N.M. Supreme Court and Executive Privilege Part II: Chief-Executive Communications Privilege 2

N.M. Governor Susana Martinez

In Republican Party of New Mexico v. New Mexico Taxation & Revenue Dep’t, 283 P.3d 853 (N.M. 2012), the New Mexico Supreme Court issued a major decision on the executive privilege by rejecting the deliberative process privilege but adopting a limited chief-executive communications privilege.  PoP analyzed the deliberative process privilege in an earlier post, and focuses here on the scope of the chief-executive communications privilege.

The Court analyzed federal decisions recognizing and applying the presidential communications privilege and the few state decisions that have adopted a privilege for gubernatorial communications, best described as a chief-executive communications privilege. The Court decided to recognize a communications-based privilege for New Mexico’s governor, but severely limited its scope.  The privilege applies only to communications involving the governor’s decisionmaking and specifically does not apply to communications related to other executive branch decisionmaking, such as communications of Cabinet-level departments.

The privilege applies to communications that are authored or solicited and received by the either the governor or an “immediate advisor.”  The Court refused to identify “how far down the chain” the privilege extends, saying only that it applies to “those communications to or from individuals in very close organizational and functional proximity to the Governor.”

The Court held that the chief executive communications privilege is qualified, meaning that an individual may overcome the privilege by a sufficient showing of need.  To make this need determination, the Court must balance the public’s interest in preserving confidentiality to promote intra-government candor against the individual’s need for the information.  The balancing test, however, only applies when the communications are sought during discovery in civil litigation and does not apply when the request comes under the state’s Public Records Act.

PoP Analysis. As noted in an earlier post, 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 be mindful that the phrase “executive privilege” is a broad phase that encompasses four distinct evidentiary privileges: (1) chief-executive communications privilege; (2) deliberative process privilege; (3) law-enforcement privilege; and (4) government–informant privilege.  And it would be helpful to the bench and bar if lawyers and courts would follow the New Mexico Supreme Court’s lead and use the proper terminology when referring to these privileges.

By limiting the scope to communications by the governor and only her immediate supervisors, the Court adopted a narrow chief-executive communications privilege. And the Court properly held that the privilege is qualified only when asserted to resist discovery in civil litigation and is absolute when records are sought under a public records act request.  The reason is that individuals making a public records act request are not required to show a need for the documents while in civil discovery parties must request only documents reasonably likely to lead to the discovery of admissible evidence.  Many courts ignore this distinction, and the N.M. Supreme Court recognized it.