NMSC-005, ¶ 28. Described as potentially persuasive as opposed to 2 controlling, id. ¶ 30, interpretive rules such as NMCD's informal policies do not 3 create an enforceable regulatory bar to inspection under IPRA's "as otherwise 4 provided by law" exception, § 14-2-1(N). 5

2. Even if formally promulgated, NMCD's policies do not effectuate a 6

statute expressing a legislative intent for the confidentiality of the records 7

{30} Even if the confidentiality provisions in NMCD policies had been formally 8 promulgated, NMCD has not shown that the policies effectuate a statute or statutes 9 that express a clear legislative intent for the confidentiality of NMCD's records. 10 NMCD identifies only its general rulemaking statutes, § 9-3-5(E); § 33-1-6(B), as 11 the authority for these confidentiality provisions. The statutes generally provide that 12 the Secretary of Corrections may adopt "rules and regulations as may be necessary 13 to carry out the duties of the department and its divisions." Section 9-3-5(E); § 33-14 1-6(B) (providing that the Secretary of Corrections shall "adopt rules and regulations 15 necessary for administration of the Corrections Act, and enforce and administer 16 those so adopted"). But these statutes are silent on NMCD's authority to promulgate 17 rules pertaining to the confidentiality of the records sought in the ACLU's request. 18 These statutes thus do not provide the clear expression of legislative intent as 19 required by Public Employee, 1996-NMSC-024, ¶ 5. 20

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{31} NMCD nevertheless argues that we should construe Section 9-3-5(E) and 1 Section 33-1-6(B) in harmony with statutes and constitutional provisions which 2 require NMCD to maintain safe prisons. See, e.g., Farmer v. Brennan, 511 U.S. 825, 3 833-34 (1994) (concluding that a prison official's deliberate indifference to a 4 substantial risk of serious harm may violate an inmate's rights under the cruel and 5 unusual punishment clause of the Eighth Amendment to the United States 6 Constitution). NMCD further suggests that this Court should defer to the Secretary 7 of Corrections' determination that these confidentiality provisions effectuate these 8 implicit safety concerns. In this regard, NMCD suggests that we should apply the 9 inmate civil rights First Amendment standard adopted in Turner v. Safley, 482 U.S. 10 78, 89-90 (1987), when considering whether its confidentiality policies effectuate 11 these implicit safety concerns. Thus, under NMCD's proposed standard, its 12 confidentiality provisions effectuate Section 9-3-5(E) and Section 33-1-6(B) and 13 thus carry the force of law for purposes of IPRA's catch-all exception if shown to 14 be "reasonably related to legitimate penological interests." Turner, 482 U.S. at 89. 15

{32} We conclude that Turner is inapposite to the question presented. Courts have 16 accorded significant deference to prison administrators in adopting prison rules 17 because "[s]ubjecting the day-to-day judgments of prison officials to an inflexible 18 strict scrutiny analysis would seriously hamper their ability to anticipate security 19

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problems and to adopt innovative solutions to the intractable problems of prison 1 administration." Id.; accord Overton v. Bazzetta, 539 U.S. 126, 131-32 (2003) 2 (recognizing that Turner's standard promotes separation of powers because prison 3 administrators "bear a significant responsibility for defining the legitimate goals of 4 a corrections system and for determining the most appropriate means to accomplish 5 them"). But the principles of separation of powers and judicial restraint underlying 6 Turner's deferential civil rights standard shed little light on legislative intent in the 7 IPRA context. Unlike Turner, which addresses concerns unique to prison 8 administration, IPRA addresses broader societal concerns about governmental 9 transparency and the need to sustain an informed electorate. Section 14-2-5. We 10 therefore decline to rely on Turner as a means for construing an implicit legislative 11 intent to require confidentiality of NMCD's records, as IPRA and Turner address 12 markedly different interests. See Am. Civ. Liberties Union, 2024-NMCA-071, ¶ 11 13 ("Turner's discussion of 'legitimate penological interests' and deference to prison 14 authorities is irrelevant to NMCD's obligations under IPRA. To import Turner's 15 analysis here would be to mix rutabagas and watermelons; the inquiries are that 16 different." (citation omitted)). 17

{33} Applying Turner's standard in the IPRA context would also resurrect the rule 18 of reason doctrine that we have abandoned, as we would be required to weigh the 19

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legitimacy of NMCD's asserted safety interests against the governmental 1 transparency interests underlying IPRA's right of inspection.⁵NMCD asserts that its 2 proposed standard would not require a balancing of interests because this Court 3 would merely grant NMCD the same deference the agency has been given in the 4 context of civil rights litigation. But this deference would only further undermine 5 IPRA's right of inspection. As amicus NMFOG points out, the language in Section 6 9-3-5(E) and Section 33-1-6(B) which delegates rulemaking authority to the 7 Secretary of Corrections is identical to the language used in other statutes which 8 delegate rulemaking authority to other New Mexico agencies. Compare § 9-3-5(E) 9 ("The secretary [of the Corrections Department] may make and adopt such 10 reasonable and procedural rules and regulations as may be necessary to carry out the 11 duties of the department and its divisions."), with NMSA 1978, § 9-2A-7(D) (1993) 12 ("The secretary [of the Children, Youth, and Families Department] may make and 13 adopt such reasonable and procedural rules and regulations as may be necessary to 14

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carry out the duties of the department and its divisions."), and NMSA 1978, § 9-7-1 6(E) (2017) ("The secretary [of the Department of Health] may make and adopt such 2 reasonable procedural rules as may be necessary to carry out the duties of the 3 department and its divisions."), and NMSA 1978, § 9-19-6(E) (2015) ("The 4 secretary [of the Department of Public Safety] may make and adopt such reasonable 5 and procedural rules and regulations as may be necessary to carry out the duties of 6 the department and its divisions."). We fail to see how Section 9-3-5(E) and Section 7 33-1-6(B) differ from these other enabling statutes with respect to the authority to 8 promulgate IPRA exceptions. And if we were to apply Turner's deferential standard 9 in construing this generalized enabling language, we would essentially be 10 recognizing these other agencies' authority to exempt records from inspection so 11 long as they articulate a rational basis on which to do so. See State v. Swayne, 2025-12 NMSC-047, ¶ 24, 580 P.3d 192 (explaining that Turner "established a form of 13 rational basis review for the validity of prison rules"). This would eviscerate the 14 IPRA right of inspection. We cannot construe Section 9-3-5(E) and Section 33-1-15 6(B) so discordantly with IPRA's purpose, which is to provide the public with "the 16 greatest possible information" on official actions. Section 14-2-5. 17

{34} As explained herein, Public Employee requires regulatory bars under IPRA's 18 catch-all exception to be grounded in a clear expression of legislative intent for the 19

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confidentiality, secrecy, or nondisclosure of records. Aside from the prison safety 1 concerns embodied in Turner and Brennan, NMCD does not identify anything in 2 Section 9-3-5(E)'s and Section 33-1-6(B)'s language, structure, history, or context 3 which reveals a clear legislative intent for the secrecy of the records sought in the 4 ACLU's IPRA request. As NMCD does not identify any other statutory authority 5 for its confidentiality policies, we conclude that the policies do not "carry out and 6 effectuate the purpose of [an] applicable statute" as relevant to IPRA's catch-all 7 exception. Public Employee, 1996-NMSC-024, ¶ 5. 8

{35} NMCD may issue interpretive rules guiding its staff about the internal 9 treatment of its records. However, NMCD may not create an enforceable regulatory 10 exception to IPRA's right of inspection in the absence of a clear legislative 11 delegation of authority to do so. NMCD must instead appeal to the Legislature if it 12 believes that its prison safety concerns support an exemption for these records. 13

IV. CONCLUSION 14

{36} IPRA's exception for public records that may be withheld from inspection "as 15 otherwise provided by law," § 14-2-1(N), includes an administrative regulation 16 which has been formally promulgated and which effectuates a clear legislative intent 17 for the confidentiality, secrecy, or nondisclosure of records. NMCD's internal 18 policies do not meet these requirements. We therefore affirm the Court of Appeals 19

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