N.M. Supreme Court & Executive Privilege Part 1: Deliberative Process Privilege

In a move that places the state at odds with federal law and many state laws, the New Mexico Supreme Court recently issued a major opinion regarding executive privilege.  In Republican Party of New Mexico v. New Mexico Taxation & Revenue Dep’t, 283 P.3d 853 (N.M. 2012), the Court rejected a deliberative process privilege and recognized a limited, state constitutional-based chief executive communications privilege. In this post we will focus on the Court’s rejection of the deliberative process privilege.

The Request

In Republican Party, the N.M. Republican Party requested under the state’s Public Records Act records relating to the issuance of drivers’ licenses to foreign nationals. The Public Records Act contains an exception for records exempted from disclosure by other state law, which includes constitutional and common-law privileges. The State refused production of some documents on grounds that the executive privilege protected them from disclosure.

The Ruling

The Supreme Court engaged in an exhaustive review of federal and other states’ law regarding executive privileges, including the deliberative process privilege and the presidential or chief executive communications privilege.  The Court ably distinguished these two privileges but held “emphatically that no deliberative process privilege exists under New Mexico law.”

The Analysis

The Court provided little explanation for its privilege rejection. The only stated justification was that the federal Freedom of Information Act (FOIA), which references the deliberative process privilege in Exemption 5, and the state Public Records Act, were not identical.  Many state courts recognize a common-law deliberative process privilege without a corresponding public records act justification, but the Court did not provide a common-law basis for rejecting the privilege.

POP Analysis

Many federal and state courts confuse and conflate the deliberative process privilege and the chief executive communications privilege by labeling each the “executive privilege.”  Courts and lawyers should recognize that the phrase “executive privilege” is broad and encompasses four distinct evidentiary privileges:

1. Chief-executive communications privilege;
2. Deliberative process privilege;
3. Law-enforcement privilege; and
4. Government–informant privilege.

Lawyers and courts could improve understanding of these distinctions by following the New Mexico Supreme Court’s lead and using the proper terminology when referring to these privileges.

The Court’s rejection of the deliberative process privilege breaks with federal law and several states.  But the Court failed to sufficiently explain why New Mexico should not recognize the deliberative process privilege. Now only legislation or amendments to the N.M. Rules of Evidence can address this issue.

One conflict-of-law issue to consider: what if New Mexico is sued in federal court on a federal question (e.g. § 1983 civil rights case) and asserts that the federal deliberative process privilege protects deliberative documents from discovery—would the court apply the federal privilege or hold that no privilege exists?

Courts differ whether to apply the federal deliberative process privilege in these situations. See United States v. Lake County Bd. of Comm’rs, 233 F.R.D. 523, 525 n.1 (N.D. Ind. 2005). But if the federal privilege applies, then New Mexican governmental agencies may assert the deliberative process privilege in federal court but not in state court.