Beck v. State Ex Rel. CYFD

Opinion

The slip opinion is the first version of an opinion released by the Clerk of the Court of Appeals. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Clerk of the Court 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 COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 Opinion Number: __________________ 3 Filing Date: September 25, 2024 4 No. A-1-CA-40529 5 MARALYN BECK, 6 Plaintiff-Appellee, 7 v.

8 STATE OF NEW MEXICO ex rel. 9 CHILDREN, YOUTH & FAMILIES 10 DEPARTMENT,

11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Victor S. Lopez, District Court Judge

14 Western Agriculture, Resource and 15 Business Advocates, LLP 16 A. Blair Dunn 17 Jared R. Vander Dussen 18 Albuquerque, NM

19 for Appellee

20 Long, Komer & Associates, P.A. 21 Nancy R. Long 22 Jonas M. Nahoum 23 Santa Fe, NM

24 for Appellant 1 OPINION 2 YOHALEM, Judge. 3 {1} This appeal is brought under the Inspection of Public Records Act (IPRA), 4 NMSA 1978, §§ 14-2-1 through -12 (1947, as amended through 2023). 1 Defendant 5 Children, Youth, and Families Department (CYFD) appeals the district court’s 6 judgment requiring CYFD to make available for inspection in response to Plaintiff 7 Maralyn Beck’s request the names, email addresses, and physical addresses 2 of 8 CYFD licensed foster parents. CYFD redacted this personally identifying 9 information from its responses to Plaintiff’s requests for emails, text messages, and 10 meeting notes mentioning Plaintiff by name, and refused to disclose a list of foster 11 parents’ names, email addresses, and physical addresses altogether in its response to 12 Plaintiff’s second request, claiming that the names and other personally-identifying

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The requests at issue in this appeal were submitted in August 2019, and August 2020. The language of IPRA was amended in 2023, but the specific sections relied on by the parties have not substantially changed. The 2023 amendment renumbered the catchall, “as otherwise provided by law” exception to IPRA from Section 14-2-1(H) to Section 14-2-1(L). The amendment also renumbered Section 14-2-6(E), which defines “protected personal identifier information,” to Section 14-

2-6(F), and added to the personal identifier information protected under that section all but the last four digits of credit and debit card numbers, see Section 14-2-

6(F)(1)(c), and the home addresses of public employees, see Section 14-2-6(F)(4).

We, therefore, cite the 2023 version of IPRA throughout this opinion for ease of reference, and to prevent confusion about the current law.

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The parties in briefs in this Court, and in their summary judgment motions in the district court, sometimes include physical addresses in the information they claim was improperly redacted, and sometimes mention only the redaction of names and email addresses. We address the redaction of both types of addresses.

1 information of foster parents sought by Plaintiff is exempt from disclosure under the 2 catchall, “as otherwise provided by law” exception to IPRA inspection. See § 14-2- 3 1(L). Plaintiff claims that Sections 14-2-6(F) and 14-2-1.1, which together allow 4 state agencies to redact certain “protected personal identifiers” from all documents 5 prior to their inspection under IPRA, provide the exclusive list of personally 6 identifying information that may be exempted from inspection by a public agency 7 under IPRA. According to Plaintiff, no agency may rely on a regulation promulgated 8 by that agency to make additional personally identifying information confidential 9 and exempt from inspection under IPRA’s catchall exception. Because names, 10 physical addresses (other than for public employees), and email addresses are not 11 included in the definition of “protected personal identifier information” listed in 12 Section 14-2-6(F), Plaintiff argues that foster parents’ names, email addresses, and 13 physical addresses must be made available for inspection. We agree with CYFD that 14 the redaction of “protected personal identifier information” before inspection 15 authorized by Sections 14-2-6(F) and 14-2-1.1 was not intended by the Legislature 16 to restrict the application of the catchall, “as otherwise provided by law” exception. 17 See Section 14-2-1. The provisions allowing redaction of “protected personal 18 identifier information” provide a separate and additional protection against 19 disclosure of an individual’s public and private account numbers, numbers which if 20 disclosed, might facilitate unauthorized invasion of personal accounts, and other

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1 particularly sensitive identifying information. The plain language of IPRA does not 2 express legislative intent to restrict the catchall exception. Because we conclude that 3 CYFD’s regulation protecting the personally identifying information of foster 4 parents is a regulation having the force of law, enforceable under the “as otherwise 5 provided by law” exception, we reverse the decision of the district court. 6 BACKGROUND 7 {2} Plaintiff submitted two IPRA requests to CYFD relevant to this appeal: one 8 on August 1, 2019 (August 2019 request), and the other on August 10, 2020 (August 9 2020 request). Plaintiff’s August 2019 request sought emails, text messages, and 10 meeting notes from all CYFD protective services employees over the previous 11 eighteen-month period that mentioned Plaintiff by name. In response, CYFD 12 produced 839 pages of records. Foster parents’ email addresses and other personally 13 identifying information were redacted with the explanation that CYFD deemed them 14 exempt, pursuant to 8.26.4.21(B) NMAC (05/29/2009)3 (“the Regulation” or “the 15 CYFD Regulation”), adopted under the authority of the Children’s Code, NMSA

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Regulation 8.26.4.21 NMAC (05/29/2009) was repealed and replaced by 8.26.4.22 NMAC (02/11/2020). Plaintiff’s first request was submitted while the 2009 version of the regulation was in effect. The district court relied on the 2020 regulation, which was adopted between the two requests, and the parties on appeal rely on that version of the regulation. The new regulation, 8.26.4.22(B) NMAC (02/11/2020), states that “all case records and identifying information including foster and adoptive families . . . are confidential.” Because the changes in wording do not affect the merits of the issue before this Court, we join the district court and the parties in relying on the 2020 regulation.

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1 1978, § 32A-4-33(A) (2016, amended 2022), which provides that “[a]ll records or 2 information concerning a party to a neglect or abuse proceeding . . . shall be 3 confidential and closed to the public.” The CYFD Regulation provides that “all case 4 records and identifying information including foster and adoptive families, and 5 applicant files are confidential and may not be publicly disclosed.” 8.26.4.22(B) 6 NMAC. 7 {3} Plaintiff’s August 2020 request sought “a list of all foster care providers and 8 parents . . . in New Mexico who currently possess a license, or formerly held a foster 9 care license in the last [eighteen] months.” CYFD denied this request, explaining 10 “all case records and identifying information including foster and adoptive families,” 11 and “applicant files are confidential and may not be publicly disclosed,” citing the 12 Regulation, and further explaining that the Regulation was incorporated into IPRA 13 by Section 14-2-1(L), the catchall “as otherwise provided by law” exception. 14 {4} Plaintiff filed suit under IPRA challenging, in relevant part, CYFD’s refusal 15 to provide the list of names, email addresses, and other personally identifying 16 information for CYFD-licensed foster parents in response to her August 2020 17 request, and CYFD’s redaction of the personally identifying information of foster 18 parents in the emails, text messages, and meeting notes and minutes disclosed in 19 response to Plaintiff’s August 2019 request.

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1 {5} Plaintiff and CYFD each filed motions for summary judgment. CYFD argued 2 that Section 14-2-1(L) incorporates as exemptions to inspection under IPRA the 3 confidentiality provisions of statutes, regulations, the constitution, and court rules, 4 relying on our Supreme Court’s decision in Republican Party of New Mexico v. New 5 Mexico Taxation & Revenue Department (Republican Party II), 2012-NMSC-026, 6 283 P.3d 853. CYFD acknowledged that to qualify for the catchall exception, a 7 regulation must meet the two-part test set out in City of Las Cruces v. Public 8 Employee Labor Relations Board, 1996-NMSC-024, ¶ 5, 121 N.M. 688, 917 P.2d 9 451. That test requires that a regulation (1) be promulgated pursuant to a statutory 10 delegation of rulemaking authority to the agency; and (2) be based on and serve the 11 purposes of a statute or statutes that are specifically “relate[d] to the effects of 12 disclosure and the confidentiality of the information.” Am. Civ. Liberties Union of 13 N.M. v. N.M. Corr. Dep’t, ___-NMCA-___, ¶ 16, ___ P.3d ___ (A-1-CA-40486, 14 May 31, 2024). There was no dispute as to the first prong of the test—CYFD’s 15 authority to promulgate regulations implementing the Children’s Code. As to the 16 second prong, CYFD pointed to multiple sections of the Children’s Code 17 protecting information that might be used to identify children in CYFD custody and their families or adoptive families4 as the statutory basis for the

See § 32A-4-33(A), (D); NMSA 1978, § 32A-5-8 (2009); NMSA 1978,

4

§ 32A-6A-24(A) (2008, amended 2024); NMSA 1978, § 32A-3B-22(A) (2005);

NMSA 1978, § 32A-5-6 (2003).

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1 Regulation, which protects both direct information about children in CYFD’s care, 2 their parents and adoptive parents, and foster parents. 3 {6} Plaintiff argued, both in its response to CYFD’s motion for summary 4 judgment and in its own motion for summary judgment, that the Regulation did not 5 properly reflect legislative intent in the Children’s Code to make foster parents 6 personally identifying information confidential, and alternatively, IPRA’s Section 7 14-2-6(F) list of “protected personal identifier information” was the exclusive list of 8 personally identifying information that was exempt from inspection under IPRA, 9 superseding any agency regulation. Plaintiff did not directly address the application 10 of the catchall exception relied on by CYFD, couching its argument as whether the 11 personally identifying information redacted by CYFD fit the definition of a public 12 record and whether it was listed in Section 14-2-6(F). 13 {7} CYFD filed a reply addressing Plaintiff’s implicit argument that Sections 14- 14 2-6(F) and 14-2-1.1, together allowing redaction of “[p]rotected personal identifier 15 information,” preempted the catchall provision’s incorporation of the Regulation. 16 CYFD’s reply distinguished Dunn v. New Mexico Department of Game and Fish, 17 2020-NMCA-026, 464 P.3d 129, the sole precedent relied on by Plaintiff. CYFD 18 pointed out that the agency in Dunn did not cite any statute or regulation supporting 19 an IPRA exception, and therefore, did not rely on the catchall exception. See id. ¶ 5. 20 The Department of Game and Fish in Dunn asserted an exception for the personal

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1 information of licensed hunters solely on policy grounds. Id. CYFD contended that 2 Dunn simply reiterates our Supreme Court’s holding in Republican Party II that 3 exceptions to IPRA must be based on either a specific exception listed in IPRA 4 Section 14-2-1, or on a statute or regulation, a court rule, or a constitutionally-based 5 privilege, which is incorporated under IPRA’s catchall exception, and cannot be 6 based solely on policy grounds. See Republican Party II, 2012-NMSC-026, ¶ 16 7 (doing away with the “rule of reason”). 8 {8} The district court initially entered summary judgment in CYFD’s favor, 9 adopting CYFD’s view that IPRA’s catchall “as otherwise provided by law” 10 exception incorporated the CYFD Regulation. Plaintiff filed a timely motion to 11 reconsider, arguing that this Court’s notice of proposed summary disposition in Rio 12 Grande Foundation v. Sanchez, A-1-CA-39456, mem. op. (N.M. Ct. App. Mar. 4, 13 2022) (nonprecedential), issued after the district court’s entry of its judgment, 14 adopted Plaintiff’s position that Sections 14-2-6(F) and 14-2-1.1’s list of 15 “[p]rotected personal identifier information” provided the exclusive list of 16 personally identifying information exempt from inspection under IPRA. 17 {9} In its response to the motion to reconsider, CYFD again distinguished both 18 Dunn and Sanchez, the two cases relied on by Plaintiff, pointing out that these cases 19 simply rejected the continued application of the “rule of reason” and said nothing

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1 about the application of the catchall exception to incorporate a validly adopted 2 agency confidentiality regulation. 3 {10} The district court granted Plaintiff’s motion for reconsideration, withdrawing 4 its prior judgment and entering a final judgment for Plaintiff. The district court found 5 that Plaintiff’s citation to Sanchez “was persuasive” and that Section 14-2-1(L) and 6 Public Employee Labor Relations Board, 1996-NMSC-024, “cannot be read to add 7 information into the list of personal identifying information that the Legislature 8 provided in . . . [Section] 14-2-6[(F)].” CYFD appealed. 9 DISCUSSION 10 {11} Before discussing the issues raised by the parties on appeal, we briefly address 11 the dissent’s position that we lack appellate authority to review the merits of CYFD’s 12 appeal from the district court’s final judgment, and should limit our review to 13 whether the district court abused its discretion in granting Plaintiff’s motion to 14 reconsider. We do not agree. The district court granted Plaintiff’s timely motion to 15 reconsider, withdrew its prior decision, and substituted a new judgment taking a 16 different position from its original nonfinal decision. As the committee commentary 17 to Rule 1-059 NMRA notes, a district court has authority to enter a new judgment 18 upon granting a motion to reconsider. See Rule 1-059 comm. cmt. CYFD filed a 19 timely appeal from that judgment for Plaintiff, challenging the judgment on its 20 merits, and arguing that this Court should reverse. Plaintiff responded in kind,

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1 arguing for affirmance of the judgment on its merits. Neither party addressed the 2 question raised by the dissent: whether the district court abused its discretion by 3 granting the motion to reconsider. We, therefore, are required to address the merits 4 of CYFD’s appeal seeking reversal and of Plaintiff’s arguments for affirmance.5 No 5 party was denied a full opportunity to make their arguments on the merits of this 6 appeal. 7 {12} CYFD argues on appeal, as it did in the district court, that the catchall, “as 8 otherwise provided by law” exception to IPRA inspection incorporates the CYFD 9 Regulation providing that foster parent identifying information is confidential. In 10 response, Plaintiff contends, as she did in the district court, that Section 14-2-6(F), 11 which defines the term “protected personal identifier information” by listing seven 12 personal identifiers, together with Section 14-2-1.1, which allows redaction of these 13 personal identifiers from all documents before public inspection, is the exclusive list 14 of personally identifying information exempted from disclosure under IPRA. 15 Plaintiff argues that Sections 14-2-6(F) and 14-2-1.1 together supersede the “as 16 otherwise provided by law exception,” as applied to personally-identifying 17 information made confidential by regulations. As an alternative argument for

An appellee is permitted to make an alternative argument for affirmance,

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which this Court considers if we decide that reversal is required based on the argument raised by the appellant. See Rule 12-201(C) NMRA. Plaintiff made such an argument in this appeal.

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1 affirmance, Plaintiff claims that the CYFD Regulation protecting the identity of 2 foster parents is not authorized by the Children’s Code, and therefore exceeds 3 CYFD’s authority. 4 {13} We begin our discussion with the standard of review and then proceed to 5 consider the parties’ conflicting positions on the construction of Sections 14-2-6(F) 6 and 14-2-2.1 and the impact of those provisions on the catchall, “as otherwise 7 provided by law” exception, Section 14-2-1(L). We then turn to address CYFD’s 8 argument that the Regulation has the force of law for purposes of the “as otherwise 9 provided by law” exception to IPRA, and Plaintiff’s contention that the Regulation 10 exceeds CYFD’s statutory authority. 11 I. Standard of Review and Statutory Construction 12 {14} The questions raised by the parties on appeal are questions of statutory 13 interpretation. Where, as here, there are no facts in dispute, we review such questions 14 de novo. See Dunn, 2020-NMCA-026, ¶ 3 (noting that this Court reviews de novo 15 disputes that require us to “construe the statute and apply the relevant case law to 16 undisputed facts”). There being no genuine issue of material fact, our review of the 17 district court’s grant of summary judgment is also de novo. See Self v. United Parcel 18 Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. 19 {15} Our primary goal in construing a statute is to give effect to the Legislature’s 20 intent. See Lujan Grisham v. Romero, 2021-NMSC-009, ¶ 23, 483 P.3d 545. “The

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1 starting point in every case involving the construction of a statute is an examination 2 of the language utilized by the Legislature in drafting the pertinent statutory 3 provisions.” State v. Rivera, 2004-NMSC-001, ¶ 10, 134 N.M. 768, 82 P.3d 939 4 (alteration, internal quotation marks, and citation omitted). “We look first to the 5 words chosen by the Legislature and the plain meaning of the Legislature’s 6 language,” together with “the context in which it was enacted, taking into account 7 its history and background.” Pirtle v. Legis. Council Comm. of N.M. Legislature, 8 2021-NMSC-026, ¶¶ 14, 90, 492 P.3d 586 (Bacon and Thomson, JJ, dissenting) 9 (internal quotation marks and citation omitted). “As a cardinal canon of statutory 10 interpretation, we presume that a legislature says in a statute what it means and 11 means in a statute what it says.” State v. Rael, 2024-NMSC-010, ¶ 40, 548 P.3d 66 12 (internal quotation marks and citation omitted). “This and other linguistic canons 13 serve as aids for analyzing a statute’s text and context and providing guides to 14 solving the puzzle of textual meaning.” Id. (alterations, internal quotation marks, and 15 citation omitted). As our Supreme Court has recently explained, “The consideration 16 of linguistic canons is not a step beyond a plain-meaning analysis but is part and 17 parcel of such an analysis.” Id. 18 II. The IPRA Sections at Issue 19 {16} IPRA Section 14-2-6(F), first adopted by the Legislature in 2011, introduces 20 the term “protected personal identifier information” into IPRA, defining it to mean:

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1 (1) all but the last four digits of a: 2 (a) taxpayer identification number; 3 (b) financial account number; 4 (c) credit or debit card number; or 5 (d) driver’s license number; 6 (2) all but the year of a person’s date of birth; 7 (3) a social security number; and

8 (4) with regard to a nonelected employee of a public body in 9 the context of the person’s employment, the employee’s nonbusiness 10 home street address, but not the city, state or zip code.

11 {17} Section 14-2-1.1, entitled “[p]ersonal identifier information,” also first 12 enacted by the 2011 amendments to IPRA, provides:

13 Protected personal identifier information contained in public records 14 may be redacted by a public body before inspection or copying of a 15 record. The presence of protected personal identifier information on a 16 record does not exempt the record from inspection. Unredacted records 17 that contain protected personal identifier information shall not be made 18 available on publicly accessible websites operated by or managed on 19 behalf of a public body.

20 This language was originally included in the 2011 amendment as Subsection (B) of 21 Section 14-2-1, the provision listing, in Subsection (A), the exceptions to inspection 22 of public records. In 2019, without any change in its language, this provision was 23 moved to its current placement in Section 14-2-1.1, separating it entirely from 24 Section 14-2-1’s list of exceptions to inspection.

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1 {18} Section 14-2-1 states the right of every person to inspect public records and 2 provides a list of exceptions to that right, providing: 3 Every person has a right to inspect public records of this state except: 4 [Exceptions A through K]; and 5 L. as otherwise provided by law. 6 The catchall, “as otherwise provided by law” exception for public information made 7 confidential by other statutes, regulations, constitutionally-based privileges, and 8 court rules, has been part of IPRA since its original enactment in 1947 N.M. Laws, 9 ch. 130, § 1.

10 III. Sanchez and Dunn Do Not Resolve the Question of Statutory 11 Interpretation on Appeal

12 {19} Rather than beginning with the language of the relevant IPRA provisions and 13 construing that language, Plaintiff argues that the issue of statutory construction 14 before this Court has already been resolved by Dunn, 2020-NMCA-026, a decision 15 of this Court, and by this Court’s recent proposed notice of proposed summary 16 disposition in Sanchez, A-1-CA-39456, mem. op. Because we would not need to 17 pursue the analysis further if indeed there is controlling precedent, we address 18 Plaintiff’s argument concerning these cases first. See D.W. v. B.C., 2022-NMCA- 19 006, ¶ 18, 504 P.3d 559 (noting that our statutory analysis is guided by prior 20 appellate opinions construing the same statute).

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1 {20} We do not agree that the cases relied on by the Plaintiff resolve the question 2 on appeal. The unpublished notice of proposed summary disposition in Sanchez, 3 relied on by Plaintiff as new and persuasive precedent, is not even a decision of this 4 Court, let alone a precedential decision. Notices of proposed summary disposition 5 are documents directed solely to the parties for their response as part of this Court’s 6 summary calendar process. They are not decisions. See Rule 12-210(D)(1)-(2) 7 NMRA (describing the summary calendar process). When no response was received 8 from either party to this Court’s proposal to affirm, this Court affirmed based on the 9 failure to respond. See Sanchez, A-1-CA-39456, mem. op. ¶ 1. The Sanchez 10 memorandum decision, therefore, cannot reasonably or properly be relied on to 11 provide guidance on the merits of any other case. 12 {21} Dunn, the other decision of this Court relied on by Plaintiff, is a precedential 13 decision. 2020-NMCA-026. Dunn, however, does not adopt Plaintiff’s argument in 14 this appeal that a public agency cannot, after the enactment of Sections 14-2-6(F) 15 and 14-2-1.1, rely on a regulation to make any sort of personally identifying 16 information exempt from inspection under IPRA. Dunn instead concludes only that 17 the Department of Game and Fish cannot redact the names and email addresses of 18 applicants for hunting licenses from records produced for inspection based solely on 19 agency policy. 2020-NMCA-026, ¶ 11. Dunn relies on our Supreme Court’s decision 20 in Republican Party II, 2012-NMSC-026, ¶ 16, which rejects the application of the

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1 “rule of reason,” no longer allowing agencies to rely on policy alone to exempt 2 documents from inspection. Dunn, 2020-NMCA-026, ¶ 14 (internal quotation marks 3 and citation omitted). Importantly, the Department of Game and Fish, the defendant 4 in Dunn, did not rely on a statute or a regulation. See id. (holding that “accepting 5 [the agency’s] position . . . is tantamount to creating an additional policy-based 6 exception not identified in IPRA or in other statutes and regulations or in privileges 7 adopted by our Supreme Court, nor mandated by our constitution”). This Court’s 8 decision in Dunn, therefore, does not adopt Plaintiff’s argument that Sections 14-2- 9 6(F) and 14-2-1.1 supersede any duly promulgated agency regulation that exempts 10 personally identifying information from disclosure. We, therefore, do not rely on 11 Dunn or Sanchez to resolve the issues of statutory construction raised by this appeal. 12 IV. Statutory Construction 13 {22} We now turn to the plain language of the IPRA provisions at issue, applying 14 our canons of statutory construction to aid our analysis. We look first to the language 15 of Section 14-2-6(F), the provision that defines the “protected personal identifier 16 information” that the Legislature allows agencies to redact prior to production of 17 public records. 18 {23} Plaintiff’s brief uses the term personally identifying information 19 interchangeably with the term used by, and specifically defined by, the Legislature 20 in Section 14-2-6(F)—“protected personal identifier information.” We do not agree

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1 that “protected personal identifier information” and personally identifying 2 information mean the same thing or that they can be used interchangeably. The 3 Legislature specifically defines the phrase “protected personal identifier 4 information” as referring to a limited list of numbers used by government agencies 5 and financial institutions to identify a particular individual’s account with that 6 agency or institution, and related identifying information such as birth date, driver’s 7 license number, and home address. Id. (listing an individual’s social security 8 number; all but the last four digits of an individual’s taxpayer identification number; 9 an individual’s credit or debit card numbers; an individual’s bank account or other 10 financial account number; an individual’s driver’s license number, and an 11 individual’s birth date, except for the year, and home addresses of state employees). 12 {24} The nature of the information defined by Section 14-2-6(F) as “protected 13 personal identifier information,” together with the use of a unique term to describe 14 this information, distinguishes it from personally identifying information. The latter 15 term is commonly used to refer to names, addresses, email addresses, telephone 16 numbers which identify an individual. See Republican Party of N.M. v. N.M. Tax’n 17 & Revenue Dep’t (Republican Party I), 2010-NMCA-080, ¶ 13, 148 N.M. 877, 242 18 P.3d 444 (defining “personal information” as “information that identifies an 19 individual,” including the individual’s name, address, email address, telephone 20 number, and medical or disability information), rev’d on other grounds, Republican

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1 Party II, 2012-NMSC-026. When a statute, regulation, privilege, or court rule makes 2 an individual’s identifying information confidential, it is this information—name, 3 address, email address, telephone number—that is generally protected from 4 disclosure. 5 {25} The confidentiality provisions found in the Children’s Code, the Public 6 Employee Labor Relations Act, and the Driver’s Privacy Protection Act, to name a 7 few such statutes, serve a variety of purposes, generally quite different than the 8 redaction of account numbers and related information from all documents produced 9 for inspection authorized by Section 14-2-1.1. The confidentiality regulation 10 reviewed by our Supreme Court in Public Employee Labor Relations Board served 11 the statutory purpose of protecting public employees from retaliation by 12 management for their involvement in forming a union. 1996-NMSC-024, ¶¶ 6-7; see 13 Edenburn v. N.M. Dep’t of Health, 2013-NMCA-045, ¶ 26, 299 P.3d 424 (describing 14 the basis of the exemption from disclosure in Public Employee Labor Relations 15 Board, 1996-NMSC-024). CYFD argues that the Regulation serves the statutory 16 purpose of protecting the confidentiality of the children and families it serves, as 17 mandated by statute. The “as otherwise provided by law” exception plainly states 18 legislative intent to incorporate these varied confidentiality provisions as exceptions 19 to IPRA.

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1 {26} We note that the “as otherwise provided by law” exception to inspection has 2 been included in IPRA since it was originally enacted in 1947. See 1947 N.M. Laws, 3 ch. 130, § 1. Although the Legislature has gradually added specific exceptions to 4 IPRA, the “as otherwise provided by law” exception has remained part of IPRA. It 5 is apparent both from the plain language of the catchall provision, and from its 6 construction by our courts over the years, that the Legislature’s purpose is to allow 7 the confidentiality provisions of other statutes, regulations, court rules, and 8 constitutional privileges to be applied as exceptions to IPRA inspection and to do so 9 without the Legislature having to enact each of them again as part of IPRA. Rather 10 than drafting an extensive list of exceptions applicable to all agencies and all areas 11 of law, a difficult, if not impossible task, the Legislature has deferred to its own 12 statutes addressing confidentiality within unique subject-matter contexts, as well as 13 to agency regulations properly promulgated to serve the statutory purposes of that 14 confidentiality legislation. See, e.g., Pub. Emp. Lab. Rels. Bd., 1996-NMSC-024, ¶ 7 15 (holding that a regulation protecting the identity of individuals petitioning to create 16 an employee union serves the purposes of the Public Employee Labor Relations Act 17 and is thus incorporated as an IPRA exception under the catchall “as otherwise 18 provided by law” exception). 19 {27} We note that Plaintiff points to no language in either Sections 14-2-6(F) or 20 14-2-1.1 that suggests that the Legislature intends these two sections to limit or

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1 replace any of the exceptions incorporated by the catchall “as otherwise provided by 2 law” exception. In addition to the plain language of Sections 14-2-6(F) and 14-2-1.1 3 expressing the Legislature’s intent to protect the financial information of all 4 members of the public by allowing specific redactions, the placement of this 5 provision in a statutory section separated from the list of exceptions to inspection 6 strongly suggests legislative intent to add redaction of these personal identifiers to 7 the process of producing public records for inspection, without amending, 8 superseding, withdrawing, or repealing any portion of the existing exceptions to 9 inspection. We, therefore, conclude that the plain language of IPRA does not support 10 the Plaintiff’s construction of Sections 14-2-6(F) and 14-2-1.1.

11 V. The CYFD Regulation Serves the Purposes of the Children’s Code 12 Confidentiality Provisions, and It, Therefore, Has the Force of Law

13 {28} We briefly address Plaintiff’s claim, argued under appellate Rule 12-201(C) 14 as an alternative basis for affirming the district court’s judgment, that the Children’s 15 Code provisions relied on by CYFD as statutory authority for the Regulation do not 16 in fact authorize CYFD to adopt a regulation protecting the personally identifying 17 information of foster parents. We understand Plaintiff to contend that the CYFD 18 Regulation does not have the statutory authorization needed for the Regulation to 19 qualify as having the force of law for purposes of the IPRA catchall exception. 20 {29} During the pendency of this appeal, this Court clarified the conditions a 21 regulation must meet to be recognized as having the force of law for purposes of the

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1 IPRA catchall exception. In its decision in American Civil Liberties Union of New 2 Mexico, this Court explained that two requirements must be met before a regulation 3 will acquire the force of law necessary to qualify for the IPRA catchall 4 exception. ___-NMCA-___, ¶ 16. First, the agency must be authorized by 5 statute to promulgate regulations necessary for its administration. See id. The 6 promulgation of a regulation authorized by such generalized rulemaking 7 authority, however, is not enough to give a confidentiality regulation the force of 8 law necessary to create an exception to IPRA inspection. We held in American 9 Civil Liberties Union of New Mexico that a regulation exempting information 10 from inspection under IPRA must meet a second requirement: it must be “based 11 on more specific statutes that relate[s] to the effects of disclosure and the 12 confidentiality of the information.” Id. ¶ 15. Relying on our Supreme Court’s 13 opinion in Public Employee Labor Relations Board, 1996-NMSC-024, and this 14 Court’s opinion in Edenburn, 2013-NMCA-045, ¶ 26, we concluded in American 15 Civil Liberties Union of New Mexico that there need not be an explicit statutory 16 statement that the information is intended to be confidential; it is enough 17 for an agency to point to a statute relating to the confidentiality of the 18 information, and to show that its regulation was “necessary to carry out the 19 statute’s purposes.” Id. ¶ 16 (internal quotation marks and citation omitted).

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1 {30} CYFD points to multiple confidentiality provisions within the Children’s 2 Code, 6 which we agree are plainly intended to protect any information concerning 3 the identity of children and families who are in CYFD’s care. Although parents and 4 adoptive parents are specifically mentioned, foster parents are not. Id. Plaintiff 5 argues that these statutory provisions authorize only limited regulations, protecting 6 the names and identifying information of children, parents, and adoptive parents. We 7 do not agree. Under the relevant principles of law, a regulation, to have the force of 8 law, need not simply repeat the language of the authorizing statute. If this were the 9 case, no regulation would be needed. The statute would itself establish an exemption 10 under IPRA’s catchall provision. A regulation has the force of law if it is necessary 11 to carry out the statute’s purpose. 12 {31} We agree with CYFD that its Regulation prohibiting the disclosure of 13 information identifying foster parents by their names, physical addresses, and email 14 addresses is necessary to protect the identity of children, parents, and adoptive 15 parents served by CYFD, as required by the cited statutory sections. We are 16 persuaded that it is reasonable for CYFD to believe that the disclosure of the identity 17 and contact information of foster parents caring for children in CYFD custody is 18 likely to allow the recipients of that information to identify and locate children in

See § 32A-4-33(A), (D); § 32A-5-8; § 32A-6A-24(A); § 32A-3B-22(A);

6

§ 32A-5-6.

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1 CYFD’s care, who, after all, reside in the homes of these foster parents. Protection 2 of foster parents’ names and addresses and contact information is necessary to 3 protect the identity and location of these children. The Regulation thus serves the 4 purposes of the multiple confidentiality statutes relied on by CYFD. It, therefore, 5 has the force of law and is incorporated by the catchall exception to IPRA. 6 CONCLUSION 7 {32} For the above reasons, we reverse the district court’s grant of Plaintiff’s 8 motion for summary judgment and remand for entry of judgment for CYFD in 9 accordance with this opinion. 10 {33} IT IS SO ORDERED.

11 ________________________ 12 JANE B. YOHALEM, Judge

13 I CONCUR:

14 _________________________________ 15 JACQUELINE R. MEDINA, Judge

16 SHAMMARA H. HENDERSON, Judge, dissenting.

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1 HENDERSON, Judge (dissenting). 2 {34} I respectfully dissent from the majority opinion. I cannot agree that the 3 resolution of this case necessitates an analysis of CYFD’s arguments regarding the 4 grant of summary judgment in its favor. To preserve Plaintiff’s constitutional right 5 to an appeal, we must refrain from wading into the merits of the parties’ cross 6 motions for summary judgment. I explain my position after providing a brief 7 background of the case and the facts giving rise to this appeal. 8 {35} Plaintiff sent three IPRA requests to CYFD in 2019 and 2020. The first request 9 sought “[a]ny and all emails, text messages and meeting notes that relating [sic] to 10 and/or including ‘Maralyn’ and or ‘Maralyn Beck’ since August 1, 2018 from CYFD 11 Protective Services employees.” In response to this request, “CYFD produced 12 approximately 839 pages of records with foster parents’ email addresses and 13 identifying information redacted.” The second request sought “a list of all foster care 14 providers and parents for the past [eighteen] months in New Mexico who currently 15 possess a license, or formerly held a foster care license in the last [eighteen] months.” 16 CYFD denied this request and “explained that identifying information of foster 17 parents and adoptive families is confidential under . . . Regulation [8.26.4.22(B) 18 NMAC] (the Regulation).” The third request sought “all emails concerning state 19 business from any and all private email servers or accounts of Brian Blalock [(CYFD

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1 Cabinet Secretary)] from January 1st 2019 to the present.” Defendant CYFD 2 responded that they “ha[d] not located any records responsive to this request.” 3 {36} Subsequently, Plaintiff filed suit under IPRA based on CYFD’s refusal to 4 provide the redacted information she sought in her first request, the list of foster care 5 providers she sought in her second request, and Brian Blalock’s emails that she 6 sought in her third request. Both Plaintiff and CYFD moved for summary judgment. 7 In her motion, Plaintiff argued that, in response to her first request, CYFD 8 improperly redacted and withheld information outside of the definition of “protected 9 personal identifier information” provided in Section 14-2-6(E) 7 and thus violated 10 IPRA. Additionally, Plaintiff argued that, in response to her second request, the 11 documents she sought were not confidential and that, in response to her third request, 12 the emails are public records. In its motion, CYFD argued that it had properly 13 redacted and withheld information in response to Plaintiff’s first and second request 14 because the Regulation was duly promulgated and “ha[d] the force of law to apply 15 through IPRA’s ‘as otherwise provided by law’ exemption to mandate the 16 confidentiality of information that could identify foster parents.” After a hearing on

Since Plaintiff submitted her IPRA requests, IPRA has been amended and its

7

subsections have been redesignated. Compare § 14-2-1 (2019), with § 14-2-1 (2023).

Because these amendments do not impact our analysis, and Plaintiff’s requests reference the pre-redesignated statute, I refer to the 2019 version of the statute.

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1 both motions, the district court denied Plaintiff’s motion for summary judgment and 2 granted CYFD’s motion. 3 {37} Then, Plaintiff filed a motion to reconsider, arguing that this Court’s proposed 4 calendar notice in Sanchez, A-1-CA-39456, was analogous to her case and warranted 5 summary judgment in her favor. In this motion, Plaintiff only requested 6 reconsideration of the district court’s order regarding her first two IPRA requests 7 and did not seek reconsideration of the court’s ruling as to her third IPRA request. 8 In response, CYFD argued that Sanchez was factually and legally distinguishable 9 from the current case and did not support reversing the district court’s grant of 10 summary judgment in its favor and the denial of Plaintiff’s motion for summary 11 judgment. After hearing argument on the motion to reconsider, the district court 12 reversed its prior ruling, thereby denying CYFD’s motion for summary judgment 13 and granting Plaintiff’s motion for summary judgment. Specifically, the district 14 court found that Sanchez was “persuasive that records in this matter were improperly 15 redacted as argued in Plaintiff’s [m]otion for [s]ummary [j]udgment and that while 16 the Court of Appeals[’] decision in Public Employee Labor Relations Board, 1996- 17 NMSC-024, . . . provides some support for the position of Defendants, it cannot be 18 read to add information into the list of personal identifying information that the 19 Legislature provided in . . . [Section] 14-2-6(E).”

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1 {38} CYFD appeals and explicitly argues that the district court abused its discretion 2 in granting Plaintiff’s motion for reconsideration because (1) CYFD redacted 3 information in its responsive documents to Plaintiff’s first request and denied 4 Plaintiff’s second request in accordance with a duly promulgated regulation that 5 mandated the redaction and withholding, which was valid under the “as otherwise 6 provided by law” IPRA production exception; and (2) the district court relied on a 7 factually distinguishable, non-precedential authority to support its grant of 8 Plaintiff’s motion for reconsideration. In addressing CYFD’s first argument, the 9 majority opinion unnecessarily analyzes whether the district court’s initial grant of 10 summary judgment in CYFD’s favor was proper. However, the majority’s 11 determination that summary judgment in CYFD’s favor was proper precludes 12 Plaintiff’s ability to appeal the district court’s initial order, which came to the same 13 conclusion, on remand. Therefore, I would resolve the case based on CYFD’s second 14 argument and determine that the district court abused its discretion in granting the 15 motion for reconsideration, while remanding for further proceedings on the propriety 16 of summary judgment. 17 {39} “[A]n aggrieved party shall have an absolute right to one appeal.” N.M. Const. 18 art. VI, § 2. “The opinion of the court in [a] former appeal is the law of the case and 19 is binding upon this court on a second appeal.” Van Orman v. Nelson, 1969-NMSC- 20 035, ¶ 3, 80 N.M. 119, 452 P.2d 188 (citation omitted). Additionally, an appellee’s

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1 failure to submit a responsive brief is not considered a concession or waiver on an 2 issue. See Mannick v. Wakeland, 2005-NMCA-098, ¶ 39, 138 N.M. 113, 117 P.3d 3 919 (stating that an appellee’s failure to argue and support an issue with citations to 4 authority does not amount to a concession on the issue). Therefore, the majority’s 5 analysis thus unnecessarily goes beyond the scope of what is required. This Court’s 6 analysis should be necessarily limited to addressing the issue of whether the district 7 court’s grant of Plaintiff’s motion to reconsider was proper. 8 {40} “We review the [grant or] denial of a motion for reconsideration for abuse of 9 discretion.” Unified Contractor, Inc. v. Albuquerque Hous. Auth., 2017-NMCA-060, 10 ¶ 77, 400 P.3d 290. “[E]ven when we review for an abuse of discretion, our review 11 of the application of the law to the facts is conducted de novo. Accordingly, we may 12 characterize as an abuse of discretion a discretionary decision that is premised on a 13 misapprehension of the law.” Harrison v. Bd. of Regents of Univ. of N.M., 2013- 14 NMCA-105, ¶ 14, 311 P.3d 1236 (internal quotation marks and citations omitted). 15 “The application of incorrect substantive law constitute[s] an abuse of discretion.” 16 Freeman v. Fairchild, 2018-NMSC-023, ¶ 33, 416 P.3d 264. 17 {41} CYFD argues that the district court abused its discretion in relying on Sanchez 18 as persuasive authority in support of Plaintiff’s motion for reconsideration. 19 Specifically, CYFD argues that Sanchez and its analysis are not persuasive on the 20 issue at bar because (1) “Sanchez did not apply [Public Employee Labor Relations

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1 Board] or Republican Party II,” (2) “Sanchez did not involve the application of an 2 IPRA exception,” and (3) “CYFD relied upon the Regulation” rather than the no 3 longer recognized “rule of reason” that was embraced by the district court in 4 Sanchez. I agree with the majority that Sanchez is not persuasive authority in this 5 case and explain below. 6 {42} Memorandum opinions and proposed notices for summary disposition are not 7 binding precedent. Hennessy v. Duryea, 1998-NMCA-036, ¶¶ 23-25, 124 N.M. 754, 8 955 P.2d 683 (reiterating that memorandum opinions are not precedent and urging 9 lower courts and members of the bar to be cautious about relying on unpublished 10 opinions decided on the summary calendar); see Rule 12-405(A) NMRA (specifying 11 that memorandum opinions are non-precedential). Additionally, “cases are not 12 authority for propositions not considered.” Fernandez v. Farmers Ins. Co. of Ariz., 13 1993-NMSC-035, ¶ 15, 115 N.M. 622, 857 P.2d 22 (internal quotation marks and 14 citation omitted). Moreover, Supreme Court precedent is binding on lower courts. 15 See State ex rel. Martinez v. City of Las Vegas, 2004-NMSC-009, ¶¶ 20-22, 135 16 N.M. 375, 89 P.3d 47. 17 {43} Sanchez is factually and legally distinguishable from the instant case. Here, 18 the district court initially granted summary judgment in CYFD’s favor because, 19 under Section 14-2-1(H) and the Regulation, CYFD was required to treat the 20 “identifying information” of foster care parents as confidential, thereby exempting

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1 the information from disclosure under IPRA. The district court articulated the issue 2 as “whether the ‘as otherwise provided by law’ exemption to production embodied 3 in Section 14-2-1(H), . . . incorporates a regulation promulgated by . . . CYFD, which 4 requires that all case records and identifying information including foster and 5 adoptive families, and applicant files be kept confidential.” The district court found 6 that “8.26.4.22(B) NMAC was a duly promulgated regulation that has the force of 7 law to apply through Section 14-2-1(H)” based on our Supreme Court’s holding in 8 City of Las Cruces, 1996-NMSC-024. The district court also found that the 9 Regulation “effectuate[d] a statutory mandate to keep confidential identifying 10 information of foster parents.” Thus, the district court found that CYFD had not 11 violated IPRA by either redacting the identifying information or by denying 12 Plaintiff’s request for “a list of all currently licensed foster care parents, as such a 13 list is confidential pursuant to 8.26.4.22(B) NMAC.” 14 {44} By contrast, in Sanchez, the “[p]laintiff challenge[d] redactions from 15 documents that it obtained from [the d]efendant pursuant to [IPRA].” Calendar 16 Notice at 1, Sanchez, A-1-CA-39456 (Ct. App. Nov. 17, 2021). The defendant 17 provided responsive documents, “but redacted certain addresses, telephone numbers, 18 and email addresses.” Id. at 2. The “[p]laintiff challenged the redactions, contending 19 that the information in question was not subject to any of the enumerated IPRA 20 exemptions from disclosure.” Id. The defendant “argued that the redacted

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1 information did not constitute ‘public records’ subject to IPRA.” Id. at 3. This Court 2 proposed summarily reversing the case because the records at issue were in fact 3 public records and did not fall within the exception for “protected personal identifier 4 information” under IPRA. Id. at 3, 5. Lastly, this Court admonished what it 5 characterized as the district court’s application of the “rule of reason,” which was 6 struck down by our Supreme Court in Republican Party II, 2012-NMSC-026. See 7 Calendar Notice at 4, Sanchez, A-1-CA-39456. Ultimately, this Court adopted its 8 reasoning from its proposed summary disposition in a memorandum opinion. 9 Sanchez, A-1-CA-39456, mem. op. ¶ 1. 10 {45} In this case, the district court abused its discretion when it relied on the 11 analysis in the proposed summary disposition notice for Sanchez as persuasive 12 because it is neither factually or legally on point, nor is it binding authority. Here, 13 unlike the entity in Sanchez, CYFD did not redact information from responsive 14 documents based on an argument that the information was not a public record. 15 Calendar Notice at 3, Sanchez, A-1-CA-39456. Instead, CYFD relied on the 16 Regulation to redact the information because the Regulation “implements a statutory 17 mandate that designates foster family identifying information as confidential.” 18 Moreover, the district court in Sanchez relied on the “rule of reason” to make its 19 finding, Calendar Notice at 4, Sanchez, A-1-CA-39456, while the district court in 20 this case relied on our New Mexico Supreme Court precedent, specifically Public

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1 Employee Labor Relations Board, 1996-NMSC-024, for the rule “that duly 2 promulgated regulations have the force of law to apply through IPRA’s ‘as otherwise 3 provided by law’ exemption.” Therefore, although Sanchez and this case both 4 involve IPRA, the facts and legal issues in each case are so vastly divergent, they 5 are fundamentally different. Because “cases are not authority for propositions not 6 considered,” Sanchez has no persuasive value that can be applied to this case. 7 Fernandez, 1993-NMSC-035, ¶ 15. 8 {46} The district court also misapprehended the legal question at issue in the instant 9 case. In its order granting Plaintiff’s motion to reconsider, the district court stated 10 that, “while the Court of Appeals’ decision in [Public Employee Labor Relations 11 Board] . . . provides some support for the position of Defendants, it cannot be read 12 to add information into the list of personal identifying information that the 13 Legislature provided in [IPRA].” First, Public Employee Labor Relations Board is 14 a New Mexico Supreme Court opinion, and not a Court of Appeals opinion as the 15 district court’s order asserts. 1996-NMSC-024. Second, the district court’s prior 16 order granting summary judgment was based on CYFD’s argument that relied on 17 Public Employee Labor Relations Board for the proposition that the Regulation was 18 a duly promulgated regulation that was incorporated through the catchall “as 19 otherwise provided by law” exemption to IPRA, and not based on an expansion of 20 IPRA’s narrowly construed definition of “protected personal identifier information.”

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1 Therefore, the analysis provided by our Supreme Court in Public Employee Labor 2 Relations Board was on point and binding on the district court. 3 {47} Thus, because Sanchez is not binding authority generally and is not persuasive 4 to the instant case, it was inappropriate for the district court to consider Sanchez and 5 in its analysis in making its finding was an abuse of discretion. See Fernandez, 1993- 6 NMSC-035, ¶ 15; see also State v. Moreland, 2008-NMSC-031, ¶ 9, 144 N.M. 192, 7 185 P.3d 363 (“An abuse of discretion occurs when the ruling is clearly against the 8 logic and effect of the facts and circumstances of the case.” (internal quotation marks 9 and citation omitted)). Additionally, the district court misapplied the law by relying 10 on the legal analysis from Sanchez, rather than the analysis set forth by our Supreme 11 Court in Public Employee Labor Relations Board, which constitutes an abuse of 12 discretion. Harrison, 2013-NMCA-105, ¶ 14 (“[E]ven when we review for an abuse 13 of discretion, our review of the application of the law to the facts is conducted de 14 novo. Accordingly, we may characterize as an abuse of discretion a discretionary 15 decision that is premised on a misapprehension of the law.” (internal quotation 16 marks and citations omitted)). Thus, the district court abused its discretion in 17 granting Plaintiff’s motion to reconsider. 18 {48} For the above reasons, I would reverse the district court’s grant of Plaintiff’s 19 motion to reconsider and remand to the district court to reinstate its former grant of 20 summary judgment in favor of CYFD and its former denial of Plaintiff’s motion for

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1 summary judgment. There is no need to pursue the analysis further as the district 2 court clearly abused its discretion in reversing its initial order.

3 __________________________________ 4 SHAMMARA H. HENDERSON, Judge