SANCHEZ V. BOARD OF REGENTS, 1971-NMSC-065,
82 N.M. 672, 486 P.2d 608 (S. Ct. 1971)
ERNEST T. SANCHEZ and ARTHUR M. DULA,
III,
Petitioners-Appellees,
vs.
BOARD OF REGENTS OF EASTERN NEW MEXICO UNIVERSITY, and
ERNEST WHEELER, JR., MARJORIE E. BECK, HOWARD MARTIN,
DONALD ANDERSON and EUGENE E. BROCKMAN, the
Members Thereof, Respondents-Appellants
SUPREME COURT OF NEW MEXICO
1971-NMSC-065, 82 N.M. 672, 486 P.2d 608
Appeal from the District Court of
Roosevelt County, Blythe, Judge
Rehearing Denied June 29, 1971; Motion
for Leave to File Second Rehearing July 20, 1971
JAMES A. MALONEY, Attorney General, Santa
Fe, New Mexico, FRED BOONE, Special Assistant Attorney General, Portales, New
Mexico, Attorneys for Appellants.
PAUL A. PHILLIPS, Albuquerque, New
Mexico, Attorney for Appellees.
HAL SIMMONS, Albuquerque, New Mexico
Amici Curiae on behalf of New Mexico Press Association and New Mexico
Broadcasters Association.
McMANUS, Justice, wrote the opinion.
J. C. Compton, C.J., Paul Tackett, J.,
OMAN, J., and Stephenson, J., dissenting.
{1} This is an appeal from
the granting by the District Court of Roosevelt County of a writ of mandamus.
{2} Both
petitioners-appellees (Petitioners) were students at Eastern New Mexico
University (ENMU). Mr. Sanchez was editor of and reporter for the ENMU Chase,
the student newspaper. Mr. Dula was a photographer for it. Respondents-appellants
(Respondents) are the Board of Regents of ENMU and the individual members of
the board. Mr. Wheeler, one of the Respondents, is chairman of that board. Dr.
Charles W. Meister, not a party, is President of ENMU.
{3} Petitioners sought to inspect
a certain list of proposed faculty salaries. The requests were refused by
Respondents and this action followed. The writ of mandamus from the granting of
which this appeal was taken directed Respondents to produce a "list of
faculty contracts and salary provisions." We take note of the amicus
curiae brief filed on behalf of the New Mexico Press Association and the New
Mexico Broadcasters Association.
{4} On March 13, 1970,
Respondents held a meeting in Roswell with Petitioners in attendance. The conduct
of the meeting generally did not win the approval of Petitioners, but their
specific complaint has to do with certain proceedings had by the board in
relation to faculty salaries for the upcoming school term. Section 73-22-7,
N.M.S.A. 1953 (made applicable to the ENMU Regents by § 73-22-36, N.M.S.A.
1953) charged the board to "* * * determine the compensation to be paid to
the superintendent and teachers."
{5} After administrative
activity by the staff which is not pertinent, Dr. Meister was prepared to
present his recommendations to the board. To facilitate this evolution, a list
of proposed faculty salaries for the 1970-71 term was prepared and presented to
the board at the March 13 meeting. The list was broken down into various
colleges and departments. The faculty members' names were listed at the
appropriate place with his or her proposed annual salary set opposite.
{6} The list was not a
document required by law to be prepared or preserved. It was prepared and used
as a matter of administrative convenience, but preparation and use of some sort
of list was a practical necessity, because it classified and named in excess of
160 individuals and set forth a proposed salary for each. The salaries listed
aggregated about $1,500,000.
{7} The board, by motion
made, seconded and carried, approved the list. The offers were made by
inserting the faculty member's name and proposed salary into a form of offer
covering the 1970-71 school year,
{*674} affixing
Dr. Meister's signature thereon, and transmitting the document to the faculty
member. This transmittal also occurred on March 13.
{8} These procedures resulted
in no contract to which ENMU or the State was a party. A contract could only
come into being upon acceptance of the offer by the individual faculty member.
The offer might be accepted by the faculty member, or the offer might be
refused, or a counter-offer transmitted. Negotiations might be had between the
staff and the faculty member which might or might not result in a contract. All
of these things normally occur between the time of the making of the offers and
the June 30 deadline.
{9} Proceedings at the March
13 meeting of the board would, in the normal course, be embodied in minutes and
approved at the next board meeting. The minutes are not before us. The manner
in which the material action of the board is treated in the minutes plays no
part in our decision.
{10} It is clear that
Petitioners requested inspection of the list at the March 13 meeting, which was
prior to the making of the offers, and made further requests on March 16 and
17, subsequent to the transmission of the offers but prior to the June 30
deadline when the offers might be in the process of acceptance, rejection or
negotiation.
{11} Section 71-6-2(C),
N.M.S.A. 1953 (Supp. 1969) reads as follows:
"'Public records' means all books, papers, maps,
photographs or other documentary materials, regardless of physical form or
characteristics, made or received by any agency in pursuance of law or in
connection with the transaction of public business and preserved, or
appropriate for preservation, by the agency or its legitimate successor as
evidence of the organization, functions, policies, decisions, procedures,
operations or other activities of the government, or because of the informational
and historical value of data contained therein. Library or museum material of
the state library, state institutions and state museums, extra copies of
documents preserved only for convenience of reference, and stocks of
publications and processed documents are not included;"
{12} Petitioners assert that
the list was a public record which they were entitled to inspect by the
provisions of §§ 71-5-1 and 71-5-2, N.M.S.A. 1953. Section 71-5-1, supra,
provides:
"Every citizen of this state has a right to inspect any
public records of this state except records pertaining to physical or mental
examinations and medical treatment of persons confined to any institutions and
except as otherwise provided by law." Section 71-5-2, supra, provides:
"All officers having the custody of any state, county,
school, city or town records in this state shall furnish proper and reasonable
opportunities for the inspection and examination of all the records requested
of their respective offices and reasonable facilities for making memoranda
abstracts therefrom, during the usual business hours, to all persons having
occasion to make examination of them for any lawful purpose."
{13} The writ of mandamus
granted by the trial court and ordered to be made permanent by a later "Decision"
of the court, read in part as follows:
"Whereas, it has been made to appear by the verified
complaint of Ernest T. Sanchez and Arthur M. Dula III that you, the
respondents, have refused to allow the petitioners to inspect public records in
your possession, namely, the list of faculty contracts and salary provisions, *
* *."
{14} The writ referred to
"faculty contracts and salary provisions" and not to proposed
contracts and salary provisions which were still in a negotiation stage.
Obviously, completed contracts would be public records and available to
inspection under the provisions of the New Mexico statutes.
{15} MacEwan v. Holm, 226 Or.
27, 359 P.2d 413 (1961) contains a scholarly review of
{*675}
the entire field of the public's right of inspection of records. In
MacEwan, supra, the defendant sought to inspect data relating to nuclear
radiation sources collected by the Oregon State Board of Health. The Oregon
Supreme Court held that the data involved were "public records" for
purposes of inspection by the public. This case can be readily distinguished
from the instant case inasmuch as scientific data obtained is the result of
testing of at least one facet of the overall purpose of the research. In MacEwan
v. Holm, supra, this phase of the research had been completed, whereas in our
case we only have an offered contract with no finality attached to it. In the
MacEwan case, supra, the court said:
"Whether a record is to be regarded as a public record
in a particular instance will depend upon the purposes of the law which will be
served by so classifying it. And a record may be a public record for one
purpose and not for another."
{16} We believe that no
useful purpose would be served by disclosing preliminary contractual
negotiations between the board and its professional and other employees.
{17} We do not consider
"thought processes," that is, the offer of a contract, such a public
record as would require public inspection. See Kottschade v. Lundberg, 280
Minn. 501, 160 N.W.2d 135 (1968), and Sorley v. Clerk, Mayor and Board of
Trustees, 292 N.Y.S.2d 575, 30 A.D.2d 822 (1968).
{18} United States District
Judge Leon R. Yankwich of the Southern District of California, had this to say
in an article published in 48 N.W.L. Rev. 527, 530 (1953-54):
"Only documents which present ultimate actions should be
accessible to the public. Those which are merely part of the preliminary steps
by which the conclusion was reached should become public, only in the discretion
of the particular agency * * *.
"If the record is one that is not kept pursuant to law
or as a part of the duty to be discharged by the officer, and is not required
to be filed or recorded, it is not subject to public inspection. * * * [I]n
the last analysis, only the memorials representing * * * ultimate action are,
in a sense, public. * * *" (Emphasis added.)
{19} In Linder v. Eckard, 152
N.W.2d 833 (Iowa, 1967), property owners requested certified copies of written
appraisal reports from the city clerk and director of urban renewal. The
request was refused. The Iowa Supreme Court held that:
"Under the particular circumstances existing here, we
find that the appraisals in question are not public records or writings and
that appellants are not entitled to certified copies of them * * *."
See, also, Wiley v. Woods, 393 Pa. 341, 141 A.2d 844 (1958),
and Coldwell v. Board of Public Works, 187 Cal. 510, 202 P. 879 (1921).
{20} Giving the full context
to the question, we must determine whether we should give legal character to
the demands of the curious who cannot patiently await the final result of a
salary contract negotiation. We would deny the right to inspect these records
of the Board of Regents on the subject of salary contract negotiations before
the task was completed. It would not seem fair that the general public should
know the contents of an offer of salary to an individual conceivably prior to
the receipt of the offer by the contemplated employee. As indicated in the
MacEwan case, supra, we would not take away the right of the Petitioners to
know about salary matters, but would merely suspend or defer the privilege of
inquiry until the Board of Regents reaches its final conclusion,
{*676} i.e., the culmination of the contract
between the board and the individual.
{21} This cause is hereby
reversed.
J. C. Compton, C.J., Paul Tackett, J., OMAN, J., and
STEPHENSON, J., dissenting.
OMAN, J., and STEPHENSON, J., dissenting.
{23} We feel obliged to
dissent from the majority opinion. In our view, the beneficent purposes of §§
71-5-1 and 71-5-2, N.M.S.A. 1953 would be fostered and the intention of the
legislature better served by adopting a broader interpretation of the statutes,
enhancing rather than restricting availability of governmental information and
news sources.
{24} Although the cited
statutes were passed in 1947 and have been the subject of numerous opinions of
the attorney general, no opinion of this court or of the Court of Appeals has
had occasion to construe them. In fact, so far as we can discover, § 71-5-1 has
only been twice cited, first by the Court of Appeals in State v. Harrison,
81
N.M. 623,
471 P.2d 193 (Ct. App. 1970) in which the court, for purposes of
resolving a legal point, assumed it to be applicable, and in Ortiz v.
Jaramillo, our number 9149, opinion filed April 5, 1971 (
82 N.M. 445,
483 P.2d
500) in which the parties conceded the records in question were public records.
{25} The majority opinion
quotes from the writ to the effect that it referred to "faculty contracts
and salary provisions" rather than those which were proposed, and that
completed contracts would obviously be available for inspection.
{26} No contention has
been advanced here or below that there is any doubt, confusion or controversy
about which document or "list" is the subject of the writ and of this
appeal. This is seemingly made clear in the splendid statement of facts which
graces the forepart of the majority opinion.
{27} The wording of the
writ seems to play no role in the disposition of the case, since the majority
proceeds to deal with the merits.
{28} Implicit in our form
of government is the necessity for a free flow of information to the citizenry.
This tenet has achieved status as a basic doctrine of political science For
example:
"The basis of our governments being the opinion of the
people, the very first object should be to keep that right. The right to
prevent [errors of] the people, is to give them full information of their
affairs through the channel of the public papers, and to contrive that these
papers should penetrate the whole mass of the people." [Thomas Jefferson
quoted] Laswell, National Security & Individual Freedom 62 (1950), 27
Ind.L.J. 212, n. 11 (1952).
"Knowledge will forever govern ignorance. And a people
who mean to be their own governors, must arm themselves with the power
knowledge gives. A popular government without popular information or the means
of acquiring it, is but a prologue to a farce or a tragedy, or perhaps both."
[James Madison] Laswell, supra, 62, 27 Ind.L.J., supra, 211, n. 9.
"I, for one, have the conviction that government ought
to be all outside and no inside. I, for my part, believe that there ought to be
no place where anything can be done that everybody does not know about * * *.
Everybody knows that corruption thrives in secret places, and avoids public
places, and we believe it a fair presumption that secrecy means impropriety * *
*. Government must, if it is to be pure and correct in its process, be
absolutely public in everything that affects it." Woodrow Wilson, The New
Freedom, 92-104 (1913), 11 Kan.L. Rev. 157 (1962).
{29} Although there is
authority to the effect that no right to inspect public documents or records
existed at early English common law, the doctrine was later formulated that
persons were entitled to inspection provided they had an interest that would
{*677} enable them to maintain or defend an
action for which the document or record could furnish evidence or necessary
information. 45 Am. Jur. "Records and Recording Laws" § 17. In Nowack
v. Fuller, 243 Mich. 200, 219 N.W. 749 (1928), Annot., 60 A.L.R. 1351 (1929)
the court rejected the early English common law doctrine and said that there
was no "* * * question as to the common law right of the people at large
to inspect public documents and records." Although the common law right
was subject to various limitations, it seems clear that some right existed to
inspect public documents. Accordingly, it is our view that the statutes here involved,
rather than being in derogation of the common law, enlarge a common law right
and should therefore "* * * be liberally construed in favor of
inspection." 76 C.J.S. "Records" § 35(b) (1952).
{30} The issues of this
lawsuit are whether the list in question was a public record and, if so,
whether the circumstances here nevertheless fall within some recognized
exception to the general rule of availability for inspection. Deciding these
matters involves a decision as to which party carries the burden of proof.
{31} In few if any states
has the legislature attempted to define public documents for purposes of their
inspection statutes or to spell out the circumstances under which inspection
may be required. Rather, such matters have been left to the courts. Study of
many cases, texts and law reviews convinces us that the leading case on the
subject is MacEwan v. Holm, 226 Ore 27, 359 P.2d 413 (1961), Annot., 85
A.L.R.2d 1086 (1962). The majority opinion in that case adopts a broad approach
to the public's right of inspection of records and is a scholarly review of the
entire field. The dissent espouses a more restrictive viewpoint.
{32} MacEwan points out
divergent results reached in many cases upon the subject of what constitutes a
public record, and one explanation for this is the failure to key the
definition of "public record" to the purpose of the law which will be
served by so classifying it. For example, the majority opinion cites and quotes
§ 71-6-2(C), N.M.S.A. 1953 (1969 Supp.) That section unquestionably defines the
term "public record" but it does so for purposes of the Public
Records Act (§§ 71-6-1 to 71-6-17) which deals with the subject of preservation
and storage of public documents rather than the right of citizens to their inspection.
It seems clear to us that that statute has no bearing upon the issues here.
{33} We are frankly
uncertain as to whether the majority opinion reaches its result on the basis
that the document in question is not a public record or whether, although
considering it to be a public record, it is nevertheless felt that under the
facts of this case inspection ought to be denied. We would hold that the list
is a public record and that it does not fall within any exception.
{34} Respondents have
here asserted that the list in question was not a public record within the
meaning of § 71-5-1, supra. We are of the view that the court should adopt a
liberal construction of our statute upon the issue of what constitutes a public
record. The majority in MacEwan states:
"Writings coming into the hands of public officers in
connection with their official functions should generally be accessible to
members of the public so that there will be an opportunity to determine whether
those who have been entrusted with the affairs of government are honestly,
faithfully and competently performing their function as public servants.
[Citations omitted] 'Public business is the public's business. The people have
the right to know. Freedom of information [about public records and proceedings]
is their just heritage. * * * Citizens * * * must have the legal right
to * * * investigate the conduct of [their] affairs.'[Citation omitted]"
{35} Measured by these
criteria, it is apparent that the construction apparently placed on
{*678} § 71-5-1, supra, by the majority is too
narrow. The list was a writing, representing the final recommendations of the
ENMU staff, coming into the hands of Respondents as public officers in
connection with their official duties. Certainly, any lingering doubt as to the
list being a public record is removed by the imprimatur of official action
placed on the list by Respondents by their approval of it.
{36} Respondents next
assert that, without a lawful purpose, no citizen has the right to examine
public records. This statement is obviously correct because of the provisions
of § 71-5-2, supra. But the answer to Respondents' contention is that they had
the burden of proving that the purpose of the Petitioners was unlawful, which
they failed to do. As to the burden of proof, we refer again to MacEwan:
"In balancing the interests referred to above, the
scales must reflect the fundamental right of a citizen to have access to the
public records as contrasted with the incidental right of the agency to be free
from unreasonable interference. [Citation omitted] The citizen's predominant
interest may be expressed in terms of the burden of proof which is applicable
in this class of cases; the burden is cast upon the agency to explain why the
records sought should not be furnished. Ultimately, of course, it is for the
courts to decide whether the explanation is reasonable and to weigh the
benefits accruing to the agency from nondisclosure against the harm which may
result to the public if such records are not made available for inspection."
{37} The Respondents do
not allege Petitioners' purpose to have been unlawful, nor was the court
requested to so find, although Respondents did request a finding to the effect
that Petitioners had failed to prove that their purpose was lawful, indicating
an erroneous theory as to the whereabouts of the burden of proof. In any case,
the court made no finding on this issue, and the findings which it did make are
supported by substantial evidence.
{38} A more difficult and
troublesome issue is presented by Respondents' claims, in substance and effect,
that disclosure of the list would be detrimental to the best interests of the
state and would unreasonably interfere with the business of government. They
point out that it was the custom to treat salary offers as confidential; that
various faculty members considered it an invasion of privacy to disclose
negotiations; that it would be injurious to the morale of the faculty and that
the negotiations concerning the employment contracts would be upset and
disturbed. These arguments are serious and persuasive.
{39} As stated in
MacEwan, there are qualifications to the public's right of inspection, and
circumstances may arise in which inspection can be justifiably withheld. For
example, inspection may be withheld if the information is sought for an
unlawful purpose, as is specifically provided in our statute. Even when the
purpose is lawful, if the information has been received in confidence or if it
is confidential and privileged, or if the disclosure would be detrimental to
the best interests of the state, the right of inspection may properly be
refused. The right of inspection cannot be exercised so as to unreasonably
interfere with the business of government, such as unduly disrupting an
investigatory process.
{40} Referring once more
to the majority opinion in MacEwan, it is said on this subject:
"In determining whether the records should be made
available for inspection in any particular instance, the court must balance the
interest of the citizen in knowing what the servants of government are doing
and the citizen's proprietary interest in public property, against the interest
of the public in having the business of government carried on efficiently and
without undue interference. The initial decision as to whether inspection will
be permitted must, of course, rest with the custodian of the records. And since
the justification for a refusal to permit inspection will depend upon the {*679} circumstances of the particular case,
we can offer no specific guide for that administrative decision."
{41} In the case at bar,
it is easy to visualize resulting mischief from disclosure and dissemination of
the list to no useful purpose other than to occupy the columns of the school
newspaper and to create another tempest in another teapot, an evolution
considered a useful purpose in itself in certain quarters. It was not, however,
incumbent upon Petitioners to demonstrate that any benefit from their actions
would accrue to the school, the public or the state.
{42} It is here, if we
understand the majority opinion aright, that we basically take our departure
from it. The majority holds that no "useful purpose" would be served
by disclosing preliminary negotiations; that only ultimate actions should be
accessible or that unreasonable interference with the business of government
might result. Although we are firm in our view that it was not the burden of
Petitioners to demonstrate a "useful purpose," we would concede the
other grounds to be debatable. However, in our opinion, the fundamental and
overriding principle to be served is preserving and protecting free access by
citizens, including representatives of the media, to information regarding the
conduct of governmental affairs, however saddening may be the results which
ofttimes occur in individual cases.
{43} Accordingly, when we
weigh and "* * * balance the interest of the citizen in knowing what the
servants of government are doing * * * against the interest of the public in
having the business of government carried on efficiently and without undue
interference," we cannot in good conscience say that the latter outweighs
the former; that Respondents have proven that such would be the case nor that
the trial court's findings of fact in favor of disclosure are not supported by
substantial evidence.
{44} The majority's
position seems to be grounded to a considerable extent on the oft cited and
quoted statement of Judge Yankwich from Northwestern University Law Review to
the effect that it is only documents which represent ultimate action which
should be available to the public for inspection as a matter of right and that
inspection of preliminary steps should be in the discretion of the agency.
Admittedly numerous cases so hold. We have taken the position that such a
narrow interpretation of our statutes imposes an unconscionable restriction,
but apart from questions of policy, we are by no means convinced that the
document of which inspection was here sought was preliminary.
{45} The matter presented
to Respondents for their consideration was what
offers should be made to
the faculty. The list in question constituted Dr. Meister's recommendations.
The action of the Respondents in approving the list represented final action on
that subject, and the offers were thereupon made and transmitted.
{46} It seems to us to
furnish no answer to say that the final contracts would be available for
inspection. Any particular contract actually made may or may not embody the
Respondents' first offer, and in fact offers may have been made which did not
result in contracts. The first offer is one subject and the final contracts
another.
{47} On the stated
grounds, we respectfully dissent.