We see privilege issues discussed in judicial decisions, legal commentary, and mainstream news. After skipping an October roundup due to a trial, here is a roundup of interesting privilege issues for November 2016.
- With Senator Sessions’ likely appointment as Attorney General, many are asking whether the Yates Memorandum and its stance on seeking privilege waiver for cooperation credit will change. Jeff Wood’s article in InsideCounsel addresses the issue, and the National Law Journal has comments from Deputy Attorney General Sally Yates.
- For a refresher on the Yates Memorandum’s effect on the attorney–client privilege, see my article titled Protecting Privilege in a Post-Yates Memorandum World.
- Vice President–Elect Mike Pence is asserting, in part, the attorney–client privilege as the legal basis to withhold communications with other governors regarding a potential legal challenge to President Obama’s immigration executive order. Story here. More…
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.
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.
In Republican Party, the New Mexico Republican Party made a request under the State’s Public Records Act for Taxation and Revenue Department 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 they were protected by the executive privilege.
The Supreme Court engaged in an exhaustive review of federal and other states’ law regarding the executive privileges, including the deliberative process privilege and the presidential or chief executive communications privilege. The Court ably distinguished these two evidentiary privileges but held “emphatically that no deliberative process privilege exists under New Mexico law” with little explanation as to why the privilege should not be recognized. The only justification seemed to be 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. However, many state courts recognize a common-law deliberative process privilege without a correlating public records act justification, and the N.M. Supreme 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 be mindful 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. 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.
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, and now the issue likely will have to be addressed, if at all, through legislation or amendments to the N.M. Rules of Evidence. 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 state governmental agencies may assert the deliberative process privilege in federal court but not in state court.