By Phaedra Haywood
The Santa Fe New Mexican
SANTA FE, N.M. — The New Mexico Corrections Department can’t keep its use-of-force records from public view based on an internal policy deeming them confidential, the state Supreme Court has ruled.
The ruling references case law, confirming “the citizen’s right to know is the rule and secrecy is the exception.”
The state’s highest court issued the opinion earlier this month as part of a five-year legal battle initiated by the American Civil Liberties Union after the department refused to produce records related to its use of force against inmates at a state prison near Las Cruces.
The department argued its use-of-force policy and associated records, including inmate grievances, are confidential by policy to ensure the security of the state’s prisons.
“Detailed knowledge among the inmate population of use of force policies, strategies, protocols and procedures could potentially be used by inmates to undermine NMCD’s attempts to safely de-escalate and end violent behavior,” the department argued in court filings.
But the high court rejected that argument in an ruling lauded by open government advocates.
“The Department can’t create its own exception to the open records law in the absence of a clear legislative delegation of authority to do so. [The Department] must instead appeal to the Legislature if it believes that its prison safety concerns support an exemption for these records,” Justice Michael E. Vigil wrote in the unanimous June 15 opinion.
The department’s own policy isn’t a valid basis for withholding records under a catchall “as otherwise provided by law” exception to the state Inspection of Public Records Act, because it wasn’t properly put into effect and is not based on law, according to the ruling.
Information about the mistreatment and abuse of New Mexico inmates is “exactly the type of public information [the Inspection of Records Act] contemplates must be disclosed to the public in order to hold its government accountable,” the opinion says.
Attorney Nick Davis, who represented plaintiffs ACLU of New Mexico in the case, called the decision “well-wrought” and said it establishes legal clarity going forward.
“We are still reviewing how the ruling will affect the agency moving forward. We won’t be commenting beyond that,” Corrections Department spokesperson Brittany Roembach wrote in an email Thursday.
Asked Friday for a copy of the policy the court has deemed public record, Roembach asked a reporter to circle back next week saying in an email that everyone was out of office for the Juneteenth holiday.
Lengthy legal battle
The case that led to the ruling dates back to 2019, when the American Civil Liberties Union of New Mexico requested Corrections Department records regarding the violent use of force against inmates at Southern New Mexico Correctional facility, a medium security prison near Las Cruces.
The request — prompted by complaints from inmates — sought records regarding “institutional use of force, restraints, and/or chemical agents (e.g., pepper spray or other chemicals)” or other methods “used to discipline, restrain, subdue, or otherwise exert control over any person in [the prison’s] custody” for a four-month period, and the names of corrections officers involved.
The New Mexico Corrections Department refused to produce the records, citing the “as otherwise provided by law” exception to the state Inspection of Records Act and an internal policy designating the policy as confidential as the basis for the denial.
ACLU-NM challenged the denial in First Judicial District Court in 2020.
Chief Judge Bryan Biedscheid ordered the department to turn over some of the records but ruled the state could withhold portions “clearly shown to be necessary for administration of the Corrections Act.”
The department and the advocacy group both appealed to the Court of Appeals. The department argued it shouldn’t have to produce any of the records and ACLU-NM argued the department should have to produce them all.
The policy — a 36-page manual that governs everything from “diffusing inter-inmate violence, handling escape attempts, disrupting prison riots, and ensuring that inmates do not discover the locations of weapons” — and associated records, had to be kept secret to ensure the security of the state’s prisons, the agency argued.
“If inmates were to acquire information about the tactics and weapons that could be used against them, inmates might use that information to “develop and utilize countermeasures which would put prison employees and officials at grave danger,” the agency wrote in court filings.
The agency argued that “enabling statues” that authorized the Secretary of Corrections to create regulations needed to run the prisons and enforce those regulations granted the department authority to create the use-of-force policy, deem it confidential and withhold records under the catchall exception to the state’s transparency law.
But ACLU-NM — and the Foundation for Open Government , which filed an amicus brief in the case — disagreed, arguing that for the purposes of withholding records “as otherwise provided by law” the policy must be based on a law and formally created in a process that includes public comment, which it wasn’t.
For example, Social Security numbers and dates of birth must be redacted from public documents in keeping with the Non-Disclosure of Personal Information Act, Davis said Thursday.
The Court of Appeals agreed, affirming Biedscheid’s ruling as to the release of some of the records, and reversing his order allowing the Corrections Department to withhold others.
Retired Judge Michael D. Bustamante, who was appointed to the panel that reviewed the case, in a May 31, 2024 , opinion dismissed some of the department’s arguments and said case law cited in the case was irrelevant and akin to mixing “watermelons and rutabagas.”
The New Mexico Corrections Department asked the state Supreme Court to review the Court of Appeals ruling in July 2024 , resulting in last week’s opinion affirming the lower court’s take.
Going forward
The Supreme Court decision now sends the case back to the state District Court ordering that “the requested records be made available for inspection to the extent that they are not exempt under another law or IPRA exception.”
The state will be responsible for paying ACLU-NM’s legal costs associated litigating the two appeals, Davis confirmed. Those costs haven’t been calculated yet, but will likely be “more than $100,000” he said.
A spokesperson for the state Risk Management Division declined to say how much public money has been spent on the case so far, writing in an email that “as the matter is still in litigation, the requested information is not subject to disclosure at this time.”
Court records show attorney Scott Hatcher of Cuddy & McCarthy has represented the state during much of the case.
The state signed a contract with the firm in February which authorizes the firm to bill the state up to $1 million by its end date in June 2028 , according to records previously obtained from Risk Management.
Foundation for Open Government general counsel Amanda Lavin called the opinion “a strong statement on the importance of government transparency” that “couldn’t have come at a better time.”
“We have an agency who’s responsible for running a huge state prison system trying to hide its policies on how they treat inmates and there is no reasons why that information should be kept secret,” Lavin said in a phone interview Friday.
“It’s an especially important decision in time where we see government agencies looking for more and more ways to try and prevent having to disclose public records, and attempts at rewriting the [Inspection of Public Records Act].” she said. “... It is heartening to see the Supreme Court reaffirming the public’s right to access knowledge and helping direct agencies to the guidelines of what their obligations are in the context of the law and the citizens’ right to know.”
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