Dunn v. Brandt – Protective Orders Trump IPRA


On July 18, 2019, the New Mexico Court of Appeals filed its opinion in Dunn v. Brandt, a curious case under the New Mexico Inspection of Public Records Act.

The plaintiff, A. Blair Dunn, is a local attorney who has been pushing the boundaries of IPRA law over the last few years. Recently, he was the attorney behind the IPRA requests that lead to Pacheco v. Hudson, a 2018 New Mexico Supreme Court opinion holding that the judiciary can withhold public records on the basis of a judicial deliberative process privilege. Here, Mr. Dunn once again generates some interesting new IPRA caselaw, but this time as a party and pro se appellant.

According to the opinion, this case had its origins in a domestic relations matter in which Defendant Brandt was appointed as guardian ad litem for Mr. Dunn’s daughter. Dunn served discovery requests for certain communications of the guardian. Ms. Brandt, arguing that in her role as GAL she served as an arm of the court and did not have to disclose her work product, obtained a protective order.

Seizing on Brandt’s argument that she was part of the court, Mr. Dunn reframed his request as an IPRA request. The request was denied on a variety of grounds, and Dunn sued both Brandt and the Second Judicial District Court to enforce IPRA. The district court granted summary judgment in favor of itself and Ms. Brandt, and Mr. Dunn appealed.

In a summary judgment motion, a party sets forth what it claims are the undisputed facts, and argues that applying the law to those facts it should win the lawsuit. There are two ways to defeat such a motion: to dispute the facts, or to persuade the court that those facts are not enough to win under the law. In this case, the parties appear to have agreed on the facts; on appeal, Mr. Dunn argued only that the law did not permit the court to withhold the documents.

The court first dealt with the request for records in Ms. Brandt’s possession. It assumed, without deciding, that the responsive materials were in fact public records (one common ground for not producing items is that they do not meet IPRA’s definition of public record). Since Ms. Brandt was not employed by the Court, she was not directly subject to IPRA; however, third parties can be subject to IPRA if they meet the Toomey factors, which Mr. Dunn had argued were met here. The court appears to have also assumed this to be true without deciding.

With all that as background, the court reaches the new issue presented by this appeal: whether IPRA can trump the protective order. Holding that it cannot, the court affirmed:

[W]e discern nothing in IPRA’s plain language or in IPRA case law suggesting that our Legislature intended to require a governmental entity to disclose public records in defiance of a court order.

Dunn v. Brandt, ¶ 25

To hold otherwise would be to create serious separation of powers problems. The court carefully distinguished this case, in which a court order protected the records from disclosure, from Faber v. King, in which the court had merely stayed discovery (leaving IPRA available as an option).

As to records held by the court (as opposed to Ms. Brandt), the court of appeals concluded that those records were protected by the judicial deliberative privilege. Somewhat ironically, the court reaches this result by a straightforward application of Pacheco. In Pacheco, a case also brought by Mr. Dunn seeking court records, the New Mexico Supreme Court recognized a judicial deliberative privilege that applied to internal decision making communications of the court. The court of appeals easily concluded that communications between Ms. Brandt in her capacity as GAL and the district court were subject to that privilege, and could therefore be withheld.

In many ways this is not a surprising result. It would be surprising if parties could obtain attorney work product of court appointed GAL’s by the simple expedient of an IPRA request. But the case still contributes an important new rule to New Mexico IPRA law: a protective order is a legitimate reason for a state agency to withhold documents. In the future, state agencies may wish to obtain such orders, but plaintiffs will likely change their strategies to file the IPRA requests first. There is still plenty of room for development in this area of the law.

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