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Albuquerque Journal and KOB-TV, LLC v. Board of Education of Albuquerque Public Schools

Court of Appeals of New Mexico

November 13, 2018

ALBUQUERQUE JOURNAL and KOB-TV, LLC, Plaintiffs-Appellees,
v.
BOARD OF EDUCATION OF ALBUQUERQUE PUBLIC SCHOOLS, and RIGO CHAVEZ, in his capacity as custodian of records of Board of Education for Albuquerque Public Schools, Defendants, and MAUREEN SANDERS, Witness-Appellant.

          APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Nancy J. Franchini, District Judge

          Peifer, Hanson & Mullins, P.A. Charles R. Peifer Gregory P. Williams Albuquerque, NM for Appellee Albuquerque Journal.

          Foster Rieder & Jackson, P.C. Geoffrey D. Rieder Albuquerque, NM for Appellee KOB-TV, LLC.

          Ortiz & Zamora, Attorneys at Law, LLC Tony F. Ortiz Santa Fe, NM for Defendants.

          Sanders & Westbrook, PC Maureen A. Sanders Albuquerque, NM Witness-Appellant.

          Brant & Hunt, Attorneys John M. Brant Albuquerque, NM for Witness-Appellant.

          OPINION

          J. MILES HANISEE, Judge.

         {¶1} Non-party Appellant Maureen Sanders appeals the district court's discovery order requiring her to answer Plaintiffs' deposition questions regarding, and to produce notes she took during, conversations that she claims are privileged under either the Open Meetings Act (OMA), NMSA 1978 §§10-15-1 to -4 (1974, as amended through 2013), or Rule 11-503(B)(3) NMRA's attorney-client privilege. Concluding that the district court (1) properly determined that there exists no OMA privilege in New Mexico, and (2) did not abuse its discretion in determining that Sanders failed to meet her burden of establishing the applicability of the attorney-client privilege, we affirm.

         BACKGROUND

         The Historical Facts Underpinning the Underlying Case

         {¶2} The underlying case between two media outlets-the Albuquerque Journal and KOB-TV, LLC (collectively, Plaintiffs)-and the Albuquerque Public Schools (APS) Board of Education (the Board) and APS's records custodian Rigo Chavez (collectively, Defendants) is an enforcement action under the New Mexico Inspection of Public Records Act (IPRA), NMSA 1978, §§ 14-2-1 to -12 (1947, as amended through 2018) (the IPRA action). In the IPRA action, Plaintiffs seek to enforce their right to inspect public records that Defendants have withheld from inspection based on claims that those records are exempt from inspection.

         {¶3} The IPRA action was borne of the events surrounding and immediately preceding the abrupt resignation of Winston Brooks from his position as APS Superintendent on August 15, 2014-just two days after the start of the 2014-2015 school year-and the $350, 000 buyout of Brooks' contract that the Board approved as part of Brooks' Resignation and Settlement Agreement (the Settlement Agreement). On August 11, 2014, the Board met in a closed session to discuss a report prepared by attorney Agnes Padilla (the Padilla Report, or Report) at the request of Board President Analee Maestas. The Report was commissioned after Maestas and Board member Martin Esquivel became aware of "misconduct allegations involving [Brooks]" and what they later described as the possibility of litigation against APS resulting therefrom. The closed meeting was convened for the purpose of "discuss[ing] a limited personnel matter regarding [Brooks'] performance, evaluation, improvement plan, reports or concerns received by the president of the [B]oard or [members of the] Board of Education related to [Brooks], [Brooks'] contract, and possible disciplinary action."

         {¶4} During the closed meeting, Brooks and his attorney Maureen Sanders waited in a room separate from where the Board was meeting with its attorney, Tony Ortiz. More than once during the closed meeting, Ortiz left the Board to speak with Brooks and Sanders. Four days later, the Board and Brooks entered into the Settlement Agreement. Included as part of the Settlement Agreement was a reference letter for Brooks signed by Maestas and containing a positive review of Brooks' tenure as APS Superintendent, noting the Board's appreciation for his service, and "wish[ing] him well in his future endeavors." The Settlement Agreement provided that APS "will maintain [the] reference letter for Brooks in his personnel file" and "[i]f contacted by anyone seeking references for Brooks . . . [the letter] will be the only official reference provided by [APS]." It further provided that APS "shall maintain . . . the [Padilla R]eport... in a file separate from Brooks' personnel file, and it shall not be released to anyone, including potential future employers in response to a request for Brooks' personnel file." The Settlement Agreement contained no discussion of the reasons underlying the decision to prematurely terminate Brooks' contract with APS and provided only that "[n]othing in this [a]greement or in its execution admits wrongdoing of any kind by either party" and that the agreement was "mutually entered for the benefit of each party."

         Plaintiffs' IPRA Requests and Subsequent Enforcement Action

         {¶5} Between August 7 and September 3, 2014, Plaintiffs made a combined seven written requests of APS to inspect, among other public records, the Padilla Report and "documents referencing any complaints or allegations of misconduct regarding ... Brooks." Defendants provided for inspection of certain requested records, denied the existence of any responsive records to other requests, and denied certain requests based on claimed exemptions under IPRA. Plaintiffs thereafter filed the IPRA action, alleging that "Defendants have failed to satisfy their burden of showing that the documents that Plaintiffs[] requested were completely exempt from disclosure under any of the exceptions enumerated in Section 14-2-1." In defending against the IPRA action, Defendants argued that the records withheld, including the Padilla Report, are protected by (1) the attorney-client privilege, (2) the attorney work-product doctrine, and/or (3) IPRA's exception for "letters or memoranda that are matters of opinion in personnel files." See § 14-2-1(A)(3), (6), (8).

         Plaintiffs' Attempt to Prove Waiver of Privilege as to the Padilla Report Through Sanders

         {¶6} During the course of litigating the IPRA action, Plaintiffs were allowed to depose Padilla, Maestas, and Esquivel in order to adduce evidence relevant to the central issue of Defendants' claim that the Padilla Report is attorney-client privileged. Based on information learned in those depositions indicating that either the Padilla Report itself or its substance may have been disclosed to third parties, including possibly Sanders, Plaintiffs subpoenaed Sanders to produce "[a]ll documents, records, or things reflecting or recording any communications from [APS] or any APS representative, agent or attorney concerning any complaints or allegations of misconduct regarding Winston Brooks or [his wife] Ann Brooks made to APS or any member of the APS Board . . . after January 1, 2014." Sanders objected to the subpoena based in relevant part on a claim of attorney-client privilege. In her objection, Sanders explained that "[t]he only documents responsive to the subpoena are notes [she] made ... at a meeting she attended with Tony Ortiz . . . and Winston Brooks ... on August 11, 2014." She further explained, "[t]here are four pages of notes from that meeting and two pages might be viewed as responsive to the [s]ubpoena."

         {¶7} Plaintiffs also sought to depose Sanders to determine if conversations she had with various APS attorneys-particularly, her conversations with Ortiz on August 11 during the closed meeting-effected a waiver of the attorney-client privilege asserted by Defendants as to the Padilla Report. At her deposition, Sanders testified that she "represents Brooks and his wife] in matters that are related to . . . the employment and termination of employment of Winston Brooks" as superintendent of APS. She acknowledged that she had at least one conversation with APS attorney Art Melendres-whom she described as Brooks' attorney "during the time that he was [Superintendent" and continuing "after his employment ended in several matters that were pending"-at some point before the August 11 Board meeting, though she refused to describe the conversation based on a claim of attorney-client privilege. Regarding what occurred on August 11, Sanders explained that she accompanied Brooks to the Board meeting because "there was an agenda item involving . . . Superintendent Brooks' employment matters." She further explained that she and Brooks were asked to "sit in a room next to the boardroom" and that on more than one occasion, Ortiz left the boardroom and came to speak with her and Brooks. Sanders could not recall exactly how many times Ortiz came to speak with them during the meeting.

         {¶8} Sanders declined to answer Plaintiffs' questions regarding the conversations she had with Melendres and Ortiz, including whether Ortiz had described to her any portion of the Padilla Report, which she stated she neither received a copy of nor reviewed in full or in part. Specifically, she refused to answer the following questions:

• "What do you remember about [the] conversation [with Art Melendres]?"
• "When you were talking with Tony Ortiz at the time of the Board meeting, on or about August the 11th, . . . did you discuss a report or an investigation ...

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