Journal v. Bd. of Educ.

1

ALBUQUERQUE JOURNAL and KOB-TV, LLC, Plaintiffs-Appellants/Cross-Appellees, v. BOARD OF EDUCATION OF ALBUQUERQUE PUBLIC SCHOOLS and RIGO CHAVEZ, in his capacity as Custodian of Records for Board of Education for Albuquerque Public Schools, Defendants-Appellees/Cross-Appellants.

No. A-1-CA-40172

Court of Appeals of New Mexico

October 30, 2024

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Nancy J Franchini, District Court Judge

Peifer, Hanson, Mullins & Baker, P.A. Charles R. Peifer Gregory P. Williams Albuquerque, NM for Appellants

Ortiz & Zamora, Attorneys at Law, LLC Tony F. Ortiz Daniel R Rubin Jessica R. Terrazas Santa Fe, NM for Appellees

OPINION

J. MILES HANISEE, JUDGE

{¶1} This appeal is the second arising from a long-running dispute between Plaintiffs Albuquerque Journal (the Journal) and KOB-TV, LLC and Defendants the Board of Education (the Board) of Albuquerque Public Schools (APS) and its prior records custodian, Rigo Chavez. Plaintiffs, advancing their case under the Inspection of Public Records Act (IPRA or the Act) NMSA 1978, §§ 14-2-1 to -12 (1947, as amended through 2023), seek public disclosure of certain documents related to the abrupt and premature resignation of Winston Brooks in 2014, then-Superintendent of APS, and the associated $350,000 buyout of his contract with public funds. In their direct appeal, Plaintiffs contend that the district court erred in concluding that a particular investigatory report, prepared by attorney Agnes Fuentevilla Padilla at the behest of the Board (the Padilla Report or the Report), fits within either of two enumerated exceptions to IPRA: public records that are matters of opinion contained within a personnel file, or public records protected by attorney-client privilege. See § 14-2-1(C), (G). On cross-appeal, Defendants challenge the district court's determination regarding IPRA's applicability to certain other documents, the district court's award of damages to Plaintiffs, and its denial of Defendants' requests for court costs. For the reasons set forth below, we affirm the district court on all grounds.

BACKGROUND

{¶2} The general factual background underlying this case was explained by this Court in our prior opinion resolving a separate appeal in this matter. See Albuquerque J. v. Bd. of Educ. of Albuquerque Pub. Schs., 2019-NMCA-012, ¶¶ 3-5, 436 P.3d 1. We incorporate the facts set forth in that opinion and supplement them here as pertinent to the specific issues now before us.

{¶3} On August 7, 2014, the Journal sent its first records request to APS seeking production of "any report Agnes Padilla . . . has provided through her legal services to the district." On August 8, 2014, Chavez denied the request on behalf of APS, stating that the only responsive document, the Padilla Report, was both a matter of opinion within a personnel file and a confidential legal communication. Plaintiffs thereafter filed the instant enforcement action seeking production of the Padilla Report in addition to other records discussed below. In April 2015, Defendants moved for summary judgment regarding the Padilla Report's status as excepted from disclosure under IPRA, but the case was then delayed by an appeal taken by Brooks' attorney, Maureen Sanders, who contested an order compelling disclosure of pertinent information she possessed regarding the Padilla Report to Plaintiffs. See Albuquerque J., 2019-NMCA-012. Notably, while Defendants were not originally a party to Sanders' appeal, they opted to participate in the proceeding by opposing Plaintiffs' right to the information Sanders possessed, even informing this Court by motion that "the central issues of [Sanders'] appeal bear on the core interests of APS."

{¶4} The resolution of Sanders' appeal took almost three-and-a-half years during which litigation regarding Defendants' motion for summary judgment stopped. After the case was remanded back to the district court, Plaintiffs filed their own cross-motion for summary judgment, seeking production of the Padilla Report and requesting that the district court conduct an in camera review of the document. The district court denied Plaintiffs' motion and granted Defendants' previously filed motion without reviewing the Padilla Report itself, agreeing with Defendants that the public record is excepted from inspection in its entirety as both a matter of opinion within a personnel file and because it is protected by attorney-client privilege under Sections 14-2-1(C) and 14-2-1(G) of IPRA.0f^[1] The district court thus determined as a matter of law that the Padilla Report is not subject to inspection under IPRA.

{¶5} The case thereafter proceeded to trial on Plaintiffs' remaining records requests. The district court found that Defendants committed nine separate violations of IPRA's fifteen-day production requirement by failing to identify several records responsive to Plaintiffs' requests and provide for their inspection, or otherwise give a reasonable explanation as to why certain records were being withheld. See § 14-2-8(D). The district court collectively awarded Plaintiffs $411,625 in statutory damages and $214,911.76 in attorney fees and court costs. Defendants appeal various determinations supporting such awards.

{¶6} While Defendants' IPRA violations relate to numerous records requests, the documents principally at issue in Defendants' cross-appeal are (1) Padilla's billing records for services rendered in relation to the Padilla Report; (2) two anonymous "hotline complaints" in which the complainants alleged misconduct by Brooks or his wife, Ann Brooks, and (3) an APS-created investigative report about one such complaint. As to the billing records, Defendants received the Journal's relevant IPRA request on September 3, 2014, but Chavez did not respond substantively until September 26. Chavez's response stated that APS "ha[d] no records to provide," but, purportedly unbeknownst to him, the billing records had been hand-delivered to Analee Maestas, then-President of the Board, on September 25, one day prior.

{¶7} The two "hotline complaints" at issue are anonymous reports originating either through a "1-800" telephone number or a publicly accessible online webpage, both of which are maintained by a third-party vendor called Ethical Advocate. The report about one of the hotline complaints was made by APS's Internal Audit Department as an investigatory follow-up. Regarding all three records, the Journal made its relevant request on September 2, 2014, but Defendants again did not respond until September 26. Although Defendants possessed all three responsive records at the time of the request, their letter in response disclosed the existence of only one hotline complaint, stated that Defendants were not disclosing the complaint because it constituted a matter of opinion contained within a personnel file, and made no mention of the other complaint or the related report. Defendants did, in fact, later produce both complaints for inspection-but not the report-albeit more than two years after Plaintiffs' request.

{¶8} Following trial, the district court concluded that Defendants possessed the billing records at the time of the denial of Plaintiffs' request and violated IPRA in declaring otherwise. The court concluded as well that the hotline complaints were not "matters of opinion" excepted from IPRA, see § 14-2-1(C), and Defendants' failure to produce the complaints for two years, or even identify the report about one of them, were wrongful denials of those records under IPRA. After trial, both Plaintiffs and Defendants filed the instant competing appeals.

DISCUSSION

I. Plaintiffs' Appeal

{¶9} On direct appeal, Plaintiffs challenge the district court's summary judgment determination that the Padilla Report is entirely excepted from production under IRPA on both grounds determined by the district court to be applicable, namely Sections 14-2-1(C) and 14-2-1(G) (matters of opinion within a personnel file and attorney-client privilege, respectively). We address each exception in turn, beginning with attorney-client privilege.

A. Standard of Review

{¶10} We review an order granting or denying summary judgment de novo. Jones v. City of Albuquerque Police Dep't 2020-NMSC-013, ¶ 16, 470 P.3d 252. "Summary judgment is appropriate in the absence of any genuine issues of material fact and where the movant is entitled to judgment as a matter of law." Id. (internal quotation marks and citation omitted). When considering an order on summary judgment, we view facts "in a light most favorable to the nonmoving party and drawing all reasonable inferences in support of a trial on the merits." Id. (internal quotation marks and citation omitted). "A party may not simply argue that such evidentiary facts might exist, nor may it rest upon the allegations of the complaint." Romero v. Philip Morris Inc., 2010-NMSC-035, ¶ 10, 148 N.M. 713, 242 P.3d 280 (text only) (citation omitted). The district court's entry of summary judgment in this case requires us to determine the applicability of various IPRA exceptions to the Padilla Report, which is a question of law we also review de novo. See Cox v. N.M. Dep't of Pub. Safety, 2010-NMCA-096, ¶ 4, 148 N.M. 934, 242 P.3d 501 ("The meaning of language used in a statute is a question of law that we review de novo." (internal quotation marks and citation omitted)). In particular, we review the applicability of a privilege de novo. Breen v. N.M. Tax'n & Revenue Dep't, 201...