Libit v. Univ. of N.M. Lobo Club

516 P.3d 217

Daniel LIBIT, Plaintiff-Appellee,

v.UNIVERSITY OF NEW MEXICO LOBO CLUB; Jalen Dominguez, in his capacity as Custodian of Records for the University of New Mexico Lobo Club; University of New Mexico Foundation, Inc.; Board of Regents of the University of New Mexico; Christine Landavazo, in her capacity as the Interim Custodian of Records for the University of New Mexico, Defendants-Appellants.

No. A-1-CA-38255

Court of Appeals of New Mexico.

Filing Date: April 21, 2022

Certiorari Granted, August 16, 2022, No. S-1-SC-39396

Harrison & Hart, LLC, Nicholas T. Hart, Albuquerque, NM, for Appellee

Law Office of Marshall J. Ray LLC, Marshall J. Ray, Albuquerque, NM, for Appellants University of New Mexico Lobo Club and Jalen Dominguez

Patrick D. Allen, General Counsel, Albuquerque, NM, Montgomery & Andrews, P.A., Randy S. Bartell, Matthew A. Zidovsky, Santa Fe, NM, YLAW, P.C., Michael S. Jahner, Albuquerque, NM, for Appellant University of New Mexico Foundation, Inc.

Long, Komer & Associates, P.A., Nancy R. Long, Jonas M. Nahoum, Santa Fe, NM, for Appellant Regents of the University of New Mexico and Christine Landavazo

Martin & Lutz, PC, William L. Lutz, David P. Lutz, Las Cruces, NM, for Amicus Curiae New Mexico State University Foundation, Inc.

Miller Stratvert P.A., Dylan O'Reilly, Luke A. Salganek, Santa Fe, NM, for Amicus Curiae New Mexico Highlands University Foundation, Inc.

Hector H. Balderas, Attorney General, John F. Kreienkamp, Assistant Attorney General, Santa Fe, NM, for Amicus Curiae New Mexico Attorney General

Peifer, Hanson, Mullins & Baker, P.A., Gregory P. Williams Albuquerque, NM, for Amici New Mexico Foundation for Open Government and Brechner Center for Freedom of Information

DUFFY, Judge.

{1} This consolidated appeal arises from two lawsuits brought by Plaintiff Daniel Libit against Defendants the University of New Mexico Foundation, the University of New Mexico Lobo Club,¹ and the Board of Regents of the University of New Mexico under the Inspection of Public Records Act (IPRA), NMSA 1978, §§ 14-2-1 to -12 (1947, as amended through 2019). The Foundation and the Lobo Club are private, nonprofit corporations that raise funds exclusively for the University—a relationship governed by NMSA 1978, Section 6-5A-1 (2011) of the Public Finances Act. The common issue presented in these appeals is whether Section 6-5A-1(D) exempts records of the Foundation and the Lobo Club from public inspection. Section 6-5A-1(D) states: "Nothing in this section subjects an organization² to the provisions of the Open Meetings Act ... or makes its records, other than the annual audit required under this section, public records within the purview of Section 14-2-1 [of IPRA]." In both cases, the district court ruled that Section 6-5A-1(D) did not serve as a statutory exemption to IPRA. We agree and affirm both rulings.³

BACKGROUND

I. Libit I

{2} In late 2016 and early 2017, Plaintiff sent a number of IPRA requests to the Foundation and the University. Plaintiff sought records and communications related to a naming agreement between the University and WisePies Pizza, a restaurant chain that obtained naming rights to a major sporting facility operated by the University. The University denied Plaintiff's requests, stating that it did not possess the requested records. The University further stated that Plaintiff should contact the Foundation directly, since the Foundation was a separate entity that may have been in possession of the records. Plaintiff did so, and in response, the Foundation provided a copy of a gift agreement and a press release, but refused to release any electronic communications or financial records related to the WisePies naming agreement. The Foundation justified its refusal by stating that it was a nonprofit entity not subject to IPRA's disclosure requirements.

{3} Plaintiff filed a complaint in district court, alleging that the Foundation and the University had violated IPRA by failing to provide records responsive to his request. After completing discovery, Plaintiff and Defendants filed competing motions for summary judgment. Plaintiff argued that the Foundation was not a private entity exempt from IPRA's disclosure requirements because the Foundation functioned as an extension of the University under the nine-factor test announced in State ex rel. Toomey v. City of Truth or Consequences , 2012-NMCA-104, ¶ 13, 287 P.3d 364. Defendants argued Toomey was inapplicable because Section 6-5A-1(D) served as a statutory exemption to IPRA, thus making the records exempt from disclosure under any circumstance. The district court granted Plaintiff's motion, ruling that the Foundation was subject to IPRA under Toomey and that Section 6-5A-1(D) did not serve as a statutory exemption for the Foundation. The court ordered the Foundation to produce the records. The court simultaneously denied Plaintiff's motion against the University, ruling that disputed factual issues precluded summary judgment.

{4} The Foundation produced the records in accordance with the order, and Plaintiff and the University settled their remaining claims.⁴ The Foundation appeals the district court's ruling that Section 6-5A-1(D) does not serve as a statutory exemption to IPRA.⁵

II. Libit II

{5} In 2018, Plaintiff filed another series of IPRA requests seeking records, including donor lists, from the Lobo Club, the Foundation, and the University. The Lobo Club denied Plaintiff's requests, stating that the records were exempt from disclosure under Section 6-5A-1(D), and further, that the records were not public records under IPRA. The Foundation denied Plaintiff's requests for the same reasons, and the University stated that it did not possess the requested records.

{6} Plaintiff filed suit against all three Defendants for IPRA violations. Defendants filed separate motions to dismiss but advanced a common argument: Section 6-5A-1(D) exempted the records sought by Plaintiff from disclosure under IPRA. After a hearing, the district court ruled that Section 6-5A-1(D) did not function as an exemption to IPRA and denied the motions. In its order, however, the court certified the case for interlocutory appeal on the issue of whether Section 6-5A-1(D) serves as an IPRA exemption. Defendants filed a consolidated application for interlocutory appeal, which we accepted and now consider.

DISCUSSION⁶

{7} "IPRA provides that, with only very limited exceptions, ‘every person has a right to inspect public records of this state.’ " Cox v. N.M. Dep't of Pub. Safety , 2010-NMCA-096, ¶ 5, 148 N.M. 934, 242 P.3d 501 (alteration omitted) (quoting Section 14-2-1(A) ). This right applies equally to public records held or created by a private entity on behalf of a governmental entity, see Toomey , 2012-NMCA-104, ¶ 10, 287 P.3d 364, and "is limited only by the Legislature's enumeration of certain categories of records that are excepted from inspection." Dunn v. Brandt , 2019-NMCA-061, ¶ 6, 450 P.3d 398 (internal quotation marks and citation omitted). Among IPRA's enumerated exceptions is a "catch-all" category that exempts records "as otherwise provided by law." Section 14-2-1(H). This category has been construed to include bars to disclosure found outside of IPRA. See Republican Party of N.M. v. N.M. Tax'n & Revenue Dep't , 2012-NMSC-026, ¶ 13, 283 P.3d 853 (stating that the " ‘catch-all’ exception includes statutory and regulatory bars to disclosure," constitutionally mandated privileges, and privileges established by the rules of evidence). Putting aside questions that are not at issue in this appeal—i.e., whether the documents sought by Plaintiff are "public records" and whether the Foundation and the Lobo Club's records are subject to IPRA's disclosure requirements under Toomey —the narrow question presented is whether Section 6-5A-1(D) is a statutory bar to disclosure. This is a matter of statutory interpretation that we review de novo. Cox , 2010-NMCA-096, ¶ 4, 148 N.M. 934, 242 P.3d 501.

{8} Defendants argue that by its plain language, Section 6-5A-1(D) exempts all records created or maintained the Foundation and the Lobo Club other than their annual audits. Defendants further contend that persuasive authority and public policy justify an interpretation of Section 6-5A-1(D) to exempt records of the Foundation and the Lobo Club from IPRA's disclosure requirements. We are unpersuaded by Defendants’ arguments and hold as a matter of first impression that the Section 6-5A-1(D) is not a statutory exemption to IPRA's disclosure requirements under Section 14-2-1(H).

I. Section 6-5A-1(D) Does Not Function as a Statutory IPRA Exemption

{9} We turn first to the language of the statute as the primary indicator of legislative intent. See Toomey , 2012-NMCA-104, ¶ 9, 287 P.3d 364. Section 6-5A-1(D) states that "[n]othing in this section ... makes [an organization's] records, other than the annual audit required under this section, public records within the purview of Section 14-2-1." Defendants argue that the statutory language places "all Foundation and Lobo Club records, other than their annual audits, beyond the purview of IPRA." In support of this view, they offer only a common dictionary definition for the term "purview" before restating their conclusion that "the intent and effect of the language used in Section 6-5A-1(D) could not be more clear: it places Foundation and Lobo Club records, other than the annual audit, beyond the limit, purpose, scope, range of authority, or concern of IPRA."⁷

{10} The problem with Defendants’ construction, and the reason we cannot accept it, is that it rests on a rephrasing of the statutory language that materially changes both the wording and the meaning of the statute. Defendants read the statutory language to say, in essence, an organization's records are not within the purview of IPRA. But this is not the language chosen by the Legislature, and Defendants have not argued that it is necessary to depart from the plain language of...