Albuquerque J. v. Bd. of Educ. of Albuquerque Pub. Schs.

Opinion

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.

1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 2 Opinion Number: 3 Filing Date: May 28, 2026 4 NO. S-1-SC-40671

5 ALBUQUERQUE JOURNAL and 6 KOB-TV, LLC,

7 Plaintiffs-Petitioners, 8 v.

9 BOARD OF EDUCATION OF ALBUQUERQUE 10 PUBLIC SCHOOLS and RIGO CHAVEZ, in his 11 capacity as Custodian of Records for Board 12 of Education for Albuquerque Public Schools,

13 Defendants-Respondents.

14 ORIGINAL PROCEEDING ON CERTIORARI 15 Nancy J. Franchini, District Judge 16 Peifer, Hanson, Mullins & Baker, PA 17 Charles R. Peifer 18 Gregory P. Williams 19 Matthew E. Jackson 20 Albuquerque, NM 21 for Petitioners

22 Ortiz & Zamora Attorneys at Law, LLC 23 Tony F. Ortiz 24 Jessica R. Terrazas 25 Santa Fe, NM 1 for Respondents 2 Law Office of Daniel Yohalem 3 Daniel Yohalem 4 Santa Fe, NM

5 for Amici Curiae New Mexico Foundation for Open Government, The Santa Fe New 6 Mexican, El Rito Media LLC & American Civil Liberties Union of New Mexico

7 Amanda Lavin 8 Albuquerque, NM

9 for Amicus Curiae New Mexico Foundation for Open Government 1 OPINION 2 ZAMORA, Justice. 3 {1} “Our democratic system of government necessarily assumes the existence of 4 an informed citizenry. Without some protection for the acquisition of information 5 about the operation of public institutions the process of self-governance 6 contemplated by the Framers would be stripped of its substance.” Republican Party 7 of N.M. v. N.M. Tax’n & Revenue Dep’t, 2012-NMSC-026, ¶ 1, 283 P.3d 853 (text 8 only) 1 (citation omitted). These fundamental protections are guaranteed to our 9 citizens by New Mexico’s Inspection of Public Records Act (IPRA), NMSA 1978, 10 §§ 14-2-1 to -12 (1947, as amended through 2025). “IPRA creates a presumption in 11 favor of access [to public records]” to help ensure that “our citizens [are] able to 12 know what their own public servants are doing in their name.” San Juan Agric. 13 Water Users Ass’n v. KNME-TV, 2011-NMSC-011, ¶ 15-16, 150 N.M. 64, 257 P.3d 14 884. This presumptive right “is limited only by the Legislature’s enumeration of 15 certain categories of records that are excepted from inspection” under IPRA. 16 Republican Party of N.M., 2012-NMSC-026, ¶ 13.

1

“(Text only)” indicates the omission of nonessential punctuation marks—

including internal quotation marks, ellipses, and brackets—that are present in the text of the quoted source, leaving the quoted text otherwise unchanged.

1 {2} This appeal calls on us to determine the intended meaning and scope of two 2 of IPRA’s exceptions from inspection, specifically: “letters or memoranda that are 3 matters of opinion in personnel files,” § 14-2-1(C), and “attorney-client privileged 4 information,” § 14-2-1(G). The centerpiece of this appeal is a long-sealed 5 investigative report (the Padilla Report) prepared by outside counsel, Agnes 6 Fuentevilla Padilla, Esq. (Attorney Padilla), for Defendant Board of Education of 7 Albuquerque Public Schools (APS). See Albuquerque J. v. Bd. of Educ. of 8 Albuquerque Pub. Schs. (Albuquerque J. II), 2025-NMCA-020, ¶¶ 1, 3, 576 P.3d 9 367. The two Plaintiffs—the Albuquerque Journal and KOB-TV, LLC—request 10 access to inspect the report. See id. ¶ 1. The district court and the Court of Appeals 11 held that the Padilla Report was excepted from inspection and denied Plaintiffs 12 access. Id. ¶ 31. 13 {3} We granted certiorari and reverse the Court of Appeals as well as the decision 14 of the district court. In doing so, we hold that (1) because the purpose of the Padilla 15 Report was not primarily to provide legal advice, the attorney-client privilege 16 exception does not apply here, and (2) the matters-of-opinion exception does not 17 preclude inspection of the purely factual, nonopinion portions of the Padilla Report. 18 We also hold that the Padilla Report is not wholly exempt from public inspection if 19 it contains both exempt and nonexempt information under the matters-of-opinion 1 exception in Section 14-2-1(C). Instead, Section 14-2-9(A) requires exempt 2 information to be separated and removed or redacted and “nonexempt information 3 [to] be made available for inspection.” We abrogate recent Court of Appeals 4 opinions that have held otherwise. See Henry v. Gauman, 2023-NMCA-078, ¶¶ 18- 5 20, 536 P.3d 498 (“When an exemption applies to a document as a whole, as Section 6 14-2-1(C) does, Section 14-2-9(A) requires the custodian of records to separate 7 exempt documents from nonexempt documents.” (emphasis added)); Energy Pol’y 8 Advocs. v. Balderas, 2024-NMCA-081, ¶ 16, 560 P.3d 37 (citing Henry, 2023- 9 NMCA-078, ¶ 20). 10 I. BACKGROUND 11 {4} This IPRA enforcement action stems from “the abrupt and premature 12 resignation” of APS Superintendent Winston Brooks in 2014, and the $350,000 13 publicly funded buyout of Brooks’s contract by the APS Board of Education. See 14 Albuquerque J. II, 2025-NMCA-020, ¶ 1. Although Brooks’s resignation and the 15 resulting settlement agreement with APS generated considerable media interest at 16 the time, the agreement by its terms “contained no discussion of the reasons 17 underlying the decision to prematurely terminate” Brooks’s contract with APS, 18 instead providing that “‘[n]othing in this [a]greement or in its execution admits 19 wrongdoing of any kind by either party’ and that the agreement was ‘mutually 1 entered for the benefit of each party.’” See Albuquerque J. v. Bd. of Educ. of 2 Albuquerque Pub. Schs. (Albuquerque J. I), 2019-NMCA-012, ¶ 4, 436 P.3d 1 3 (alterations in original). Plaintiffs sought to uncover the reasons for the settlement 4 agreement by filing multiple IPRA requests, many of which sought documents that 5 Defendants withheld from their IPRA responses based on the attorney-client 6 privilege and matters-of-opinion exceptions identified above. Id. ¶ 5. 7 {5} The document at the center of this controversy is the Padilla Report. Attorney 8 Padilla was hired as outside counsel in July 2014 by then APS Board President, Dr. 9 Analee Maestas, by way of a brief engagement letter. The hiring terms of that 10 agreement were vague. Attorney Padilla agreed to provide “professional legal 11 services to the Board,” which included but were not limited to “research and inquiry 12 into matters of concern to the Board and consultation with the Board President and 13 members of the Board concerning the results of [the investigation].” Also bearing 14 on the purpose of the Padilla Report was “Maestas’s verbal statement at a [closed] 15 board meeting indicating that she sought counsel ‘to provide the Board with factual 16 information’ and ‘clear [Brooks] of these accusations once and for all.’” 17 Albuquerque J. II, 2025-NMCA-020, ¶ 12 (second alteration in original). Both 18 Attorney Padilla and Dr. Maestas submitted affidavits to the district court indicating 19 their mutual understanding that the communications related to Attorney Padilla’s 1 hiring—as well as the Padilla Report itself—were intended to be confidential and 2 privileged. 3 II. THE CONTENTS OF THE PADILLA REPORT 4 {6} We have examined the contents of the Padilla Report to resolve the questions 5 surrounding the applicability of the two IPRA exceptions at issue here.2 The report, 6 formally titled “Preliminary Inquiry Superintendent Winston Brooks” and bearing a 7 “Confidential Attorney Client Privilege” stamp, was directed to “Dr. Analee 8 Maestas, Board President” individually. The report is twelve pages long and contains 9 seven distinct sections: (I) Description of Allegation, (II) Applicable Policies, (III) 10 Witnesses, (IV) Inquiry Findings, (VI) [sic] Additional Information, (VI) 11 Conclusion, and (VII) Exhibits and Evidence. Three of the identified sections are a 12 single paragraph, while three others—including the Conclusion—do not exceed a

2

This Court’s description of the contents of the Padilla Report is necessarily restricted by the report’s sealed status. See Rule 12-314(H) NMRA (“Court records sealed in the district . . . court that are filed in the appellate courts shall remain sealed in the appellate courts. The appellate court judges and staff may have access to the sealed court records unless otherwise ordered by the appellate court.”). We confine our discussion of the contents of the Padilla Report to its format, structure, and headings, omitting any direct reference to potentially confidential substantive information addressed in the report. The goal of this approach is to enable readers to “know what the suit is about or assess the [Court’s] disposition of it . . . without jeopardizing any legitimate interest” such as a party’s privilege. See generally Baxter Int’l, Inc. v. Abbott Lab’ys, 297 F.3d 544, 546 (7th Cir. 2002).

1 half-page each. The remaining eight-and-a-half pages of the report are devoted to 2 the factual findings of the investigation under the “Inquiry Findings” heading. In the 3 report Attorney Padilla notes that she personally interviewed Brooks, in addition to 4 seven other persons—all present or former APS employees or Board members—“to 5 develop facts for this report.” 6 {7} Beyond the factual results of the investigation, the Padilla Report was short 7 on advice—legal or otherwise—on how best to address the workplace problems 8 being investigated. Indeed, the advice offered in the report was confined to a few 9 vague suggestions, including that APS may choose to renew its commitment to 10 provide a “pleasant and professional” work environment and should determine how 11 best to “prevent future” similar workplace problems from arising. Notably, the report 12 does not contain any meaningful discussion of the potential legal risks or liabilities 13 faced by APS, or any reference to legal precedents or principles that may have been 14 implicated by the workplace problems faced by the Board. 15 III. ANALYSIS 16 {8} Plaintiffs appeal from the district court’s grant of Defendant’s motion for 17 summary judgment and denial of Plaintiffs’ motion for partial summary judgment, 18 both raising the proper application of the attorney-client privilege and the matters- 19 of-opinion exceptions to IPRA. See § 14-2-1(G) and (C). The outcome of this appeal 1 hinges on the applicability of the two IPRA exceptions invoked by APS. After laying 2 out the governing standard of review, we consider the two exceptions in turn, 3 discussing first the attorney-client privileged information exception, and then 4 addressing the matters-of-opinion exception. 5 A. Standard of Review 6 {9} “Summary judgment is a drastic remedy that is disfavored in New Mexico 7 courts,” and it is warranted only where there are no “genuine issues of material fact 8 and where the movant is entitled to judgment as a matter of law.” Jones v. City of 9 Albuquerque Police Dep’t, 2020-NMSC-013, ¶ 16, 470 P.3d 252 (internal quotation 10 marks and citation omitted). “Orders granting or denying summary judgment are 11 reviewed de novo.” Id. “In reviewing an order on summary judgment, we examine 12 the whole record on review, considering the facts in a light most favorable to the 13 nonmoving party and drawing all reasonable inferences in support of a trial on the 14 merits.” Id. (internal quotation marks and citation omitted). To the extent we must 15 consider relevant statutes, our review is also de novo, id. ¶ 17, as is our review of 16 the application of a privilege, see Republican Party of N.M., 2012-NMSC-026, ¶ 11.

17 B. The Padilla Report Is Not Subject to the Attorney-Client Privileged 18 Information Exception in Section 14-2-1(G)

19 {10} Plaintiffs argue that the Padilla Report is not exempt from inspection under 20 IPRA’s attorney-client privileged information exception. We agree.

1 {11} IPRA’s attorney-client privileged information exception applies only to 2 documents that are subject to attorney-client privilege under Rule 11-503 NMRA. 3 Rule 11-503 delineates the scope of the attorney-client privilege in New Mexico and 4 provides, “A client has a privilege to refuse to disclose, and to prevent any other 5 person from disclosing, a confidential communication made for the purpose of 6 facilitating or providing professional legal services to that client.” Rule 11-503(B). 7 The elements of our attorney-client privilege “are (1) a communication (2) made in 8 confidence (3) between privileged persons (4) for the purpose of facilitating the 9 attorney’s rendition of professional legal services to the client.” Santa Fe Pac. Gold 10 Corp. v. United Nuclear Corp., 2007-NMCA-133, ¶ 14, 143 N.M. 215, 175 P.3d 11 309. The party “asserting the attorney-client privilege bears the burden of 12 demonstrating that the privilege applies.” Allen v. LeMaster, 2012-NMSC-001, ¶ 38, 13 267 P.3d 806. 14 {12} Although the term “professional legal services” is not defined in Rule 11-503, 15 the Court of Appeals, in Bhandari v. Artesia General Hospital, held that the 16 attorney-client privilege “protects communications generated or received by an 17 attorney giving legal advice but does not protect communications derived from an 18 attorney giving business advice or acting in some other capacity.” 2014-NMCA-018, 19 ¶ 12, 317 P.3d 856 (internal quotation marks and citation omitted) (noting that 1 attorneys “also provide non-legal services, such as negotiating contracts, analyzing 2 potential . . . transactions, and investigating potential claims” (internal quotation 3 marks and citation omitted)). To determine whether a given communication is 4 privileged, the Bhandari Court adopted a primary purpose test, under which a 5 communication between attorney and client is presumptively privileged if its 6 primary purpose is to render or solicit legal advice. Id. ¶¶ 16-18. The Court further 7 held, by contrast, that “‘communications regarding business matters, management 8 decisions, and business advice, which neither solicit or predominantly deliver legal 9 advice, are not privileged.’” Id. ¶ 17 (quoting Anaya v. CBS Broad., Inc., 251 F.R.D. 10 645, 650 (D.N.M. 2007)). 11 {13} The principles adopted by the Bhandari Court are closely aligned with those 12 advanced by commentators in this area. See generally 1 Paul R. Rice, Attorney- 13 Client Privilege in the United States, § 7:6, at 1321 (2020-21 ed.) (Thomson Reuters) 14 (“[T]here is general agreement that the protection of the [attorney-client] privilege 15 applies only if the primary or predominant purpose of the attorney-client 16 consultation is to seek legal advice or assistance.”). Relevant here, “Factual 17 investigations by themselves do not constitute the rendering of legal advice or 18 assistance. . . . Legal advice or assistance must be the purpose behind the 19 investigation, and since the privilege is designed to protect client confidences, the 1 communications with the attorney must be from either the client or the client’s agents 2 and proven to be confidential.” Id. § 7:17, at 1385-90. “[T]he privilege should only 3 apply where the investigation is one that cannot be carried on by non-lawyer 4 investigators[,] e.g., where the matters to be investigated are legal documents whose 5 meaning would not be apparent without legal training.” 24 Charles Alan Wright & 6 Kenneth W. Graham, Jr., Federal Practice and Procedure, § 5478, at 229 (1986) 7 (explaining “that investigative work is not ‘professional legal services’ and that no 8 [attorney-client] privilege applies where the lawyer’s primary function is as a 9 detective”). 10 {14} “[A]s a general matter, attorneys provide legal advice when they draw on 11 their legal training and apply legal principles to the specific circumstances of their 12 client.” See In re Polaris, Inc., 967 N.W.2d 397, 410 (Minn. 2021); see also Nat’l 13 Farmers Union Prop. & Cas. Co. v. Dist. Ct. for City & Cnty. of Denver, 718 P.2d 14 1044, 1048-49 (Colo. 1986) (en banc) (holding that the lengthy facts section of a 15 memorandum prepared by an attorney investigating the issuance of a lease guaranty 16 insurance policy did not fall within the attorney-client privilege because the 17 attorney’s actions in “conducting interviews with various officers and employees for 18 the purpose of determining the factual circumstances underlying the issuance of the 19 policy” meant that “the attorneys were acting more in the role of claims investigators 1 than legal counsel”). By contrast, the Padilla Report is predominantly investigative 2 in nature, mostly factual in content, and contains very little advice of any kind, none 3 of which could fairly be considered legal advice. At best, the vague and generalized 4 suggestions offered in the Padilla Report—that APS may wish to renew its 5 commitment to provide a “pleasant and professional” workplace and should decide 6 for itself how best to “prevent future” similar workplace problems—could be 7 considered advice relating to “business matters [or] management decisions.” 8 Bhandari, 2014-NMCA-018, ¶ 17 (internal quotation marks and citation omitted). 9 These suggestions to APS certainly are not legal advice or strategy. 10 {15} In addition, the affidavits and confirming letter submitted by Attorney Padilla 11 and Dr. Maestas reflecting both affiants’ professed beliefs that Attorney Padilla was 12 “providing professional legal services to the Board of Education of the [APS]” were 13 also insufficient to show that the attorney-client privilege attaches to any portion of 14 the Padilla Report. To rule otherwise and give controlling effect to the mindsets of 15 the parties to the hiring agreement would run counter to New Mexico law. Whether 16 a communication is privileged is determined by the court, not by the parties’ 17 subjective beliefs. See Bujac v. Wilson, 1921-NMSC-024, ¶ 7, 27 N.M. 112, 196 P. 18 513 (explaining that “an attorney might not decide for himself whether a given 19 communication with his client was privileged,” because “whether a given 1 communication is privileged[ is] to be determined by the court after an examination 2 into the attending and characterizing circumstances under which the communication 3 was made”); Energy Pol’y Advocs., 2024-NMCA-081, ¶ 23 (“[A] public agency’s 4 burden to justify the withholding of information in an [IPRA] enforcement 5 proceeding in district court cannot be satisfied by a good-faith assertion that all of 6 the documents withheld or redacted were ‘privileged or confidential.’”). 7 {16} At bottom, the Padilla Report’s primary purpose—and indeed its only 8 purpose—appears to be informing Dr. Maestas and the Board of the results of 9 Attorney Padilla’s investigation and of her factual findings regarding allegations 10 against Brooks. Because the Padilla Report “neither solicit[s nor] predominantly 11 deliver[s] legal advice,” the attorney-client privilege does not apply. 3 Bhandari, 12 2014-NMCA-018, ¶ 17 (internal quotation marks and citation omitted).

3

Because we find that no part of the Padilla Report is subject to the attorney-

client privilege, we do not decide whether a public record that includes both privileged and nonprivileged information must be disclosed, either in whole or in part. We note only a split of authority on the issue. See, e.g., 1 Rice, supra, § 7.5, at 1317-18 (“Generally, if the legal and nonlegal portions of the communication are easily identified and separated, courts should order the excision of the protected legal portions and the production of the remainder—an action which is consistent with the narrow scope of the privilege. It is not uncommon, however, for courts to declare the entire document privileged if the nonlegal portions are only an incidental part of the communication.” (footnotes omitted)).

1 Accordingly, the Padilla Report is not exempt from inspection based on the attorney- 2 client privileged information exception found in Section 14-2-1(G). 3 {17} Before we consider the second exception invoked by APS, we emphasize the 4 importance of in-camera review when determining whether an exception may apply 5 or inspection is required. “In camera review has the most direct capacity to evaluate 6 both the suitability of the sought record as a public record as well as the basis for a 7 records custodian’s claim that the [public record] depicts something specifically 8 exempted by IPRA.” Silva v. City of Albuquerque, 2026-NMCA-054, ¶ 14 n.2, ___ 9 P.3d ___. The district court in this case initially ruled that the Padilla Report was 10 privileged and therefore exempt from inspection, without reviewing the report itself. 11 See Albuquerque J. II, 2025-NMCA-020, ¶ 4. We cannot condone such a practice 12 when, under IPRA, “[t]he citizen’s right to know is the rule and secrecy is the 13 exception.” State ex rel. Newsome v. Alarid, 1977-NMSC-076, ¶ 34, 90 N.M. 790, 14 568 P.2d 1236, superseded by statute on other grounds as recognized by Republican 15 Party of N.M., 2012-NMSC-026, ¶¶ 15-16; see also Allen, 2012-NMSC-001, ¶ 38 16 (“A [party] asserting the attorney-client privilege bears the burden of demonstrating 17 that the privilege applies.”). Only by examining the documents themselves may a 18 trial or appellate court ascertain whether a particular privilege or exception applies. 19 See 2 Rice, supra, § 11:16, at 1138-40, 1145-46 (“In camera inspection of allegedly 1 privileged documents . . . is the most efficacious means that courts can employ to 2 fulfill their role as independent fact finders for each privilege claim.” (footnote 3 omitted)). Here, while the assertion of attorney-client privilege by APS may seem 4 persuasive in the abstract, in-camera review of the actual contents of the Padilla 5 Report readily demonstrates that the privilege does not apply.

6 C. Only Matters of Opinion Within the Padilla Report Are Exempt Under 7 the Plain Language and Purpose of Section 14-2-1(C)

8 {18} APS argues that the Padilla Report falls within the matters-of-opinion 9 exception and therefore is exempt from disclosure. We disagree. 10 {19} In construing a statute such as IPRA, “[w]e adhere to the plain meaning rule, 11 which requires that we give statutes effect as written without room for construction 12 unless the language is doubtful or ambiguous or an adherence to the literal use of the 13 words would lead to injustice, absurdity or contradiction, in which case we construe 14 the statute according to its obvious spirit or reason.” Jones, 2020-NMSC-013, ¶ 17 15 (internal quotation marks and citation omitted). “Statutes must also be construed so 16 that no part of the statute is rendered surplusage or superfluous, and we will not read 17 into a statute language which is not there.” Valenzuela v. My Way Holdings, LLC, 18 2024-NMCA-009, ¶ 13, 541 P.3d 191 (internal quotation marks and citation 19 omitted). We construe a statute “in light of its purpose and interpret it to mean what 20 the Legislature intended it to mean and to accomplish the ends sought to be 1 accomplished by it.” Jones, 2020-NMSC-013, ¶ 17 (text only) (citation omitted). 2 For IPRA that purpose is “to ensure . . . that all persons are entitled to the greatest 3 possible information regarding the affairs of government and the official acts of 4 public officers and employees.” Section 14-2-5. “The exceptions to IPRA’s mandate 5 of disclosure are narrowly drawn” and are to be narrowly construed. Jones, 2020- 6 NMSC-013, ¶ 40 (text only) (citation omitted); see generally Regents of Univ. of 7 N.M. v. N.M. Fed’n of Tchrs., 1998-NMSC-020, ¶ 27, 125 N.M. 401, 962 P.2d 1236 8 (recognizing that New Mexico courts typically apply a “strict or narrow construction 9 . . . to exceptions to the general operation of a law”). 10 {20} APS advocates a rule that would exempt from inspection any and all 11 investigatory records that contain “information regarding infractions or matters of 12 opinion in the context of the employer/employee relationship.” We agree with 13 Plaintiffs that such a rule would go far beyond the plain language of Section 14-2- 14 1(C), in violation of the principle of statutory interpretation that courts “will not read 15 into a statute language which is not there.” Elite Well Serv., LLC v. N.M. Tax’n & 16 Revenue Dep’t, 2023-NMCA-041, ¶ 7, 531 P.3d 635 (internal quotation marks and 17 citation omitted). More importantly, APS’s suggested rule misconstrues the very 18 purpose of the statutory exception itself.

1 {21} Mindful that we strictly construe IPRA exceptions, see Jones, 2020-NMSC- 2 013, ¶ 40, a restrictive reading of the matters-of-opinion exception is in order. 3 Section 14-2-1(C) provides that “[e]very person has a right to inspect public records 4 of this state except: . . . letters or memoranda that are matters of opinion in personnel 5 files” (emphasis added). The italicized language is significant and stands apart from 6 analogous public-records statutes in other states that expressly exempt all 7 government personnel records from inspection. For example, the Mississippi 8 exemption statute provides, “Personnel records and applications for employment in 9 the possession of a public body . . . shall be exempt from the provisions of the 10 Mississippi Public Records Act of 1983.” Miss. Code Ann. § 25-1-100 (2015). 11 {22} While our Legislature similarly could have exempted personnel records or 12 files in their entirety, or even limited the exception to “infractions or matters of 13 opinion” as suggested by APS, it did not. According to the plain language of Section 14 14-2-1(C), the Legislature designated only matters of opinion within a personnel file 15 as exempt from inspection, as opposed to factual matters or other kinds of 16 information within a personnel file, which may be inspected. We have long-held that 17 the legislative intent underlying this distinction—and of the matters-of-opinion 18 exception as a whole—is to protect public employees from opinion-based 19 information in various personnel-related documents “that might have no foundation 1 in fact but, if released for public view, could be seriously damaging to an employee.” 2 Newsome, 1977-NMSC-076, ¶ 12. We reaffirm this interpretation of legislative 3 intent as the touchstone for identifying matters of opinion within a personnel file that 4 are exempt from disclosure. This narrow reading of the exception effectuates the text 5 of Section 14-2-1(C), does not lead to injustice, absurdity, or contradiction, and is 6 consistent with the public policy of access “to the greatest possible information” that 7 underlies IPRA.4 See § 14-2-5. This reading also adheres to our modern approach to 8 public records inspection, construing IPRA broadly to effectuate its purpose and 9 recognizing only the narrow group of records the Legislature has declared exempt

4

We add a cautionary note. This Court in Newsome, 1977-NMSC-076, ¶ 12, and the Court of Appeals in Cox v. New Mexico Department of Public Safety, 2010-

NMCA-096, ¶ 21, 148 N.M. 934, 242 P.3d 501, listed categories of personnel records that are presumptively exempt from inspection under Section 14-2-1(C)

because they typically contain “critical material and adverse opinions . . . that might have no foundation in fact but, if released for public review, could be seriously damaging to an employee.” Newsome, 1977-NMSC-076, ¶ 12; see also Cox, 2010-

NMCA-096, ¶ 21 (listing types of records that generally contain “information regarding the employer/employee relationship”). We agree with the Court of Appeals dissent that these categories have proven unreliable, if not downright misleading. See Albuquerque J. II, 2025-NMCA-020, ¶¶ 92-96 (Bosson, J., dissenting). The necessary inquiry in resolving a question of exemption under Section 14-2-1(C) is whether information within a particular record is actually a matter of opinion, rather than some other type of information supported by an adequate foundation in fact. To the extent that Newsome and Cox identified entire categories of personnel records that are presumptively exempt from disclosure, these judicial opinions should no longer be followed.

1 from public inspection. See Republican Party of N.M., 2012-NMSC-026, ¶ 16 2 (rejecting the “rule of reason” adopted in Newsome and directing that “courts now 3 should restrict their analysis to whether disclosure under IPRA may be withheld 4 because of a specific exception contained in IPRA, or statutory or regulatory 5 exceptions, or privileges adopted by this Court or grounded in the [C]onstitution.”); 6 see also State ex rel. Toomey v. City of Truth or Consequences, 2012-NMCA-104, 7 ¶ 22, 287 P.3d 364 (“We emphasize . . . that IPRA should be construed broadly to 8 effectuate its purposes, and courts should avoid narrow definitions that would defeat 9 the intent of the Legislature.”); Jones, 2020-NMSC-013, ¶¶ 38, 40 (reversing the 10 district court’s interpretation of an IPRA exception that was “untethered from the 11 plain language of [the exception] and overbroad”). 12 {23} Looking to whether the Padilla Report may contain information that is exempt 13 under the text and purpose of Section 14-2-1(C), we note that the Legislature has not 14 defined the phrase “matters of opinion” for purposes of IPRA. We therefore “give 15 those words their ordinary meaning absent clear and express legislative intention to 16 the contrary.” State v Vest, 2021-NMSC-020, ¶ 14, 488 P.3d 626 (text only) (citation 17 omitted). In the evidentiary sense, “opinion” means “[a] person’s thought, belief, or 18 inference . . . as opposed to personal knowledge of the facts themselves.” Opinion, 19 Black’s Law Dictionary (12th ed. 2024); see also Vest, 2021-NMSC-020, ¶ 14 1 (“When words are not otherwise defined in a statute, . . . we [may] consult common 2 dictionary definitions.”). Similarly, other courts and commentators define the term 3 “opinion” or “matters of opinion”—together with such companion terms as 4 predictions, projections, estimates, motives, intentions, and other subjective 5 evaluations—as a species of “soft” information consisting of “information that is 6 uncertain and not objectively verifiable,” Lane v. Page, 649 F. Supp. 2d 1256, 1272 7 (D.N.M. 2009) (internal quotation marks and citation omitted), and is ordinarily 8 shielded from disclosure unless “virtually as certain as hard facts,” Kushner v. 9 Beverly Enters., 317 F.3d 820, 830-31 (8th Cir. 2003) (internal quotation marks and 10 citation omitted). Critical to this inquiry is distinguishing “soft information” from 11 “hard information,” the latter generally defined as “statements concerning 12 objectively verifiable historical facts.” Janet E. Kerr, A Walk Through the Circuits: 13 The Duty to Disclose Soft Information, 46 Md. L. Rev. 1071, 1071 n.2 (1987) 14 (internal quotation marks and citation omitted); see generally Young v. Wilham, 15 2017-NMCA-087, ¶ 22, 406 P.3d 988 (“Once the facts are correctly stated, an 16 author’s views about them are neither provably true nor provably false and therefore 17 are protected.” (text only) (quoting 1 Robert D. Sack, Sack on Defamation, § 4:3:2 18 at 4-61 (5th ed. 2024))).

1 {24} We conclude that the portion of the Padilla Report devoted to the factual 2 findings of the underlying investigation far outweighs all other aspects of the report 3 combined. But the report’s fact-based emphasis should not be taken to mean that 4 matters of opinion subject to exclusion may not be found in the document as well. 5 Rather than deciding whether the Padilla Report contains matters of opinion in the 6 first instance, we remand to the district court to make that determination, applying 7 the principles discussed herein and any other criteria the district court deems 8 relevant.5

9 D. Section 14-2-9(A) Requires Records Custodians to Separate and Remove 10 or Redact Exempt Information Under Section 14-2-1(C) from a 11 Requested Public Record Prior to Inspection and to Allow Inspection of 12 the Nonexempt Information

13 {25} Having determined that remand is appropriate, we resolve a final issue to aid 14 the district court’s consideration of the Padilla Report under Section 14-2-1(C). The 15 parties disagree on whether the presence of exempt information under Section 14-2- 16 1(C) requires the entire Padilla Report to be exempt from inspection or, instead, 17 whether any exempt information must be redacted before the nonexempt information 18 is produced. We considered a similar question in Jones, albeit with respect to law

Pending the district court’s disposition on remand, the Padilla Report shall

5

remain sealed. See Rule 12-314(I)(1) NMRA (“A sealed court record shall not be unsealed except by Court order.”).

1 enforcement records under Section 14-2-1(A)(4) (2011, amended 2025). See 2020- 2 NMSC-013, ¶¶ 37-40. As we now explain, our reasoning in Jones applies to Section 3 14-2-1(C) with equal force. 4 {26} We held in Jones that IPRA requires records custodians to review requested 5 law enforcement records for “both exempt and nonexempt information” and 6 prohibits any document that contains both categories of information from being 7 withheld in its entirety. Jones, 2020-NMSC-013, ¶¶ 39-40 (“[L]aw enforcement 8 records containing both exempt and nonexempt information cannot be withheld in 9 toto.”). We reached this conclusion based on the interplay between the law 10 enforcement records exception set forth in Section 14-2-1(A)(4) (2011) and the 11 IPRA provision governing the procedure for producing public records for inspection, 12 Section 14-2-9(A). The former statute exempted from disclosure “‘law enforcement 13 records that reveal confidential sources, methods, information or individuals accused 1 but not charged with a crime.’”6 Jones, 2020-NMSC-013, ¶ 19 (quoting Section 14- 2 2-1(A)(4) (2011)). The latter statute requires records custodians to review and 3 prepare requested public records for inspection as follows:

4 Requested public records containing information that is exempt and 5 nonexempt from disclosure shall be separated by the custodian prior to 6 inspection, and the nonexempt information shall be made available for 7 inspection.

8 Section 14-2-9(A). 9 {27} Reading the two provisions together, we held in Jones that records custodians 10 were “required to review the requested law enforcement records, separate 11 information that did not ‘reveal confidential sources, methods, information or 12 individuals accused but not charged with a crime’ from that which did, and provide 13 the nonexempt information for inspection.” Jones, 2020-NMSC-013, ¶ 39 (quoting

The law enforcement records exception was renumbered in 2019 and

6

amended to apply only to “portions of law enforcement records.” Section 14-2-1(D)

(2019, amended 2025) (emphasis added). Although we decided Jones after that 2019 amendment, we clarified a records custodian’s responsibilities under Section 14-2-

9(A) in relation to the preamendment, 2011 language of the exception, which did not expressly limit the exception to “portions” of records. See 2020-NMSC-013, ¶ 39 & n.3 (explaining that the 2019 amendment “amplifies the requirements of Section 14-

2-9(A)” by “specifically exempt[ing] only those ‘portions’ of law enforcement records that meet certain criteria”). Like the exception in Jones, the matters-of-

opinion exception here is not expressly limited to “portions” of the relevant public records. See § 14-2-1(C). The Jones analysis therefore guides our consideration of the matters-of-opinion exception and Section 14-2-9(A) in this case.

1 § 14-2-1(A)(4) (2011)). We therefore reversed the district court, which had “allowed 2 [the defendant] to broadly withhold law enforcement records in toto,” rather than 3 separating the information specifically exempted under the relevant exception and 4 providing the nonexempt information for inspection. Id. ¶¶ 39, 49. 5 {28} Our reasoning in Jones compels the same result in this case. As we have 6 already explained, Section 14-2-1(C) exempts only information within a personnel 7 file that is a matter of opinion, consistent with the purpose of the exception. Reading 8 Section 14-2-1(C) with the procedures mandated by Section 14-2-9(A), IPRA 9 requires records custodians to review the requested records, separate information 10 that is a matter of opinion from that which is not, and provide the nonopinion 11 information for inspection. And as in Jones, records in personnel files “containing 12 both exempt and nonexempt information cannot be withheld in toto.” 7 2020-NMSC- 13 013, ¶ 39. 14 {29} In addition to following Jones, this interpretation of Section 14-2-9(A) in 15 relation to Section 14-2-1(C) comports with other considerations as well. First, the 16 Legislature amended Section 14-2-9(A) in 2011, adding language regarding the

To the extent that recent Court of Appeals decisions such as Henry, 2023-

7

NMCA-078, ¶¶ 18-20, and Energy Pol’y Advocs., 2024-NMCA-081, ¶ 16, suggest documents containing opinion should be withheld in toto, they are abrogated and should no longer be followed.

1 treatment of electronic documents: “Exempt information in an electronic document 2 shall be removed along with the corresponding metadata prior to disclosure by 3 utilizing methods or redaction tools that prevent the recovery of exempt information 4 from a redacted electronic document.” This language compels the conclusion that 5 Section 14-2-9(A) requires records custodians to separate exempt and nonexempt 6 information contained in a single public record by removing or redacting exempt 7 information from a document before disclosing the nonexempt information to the 8 public. After all, if an electronic document must be redacted to remove exempt 9 material while allowing nonexempt material to remain, the same must be true of the 10 print version of the same document. The logic and effect of the amendment support 11 no other viable interpretation. 12 {30} Second, we recognize that the New Mexico Department of Justice has long 13 held the view that Section 14-2-9(A) “requires the applicable records custodian to 14 separate out the exempt information in a file or document before making the record 15 available for inspection” and has counseled countless government entities subject to 16 IPRA on its meaning. See N.M. Dep’t of Justice, The Inspection of Public Records 17 Act: A Compliance Guide on Government Transparency for New Mexicans and 18 Their Public Officials 57 (9th ed. 2024) (IPRA Compliance Guide). The most recent 1 edition of the IPRA Compliance Guide explains the rationale underlying this 2 approach as follows:

3 In many instances, a record kept by a public body will contain 4 information that is exempt from the right to inspect as well as 5 information that must be disclosed. . . . The fact that a file may contain 6 some information that may not be disclosed does not necessarily protect 7 all the information from public disclosure. Where protected and public 8 information are contained in the same document, the records custodian 9 may redact or block out the protected information before providing the 10 document to the public or including it in the file available for 11 inspection.

12 Id. 13 {31} The Department of Justice has advocated this viewpoint since the enactment 14 of Section 14-2-9(A) more than three decades ago. See Off. of the N.M. Att’y Gen., 15 The Inspection of Public Records Act: A Compliance Guide for New Mexico Public 16 Officials and Citizens 20 (November 1993) (“The Act requires the applicable records 17 custodian to separate out the exempt information in a file or document before making 18 the record available for inspection. The fact that a file may contain some information 19 which may not be disclosed does not protect all the information from public 20 disclosure.”). While the IPRA Compliance Guide is not binding on this or other New 21 Mexico courts, see Edenburn v. N.M. Dep’t of Health, 2013-NMCA-045, ¶ 21, 299 22 P.3d 424, we are persuaded by its consistent guidance on this issue. See United States 23 v. Reese, 2014-NMSC-013, ¶ 36, 326 P.3d 454 (“Attorney General opinions and 1 advisory letters do not have the force of law. . . . [H]owever, they persuasively 2 establish what New Mexico has consistently understood the law to be.”). 3 {32} Finally, and perhaps most importantly, this interpretation of Section 14-2-1(C) 4 with Section 14-2-9(A) gives effect to the stated purpose of IPRA: “to ensure . . . 5 that all persons are entitled to the greatest possible information regarding the affairs 6 of government and the official acts of public officers and employees.” Section 14-2- 7 5. To hold otherwise would not only be contrary to this purpose, but as this case 8 demonstrates, exempting an entire record because it may contain trace matters of 9 opinion would invite abuse and frustrate both the “fundamental right to inspect 10 public records” and the “presumption in favor of access” under IPRA. San Juan 11 Agric. Water Users Ass’n, 2011-NMSC-011, ¶ 15 (internal quotation marks and 12 citation omitted). 13 IV. CONCLUSION 14 {33} For the foregoing reasons, we reverse the Court of Appeals, the decision of 15 the district court granting summary judgment to APS, and the decision of the district 16 court denying partial summary judgment to Plaintiffs. We remand the matter to the 17 district court to conduct an in-camera review to determine whether any information 18 within the Padilla Report is exempt from inspection under the text and purpose of 19 Section 14-2-1(C) before the nonexempt information is produced.

1 {34} IT IS SO ORDERED.

2 3 BRIANA H. ZAMORA, Justice

4 WE CONCUR:

5 6 JULIE J. VARGAS, Chief Justice

7 8 MICHAEL E. VIGIL, Justice

9 10 DAVID K. THOMSON, Justice