City of Santa. Fe, New Mexico 200 Lincoln Avenue, P.O. Box 909, Santa Fe, .M. 87504-0909 Peter N. Ives, Joseph M. Macstas, Carmichael A. Dominguez. Christopher M. Rivera, Ronald S. Triqillo, The Honorable Hector Balderas Of?ce of the Attorney General 408 Galisteo Street Santa Fe NM 87501 Attn: Patricia Salazar Dear Attorney General Balderas: I am writing to ask for clari?cation regarding your of?ce?s Inspection of Public Records Act Compliance Guide (?Compliance Guide?) and NMSA 1978, Section (?matters of opinion?). As Mayor I have worked hard to cultivate a culture of accountability among city employees to each other as well as to the public, for whom we all work. And because I have seen them consistently and honestly hold employees to a high standard of accountability, I know that value is widely shared by senior staff including the hard-working attorney?s in the City Attorney?s Of?ce (CAO), the City Manager, and the Deputy City Manager. However, in too many instances, we are not able to share these stories with the public in a way that respects our employees? rights to due process under the law, protects the taxpayer from expensive employment lawsuits, and at the same time reassures the public that we are working for them in a way they can trust. Too often, we let the public think the worst, because we are limited in what we can reveal. As a result, I believe the current stance has limited our ability as a city to provide accountability and tranSparency to the public. As I understand it, the City Attomey?s Of?ce (CAO) position is based on legal propositions found in the Compliance Guide, IPRA, Constitution, and case law . I am requesting a clari?cation regarding the legal requirements of the City of Santa Fe to provide records regarding lntemal Affairs investigations and disciplinary actions against police of?cers when requested via IPRA. As it has been laid out in discussion with our Attorney?s of?ce, the counterpoint to the CA0 view asserts that terms of discipline, including the rationale and the penalty, are public jm-irr -lI. Coma/cs, .lIm'or Councilors: Signs 1. Lindell, Mayor Pro Tcm, Dist. Renee Villarreal, Dist. Disr. Disr. Disr. Disr. Dist. Mike Harris, Dist. information, that Section does not exempt factual statements, and that terms of discipline are factual statements. This conclusion is based on language in Example 10 from the Compliance Guide: ?However, factual information in the ?le concerning salary, annual leave or con?icts of interest is not similarly protected.? (IPRA Guide, 8th ed., p. 10, example 10). Speci?cally, I hope the Attorney General?s Of?ce will provide clari?cation regarding Section and perhaps that decision may provide more ?exibility in releasing information about our work to hold employees to a high standard of accountability and public trust. Below, I am enclosing a summary legal argument provided by the CA0 supporting its position that Internal Affairs investigations and disciplinary actions are not subject to inspection under IPRA. Sincerely, Javier M. Gonzales Mayor City of Santa Fe Legal Argument declaration of policy states that it is the public policy of New Mexico ?that all persons are entitled to the greatest possible information regarding the affairs of government and the of?cial acts of public of?cers and employees.? ?14-2-5, NMSA 1978. However, not all records of the State are subject to inspection. The statute expressly exempts twelve categories of records from disclosure. NMSA 1978. The police department internal affairs investigations and disciplinary actions are exempt from disclosure under the ?matters of opinion? exemption in and the law enforcement exemption of Further, they are exempt pursuant to the exemption in ?as otherwise provided by law,? as the disclosure would impact and impair the constitutional rights of police of?cers. 1. Matters of Opinion Exemption, The seminal opinion interpreting this exemption under IPRA is Newsome v. Alarid, 90 NM. 790, 568 P.2d 1236 (1977). The Supreme Court in Newsome explained the basis for the matters of opinion exemption in documents in personnel ?les as follows: The Legislature quite obviously anticipated that there would be critical material and adverse opinions in letters of reference, in documents concerning disciplinary action and promotions and various other opinion information that might have no foundation and fact but, if released for public view, could be seriously damaging to an employee. Id. at 794, 1240. As noted in the Compliance Guide, more recent case similarly interpreted the exception to cover matters of opinion related to the working relationship between an employer and employee such as internal evaluations; disciplinary reports or documentation; promotion, demotion, or termination information, and performance assessments.? IPRA Compliance Guide, 8th ed. at 9, citing Cox v. New Mexico Dept. of Pub. Safety, 2010-NMCA-096, ?l 22. In an unpublished opinion, the Court of Appeals held: ?The record before us re?ects that the documents in question were created for the purpose of conducting internal disciplinary proceedings. This is suf?cient to establish that the documents concern disciplinary action, such that they were properly withheld.? Leirer v. New Mexico Dep 't of Pub. Safety, 2016 WL 3958959, at (N .M. Ct. App. June 7, 2016)(intemal citations omitted). Internal affairs investigations contain the opinions of the investigator regarding conduct of police of?cers under investigation. Although the internal affairs investigation report is not ?in personnel ?les,? such investigations do implicate personnel matters of City employees and so they constitute personnel related opinions falling under the rationale articulated by the Supreme Court in Newsome. ?[T]he location of a record in a personnel ?le is not dispositive of whether the exception applies; rather, the critical factor is the nature of the document itself.? Cox, 2010-NMCA-096, 1] 21. Likewise, the internal affairs investigative interviews of witnesses contain matters of opinion of the interviewee about the conduct of the of?cers under investigation, and should be deemed exempt from disclosure under IPRA. The purpose of police department internal affairs investigations is to maintain internal discipline, departmental integrity, and to encourage citizens to freely express concerns of misconduct, malfeasance, or other inappropriate conduct of police of?cers. Both the complainant and the target are informed that the investigation will be kept con?dential. If a complainant?s identity and statement is disclosed to the public, this could prevent a candid reporting of the perceived misconduct, and impair the department?s ability to maintain effective and just law enforcement. 2. Law Enforcement Exemption Under These records also enjoy exemptions from public inspection pursuant to NMSA 1978, which exempts speci?cally: Law enforcement records that reveal con?dential sources, methods, information or individuals accused but not charged with a crime. Law enforcement records include evidence in any form received or compiled in connection with any criminal investigation or prosecution by any law enforcement or prosecuting agency, including inactive matters or closed investigations to the extent that they contain the information listed in this paragraph; Internal affairs investigations are law enforcement records, as it was compiled by an investigator for the Santa Fe Police Department for the purpose of investigating and analyzing potential misconduct or illegal activity of Santa Fe Police of?cers. The allegations therein relate to of?cers who have been accused, but not charged with any crime. Taped interviews of witnesses and their transcripts are ?evidence in any form . . . compiled in connection with . . . prosecution by any law enforcement . . . agency?. The New Mexico Supreme Court has determined that ?the IPRA exception for law enforcement records in a criminal investigation is illustrative of a vitally important public policy concern, leading to immunity from discovery for some police investigative materials in civil litigation.? Estate of Romero v. City of Santa Fe, 2006-N.M.S.C. 028, 139 NM. 671 678. The Romero court was considering a request for documents in the context of discovery in civil litigation, and not in the context of a request for public records. However, that decision clearly underscored the importance of con?dentiality for law enforcement investigatory records, and refused to order their disclosure absent an in camera rev1ew. Similarly, the Court of Appeals has refused to treat police internal affairs investigative ?les as public record. In State v. Pohl, 89 NM. 523, 554 P.2d 984 (Ct. App. 1976), the criminal defendant moved to discover internal affairs investigations concerning allegations of police brutality against the arresting of?cer. The trial court denied the defendant?s discovery motion and denied his request for in camera inspection of the ?les to determine relevancy. The Court of Appeals af?nned, but remanded for in camera review to determine whether the arresting of?cer?s ?les contained any material matters to the defense. Since the Pohl decision, criminal defendants in New Mexico have been able to obtain internal affairs investigation ?les only through the safeguard of the in camera inspection procedure. However, where a criminal defendant has not shown a speci?c need to have such a record reviewed in camera, the request has been denied. See State v. Roybal, 115 NM. 27, 846 P.2d 333 (Ct.App. 1992) (Defendant failed to make a requisite showing of need to inspect internal affairs ?les on one of?cer when he relied on a newspaper article suggesting that another of?cer had provided false information.) cert denied, 114 NM. 550, 844 P.2d 130 (1992) cf State v. Baca, 115 NM. 536, 854 P.2d 363 (Ct.App. 1993) (?we cannot determine whether the suppressed evidence was material to Defendants? claim of self-defense, but unlike Pohl, Defendants neither requested an in camera hearing nor showed ?a speci?c a need as could be expected under the circumstances??). Courts routinely require that before internal affairs records are disclosed, a protective order is entered which prohibits further disclosure except as necessary for the litigation of the case. Mason v. Stock, 869 F.Supp. 828, 836 (D.Kan. 1994); Beach v. City of Olathe, Kansas, 203 F.R.D. 489, 495 (D.Kan. 2001). The Federal Courts in New Mexico likewise require protective orders for internal affairs ?les of police of?cers, and deny disclosure in certain circumstances after in camera review. See unreported opinions in_Mazzom' v. Morales, et al., No. Civ. 07-432 Jan. 7, 2008 (stipulated protective order for internal affairs ?les of police of?cers in civil rights action, after in camera review, not ordered produced for lack of relevance); Cardenas v. Fisher, et al., No. CIV 06-0936 April 30, 2007 (stipulated protective order for internal affairs ?le of police of?cer in civil rights action, after in camera review not ordered produced for lack of relevance and based upon police of?cers? right to privacy); Jones v. City of Albuquerque, et al., No. CIV 04-174 Oct. 24, 2005 (internal affairs ?les and complaints against law enforcement of?cers ordered to be subject to a protective order, the terms of which required Plaintiff and his counsel to ?hold . . . internal affairs ?les in the strictest of con?dence, store the ?les securely, and use the ?les solely for the purposes of this litigation,? return them, and destroy all copies at the conclusion of the case); and Valles v. City of Albuquerque, No. CIV 03-1171 March 2, 2005, (request for production of internal affairs ?le of police of?cer denied for lack of relevance). Clearly, if police internal affairs investigation ?les are subject to disclosure under IPRA, no in camera review is required, nor would there be a need for protective orders which limit the use and disclosures of such ?les. 3. Constitutional Rights of Of?cers. Avoiding the disclosure of personal matters is a privacy interest which the United States Supreme Court recognizes. Whalen v. Roe, 429 US. 589, 598 (1977). Although it is unspeci?ed in the federal constitution, the right to privacy is ?within the penumbra of speci?c guarantees of the Bill of Right,? including the Tenth Amendment to the Constitution of the United States. Griswold v. Connecticut, 381 US. 479 (1965). More speci?cally, law enforcement of?cers have a recognized expectation of privacy as to personal matters. Denver Policemen ?s Protection Association v. Lichtenstein, 660 F.2d 432, 435 (10th Cir. 1981). The privacy privilege is held by the employee and may be waived by them alone. State ex rel Barber v. McCotter, 106 NM. 1, 738 P.2d 119 (1987). The individual of?cers who are the subject of an internal affairs investigation enjoy constitutional rights to due process of law for deprivation of their liberty and/or property interests under the Fourteenth Amendment to the United States Constitution. See Board of Regents v. Roth, 408 US. 564, 570 92 2701, 2705 (1972). In addition, the named of?cers are protected from intrusion into fundamental aspects of their personal privacy under the Fourteenth Amendment due process clause. See Paul v. Davis, 424 US. 693, 713, 96 1155 (1976); Stidham v. Peace Of?cer Standards and Training, 265 F.3d 1144, 1155 (10th Cir. 2001). The Tenth Circuit has stated a four part test to determine whether statements in government records violate a persons? liberty interest in his good name and reputation: First, to be actionable, the statements must impugn the good name, reputation, honor or integrity of the employee. Second, the statements must be false. Third, the statements must occur in the course of terminating the employer or must foreclose other employment opportunities. And fourth, the statements must be published. (Internal citations omitted.) Workman v. Jordan, 32 F.3d 475, 480-481 (10th Cir. 1994). The of?cers are entitled to a name clearing hearing under due process if they establish a violation of a liberty interest. Workman v. Jordan at 480. Because internal affairs investigation reports have always been held as con?dential, not subject to production under IPRA, name clearing hearings are not provided by the City of Santa Fe with regard to any stigmatizing allegations made during such investigations. If an internal affairs investigation is held to be public record, individual of?cers could state a violation of their liberty interest under the due process clause of the Fourteenth Amendment for the City?s failure to provide a name clearing hearing. Buxton v. City of Plant City, Florida, 871 F.2d 1037 (1 1th Cir. 1989); Cox v. Roskelley, 359 F.3d 1105 (9th Cir. 2004). Failure to provide a name clearing hearing for violation of a police of?cer?s liberty interest has resulted in a jury award in excess of $250,000. Palmer v. City of Monticello, 31 F.3d 1499, 1508 (10th Cir. 1994). A ?nding that internal affairs investigation ?les are public record would require due process hearings for all police of?cers charged with misconduct, even where no allegations of misconduct were substantiated. The public?s right to know under IPRA is a statutory right, and cannot trump the federal constitutional rights of individual of?cers. In addition, the statements by the individual of?cers under investigation are compelled under the threat of termination for failure to answer questions in the investigation. The United States Supreme Court has held that statements elicited as a result of a compelling choice between self-incrimination and loss of a public job are inadmissible in Court as impairing a person?s rights under the Fifth Amendment to the United States Constitution. Garrity v. New Jersey, 385 US. 493, 87 616 (1967). If the coerced statements of the police of?cers in internal affairs investigations are disclosed to the public, the of?cer?s protection under Garrity would be eviscerated. Based on this body of law, it is the position that internal affairs investigations and disciplinary actions are not subject to public inspection under IPRA.