June 25, 2010 – The Republican Party of New Mexico and Lyn Ott, Individually and in her capacity as Help America Vote Act (HAVA), Director for the Republican Party of New Mexico v. New Mexico Taxation and Revenue Department, Motor Vehicle Division, and Luis Carrasco, custodian of records for the New Mexico Taxation and Revenue Department, Motor Vehicle Division, No. 28,292

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: 	June 25, 2010
NO. 28,292
THE REPUBLICAN PARTY OF NEW MEXICO,
and LYN OTT, Individually and in her capacity as
Help America Vote Act (HAVA), Director for the
Republican Party of New Mexico,
Plaintiffs-Appellants,
v.
NEW MEXICO TAXATION AND REVENUE
DEPARTMENT, MOTOR VEHICLE DIVISION,
and LUIS CARRASCO, custodian of records for
the New Mexico Taxation and Revenue Department,
Motor Vehicles Division,
Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Valerie A. Huling and Nan G. Nash, District Judges
Bowles and Crow
Jason Bowles
B.J. Crow
Albuquerque, NM
Hunter Law Firm

Colin Hunter
Albuquerque, NM
for Appellants
Long, Pound & Komer, P.A.
Mark T. Baker
Santa Fe, NM
for Appellees

OPINION
CASTILLO, Judge.
{1} 	Plaintiffs, the Republican Party of New Mexico and Lyn Ott, individually and
as director of the Help America Vote Act, appeal from a two-part order granting
summary judgment in favor of Defendants, the New Mexico Taxation and Revenue
Department (T&RD), the Motor Vehicle Division (MVD) of the T&RD, and Luis
Carasco as custodian of public records for the T&RD (together referred to as “the
State”). Plaintiffs requested information from the State pursuant to the Inspection of
Public Records Act (IPRA), NMSA 1978, Sections 14-2-1 to -12 (1947, as amended
through 2009). The State did provide records in response to the IPRA request, but
relying on exceptions to IPRA and privilege, the State redacted much of the
information in the documents provided. 	Plaintiffs filed suit challenging these
redactions. The parties filed cross motions for summary judgment. The district court
concluded that the redactions were appropriate and granted summary judgment in
favor of the State. Plaintiffs now appeal.
{2} 	The public policy of New Mexico entitles “all persons . . . to the greatest
possible information regarding the affairs of government and the official acts of public
officers and employees.” Section 14-2-5. Transparency in government is paramount.
However, not all information is subject to public inspection, and there are exceptions

2
to the general proposition. 	See, e.g., § 14-2-1(A) (listing twelve exceptions to the
public’s right to inspect public records); City of Farmington v. The Daily Times, 2009-
NMCA-057, ¶ 8, 146 N.M. 349, 210 P.3d 246 (describing the non-statutory exception
to disclosure referred to as the “rule of reason”). 	In the case before us, the State
asserted three exceptions: non-disclosure as required by the federal and state statutes
limiting disclosure of motor vehicle records, executive privilege, and attorney-client
privilege. After carefully reviewing the record and the arguments of the parties, we
affirm the district court.
I. 	BACKGROUND
{3} 	This case arose as a result of an article by the Associated Press (AP) wherein
it was reported that New Mexico Governor Bill Richardson had proposed new
regulations that required undocumented aliens to provide additional forms of
identification to procure New Mexico drivers’ licenses. 	According to the article,
T&RD estimated that nearly 27,000 undocumented aliens had acquired drivers’
licenses under the then existing regulations which required undocumented aliens to
present only one form of identification—either a passport, federal individual tax
identification number, or consular identification card. The article also explained that
the Richardson administration had become concerned that some of those licenses
might have been issued to individuals who submitted documents of questionable

3
authenticity and, as a result, the administration directed the MVD to perform an audit
to evaluate that concern. On July 25, 2006, only a few months after publication of the
AP article, Plaintiffs, wanting to “research whether undocumented aliens were voting
in federal, state, and local elections in New Mexico,” requested the following
categories of information from the State pursuant to IPRA:
1. 	All lists, compilations, and summaries thereof of
drivers’ licenses that have been issued to individuals who
are not citizens or legal residents of the United States
pursuant to [NMSA 1978,] § 18-19-5.12(B) [sic] [Request
#1]; and
2. 	All 	memoranda, 	notes, 	reports, 	electronic 	mail
messages, or other documents that identify or describe the
number of drivers’ licenses that have been issued to
individuals who are not citizens or legal residents of the
United States pursuant to [NMSA 1978,] § 18-19-5.12(B)
[sic][.] [Request #2]
As an alternative to number [two] . . . you may produce the following:
All 	documents 	used 	as 	the 	basis 	for 	the 	[T&RD’s]
statement [in the AP article] that . . . “27,000 immigrants
have obtained licenses” . . . [Alternative to Request #2]; and
3. 	All documents discussing, relating to, or created in
response to instructions from the governor to audit records
as described in the AP article[.] [Request #3]
{4} 	The State provided Plaintiffs with 150 pages of records which consisted of e-
mails between the Governor’s office and the T&RD, e-mails between the T&RD and
the MVD, and spreadsheets produced by the MVD. However, a great portion of the

4
information within those documents was redacted. MVD explained to Plaintiffs that
the redactions were legally necessary and cited the following grounds for this claim:
(1) Section 14-2-1(A)(12), an exception to the right to request public documents under
IPRA; (2) the New Mexico Driver Privacy Protection Act (NMDPPA), NMSA 1978,
Section 66-2-7.1 (2007); (3) Rule 11-503 NMRA, attorney-client privilege; and (4)
executive privilege.
{5} 	Unsatisfied with the State’s response, Plaintiffs filed suit. Plaintiffs sought an
order compelling the State to produce copies of the documents without the redactions
together with any other documents pertinent to their request. 	Cross-motions for
summary judgment followed. The district court entered a partial ruling on the parties’
cross-motions concluding that the federal Drivers Privacy Protection Act (DPPA) 18
U.S.C. §§ 2721 to -25 (1994, as amended through 2000), and the NMDPPA require
the State to maintain the confidentiality of drivers’ personal information and, thus, the
State appropriately redacted personal information from the spreadsheets provided to
Plaintiffs. Accordingly, the district court granted summary judgment in the State’s
favor with respect to this aspect of Plaintiffs’ claim. 	As to the remaining
redactions—those made pursuant to executive and attorney-client privileges—the
district court reserved decision pending an in camera review of the communications
without redactions.

5
{6} 	After the in camera review, the district court granted summary judgment to the
State with respect to the remainder of Plaintiffs’ claims. Plaintiffs filed a motion for
reconsideration which was subsequently denied. This appeal followed.
II. 	DISCUSSION
{7} 	On appeal, Plaintiffs take issue with the district court’s conclusions that (1) the
State properly redacted personal drivers’ information from the spreadsheets, (2) the
redactions carried out pursuant to executive privilege were proper, and (3) the
redactions carried out pursuant to attorney-client privilege were proper. We begin
with the applicable standard of review and then address Plaintiffs’ arguments in turn.
A. 	Standard of Review
{8} 	The issues on appeal require us to interpret provisions of the DPPA and
NMDPPA. For issues of statutory construction, our standard of review is de novo.
Bell v. Estate of Bell, 2008-NMCA-045, ¶ 11, 143 N.M. 716, 181 P.3d 708, cert.
quashed, 2008-NMCERT-011, 143 N.M. 532, 202 P.2d 125. We are also required to
review the district court’s decisions regarding the applicability and construction of the
attorney-client and executive privileges. 	The district court’s construction of those
privileges is a matter of law which is also subject to de novo review. Public Serv. Co.
of N.M. v. Lyons, 2000-NMCA-077, ¶ 10, 129 N.M. 487, 10 P.3d 166.
{9} 	Plaintiffs appeal from the district court’s orders in favor of the State on the

6
parties’ cross-motions for summary judgment. “Summary judgment is appropriate
where there are no genuine issues of material fact and the movant is entitled to
judgment 	as 	a 	matter 	of 	law.” 	Weise 	v. 	Wash. 	Tru 	Solutions, 	L.L.C.,
2008-NMCA-121, ¶ 2, 144 N.M. 867, 192 P.3d 1244 (internal quotation marks and
citation omitted). “[W]here the parties agree to have the [district] court decide a case
on cross-motions for summary judgment and where neither party claims that disputed
facts exist, this Court will review the case as presented by the parties and decide it one
way or the other.” Farmington Police Officers Ass’n Commc’n Workers of Am. Local
7911 v. City of Farmington, 2006-NMCA-077, ¶ 33, 139 N.M. 750, 137 P.3d 1204
(Pickard, J., specially concurring in part and dissenting in part).
B. 	Redaction of Personal Driver’s Information
{10} 	Plaintiffs 	contend 	that 	the 	State 	improperly 	redacted 	personal 	drivers’
information from the materials provided in response to Plaintiffs’ IPRA Request #1
and Alternative to Request #2. IPRA provides that every citizen of this state has a
right to inspect any public records of this state except as otherwise provided by law.
Section 14-2-1(A)(12). The State relies on an exception set forth in state and federal
statutes. 	See The Daily Times, 2009-NMCA-057, ¶ 11 (holding that the language
“[except] as otherwise provided by law” has generally been interpreted as referring
to exceptions contained in other statutes (internal quotation marks and citation

7
omitted)). 	According to the State, it was required to redact personal driver’s
information under the terms of the DPPA and the NMDPPA. Both statutes generally
restrict the disclosure of personal information in a driver’s motor vehicle record
without the driver’s affirmative consent unless certain specified exceptions to the
prohibition apply. See 18 U.S.C. § 2721(a)(1) (stating that “[a] [s]tate department of
motor vehicles, and any officer, employee, or contractor thereof, shall not knowingly
disclose or otherwise make available to any person or entity: . . . personal information
. . . about any individual obtained by the department in connection with a motor
vehicle record”); 18 U.S.C. § 2721(b) (listing exceptions); § 66-2-7.1(A) (stating that
“[i]t is unlawful for any department or bureau employee or contractor . . . to disclose
to any person other than another employee of the department or bureau any personal
information about an individual obtained by the department or bureau in connection
with a driver’s license or permit . . . [except as provided in enumerated exceptions (1)
through (11)])”.
{11} 	The DPPA is a reflection of “the ongoing tug-of-war between the public’s right
to know and individual privacy interests.” 	Maureen Maginnis, Maintaining the
Privacy of Personal Information: The DPPA and the Right of Privacy, 51 S.C. L.
Rev. 807, 808 (2000). Before passage of the DPPA, the majority of states allowed
almost total public access to personal information in motor vehicle records. Oliver J.

8
Kim, Note, The Driver’s Privacy Protection Act: 	On the Fast Track to National
Harmony or Commercial Chaos?, 84 Minn. L. Rev. 223, 243 (1999). 	A major
impetus behind passage of the legislation was the growing concern about crimes
committed by individuals who used motor vehicle records to identify and locate
victims. Deborah F. Buchman, Annotation, Validity, Construction, and Application
of Federal Driver’s Privacy Protection Act, 18 U.S.C.A. §§ 2721 to 2725, 183 A.L.R.
Fed. 37, § 2 (2003). One highly publicized case involved actress Rebecca Schaeffer,
who became a victim in 1989 when she was murdered outside her apartment by a
stalker who obtained her unlisted address from the California Department of Motor
Vehicles. Maginnis, supra, at 809.
{12} 	Congress was also concerned about what had become a common practice in
many states: the sale of information in motor vehicle records for marketing purposes.
This practice inundated citizens’ mail boxes across the country with junk mail and
unwanted solicitations. 	183 A.L.R. Fed. 37, § 2. 	Passage of the DPPA in 1994
regulated the disclosure and resale of motor vehicle records, and this prompted a
number of constitutional challenges to the statute. See Thomas H. Odom & Gregory
S. Feder, Challenging the Federal Driver’s Privacy Protection Act: The Next Step in
Developing a Jurisprudence of Process-Oriented Federalism Under the Tenth
Amendment, 53 U. Miami L. Rev. 71, 73 (1998). 	The issues were answered in a

9
unanimous opinion of the United States Supreme Court in Reno v. Condon, 528 U.S.
141, 150-51 (2000), which held that the DPPA did not run afoul of the principles of
federalism and that the statute was a valid exercise of congressional authority under
the Commerce Clause. As previously discussed, the NMDPPA contains restrictions
and exceptions similar to those in the DPPA.
{13} 	The State’s position is that the information redacted from the spreadsheets
undisputably qualifies as personal information protected from disclosure under both
the DPPA and the NMDPPA. The State redacted two types of information: (1) the
names, driver’s license numbers, and addresses of drivers who obtained their licenses
with proof of identification other than a social security number and (2) individual tax
identification numbers. 	Drivers’ names, license numbers, and addresses are
specifically designated by these statutes as personal information. 	See 18 U.S.C. §
2725(3) (defining “personal information” under the DPPA as “information that
identifies an individual, including an individual’s photograph, social security number,
driver identification number, name, address (but not the 5-digit zip code), telephone
number, and medical or disability information”); NMSA 1978, § 66-1-4.14(F) (1999)
(defining “personal information” under the NMDPPA as “information that identifies
an individual, including an individual’s photograph, social security number, driver
identification number, name, address other than zip code, telephone number and

10
medical or disability information”). Although individual tax identification numbers
are not specifically listed, they are similar to social security numbers and meet the
definition of personal information because they provide identifying information. We
agree with the State that the information redacted from the spreadsheets is personal
information governed by the DPPA and the NMDPPA. This, however, does not end
our inquiry.
{14} 	According to Plaintiffs, their request was based on one of the stated exceptions
to the disclosure prohibitions in the DPPA and the NMDPPA, specifically the
exception that allows disclosure of personal driver’s information for research
activities. 	See 18 U.S.C. § 2721(b)(5) (“Personal information . . . [may] be
disclosed . . . [f]or use in research activities, and for use in producing statistical
reports, so long as the personal information is not published, redisclosed, or used to
contact individuals.”); § 66-2-7.1(A)(4) (“It is unlawful . . . to disclose . . . any
personal information . . . except . . . for use in research activities and for use in
producing statistical reports, so long as the personal information is not published,
redisclosed or used to contact individuals[.]”). 	We observe that Plaintiffs did not
initially indicate that their request was based on this exception, and they did not assert
this as a basis for disclosure until after filing their complaint. More importantly to the
evaluation of this issue, however, is Plaintiffs’ failure to provide us with any citation

11
or guidance to assist in defining what the term “research” means in the context of the
DPPA and the NMDPPA. 	Nor have Plaintiffs provided any facts upon which the
exception could be based. 	This Court has no duty to review an argument that is
unclear 	or 	inadequately 	developed. 	See 	Headley 	v. 	Morgan 	Mgmt. 	Corp.,
2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (stating that we will not review
unclear or undeveloped arguments).
{15} 	Even if we were to agree that the request was for purposes of research, there are
limitations on the use of the information once obtained, and this undercuts Plaintiffs’
argument. The research exception explicitly prohibits the redisclosure or publication
of any personal driver’s information received pursuant to the research exception and,
further, prohibits the use of that information to contact the individuals from whom the
information was obtained. 	See 18 U.S.C. § 2721(b)(5) (“Personal information . . .
[may] be disclosed . . . [f]or use in research activities . . . so long as the personal
information is not published, redisclosed, or used to contact individuals.”); § 66-2-
7.1(A)(4) (same). 	To achieve the stated objective underlying their request, i.e., to
challenge voter eligibility pursuant to NMSA 1978, Section 1-4-22 (1995), Plaintiffs
would be required to disclose or publish the personal driver’s information they
receive. Under Section 1-4-22, only specific parties are permitted to advance a claim
challenging voter eligibility. See § 1-4-22(A) (specifying that only “the secretary of

12
state, the county chairman of any major political party or any twenty petitioners who
are voters of the county may file and present to the district court a verified petition
alleging either on personal knowledge or on information and belief that certain
persons registered, named in the petition, are not qualified electors in the precincts
named in the petition”). 	To establish voter fraud, Plaintiffs would be required to
disclose the personal information obtained from the motor vehicle records to one of
these parties. Furthermore, in submitting their claim to the district court, Plaintiffs
would necessarily disclose the information a second time, this time to the district
court. Finally, it seems inevitable that Plaintiffs’ attempts to verify voter eligibility
would undoubtedly precipitate a process through which that personal information
would be used to contact the individuals from whom that information was obtained.
The research exception cannot be used under these circumstances.
{16} 	In their final argument on this issue, Plaintiffs contend that because the State
makes driver’s personal information available to third-party vendors, it is required to
make the information available to them. Again, Plaintiffs have failed to provide any
authority to support this argument. 	See State v. King, 2007-NMCA-130, ¶ 17, 142
N.M. 699, 168 P.3d 1123 (refusing to consider arguments unsupported by authority
or analysis). 	We observe that the DPPA and the NMDPPA list a number of
exceptions, and it is possible that a third-party vendor would be entitled to personal

13
information under one of the exceptions. Plaintiffs do not develop this issue, nor is
it before this Court. What is before this Court is whether, based on the record and
arguments before us, the State properly redacted personal information from lists of
motor vehicle records. 	In this regard, we reject Plaintiffs’ assertion that they are
entitled to the unredacted information and hold that the district court did not err in
granting summary judgment in favor of the State with respect to this portion of
Plaintiffs’ request.
C. 	Redactions Pursuant to Executive Privilege
{17} 	In their second issue, Plaintiffs contend that the district court erred when it
determined 	that 	the 	State 	was 	entitled 	to 	redact 	and 	withhold 	requested
communications on the grounds of executive privilege. Before we address Plaintiffs
specific arguments, we provide a short history of executive privilege and summarize
what it involves under New Mexico law.
1. 	Executive Privilege
{18} 	“Since the beginnings of our nation, executive officials have claimed a variety
of privileges to resist disclosure of information the confidentiality of which they felt
was crucial to fulfillment of the unique role and responsibilities of the executive
branch of our government.” In re Sealed Case, 121 F.3d 729, 736 (D.C. Cir. 1997).
Among the categories of executive privilege, two are primary: 	the most oft-cited

14
deliberative process privilege and the chief executive communications privilege.
Matthew W. Warnock, Comment, Stifling Gubernatorial Secrecy: 	Application of
Executive Privilege to State Executive Officials, 35 Cap. U. L. Rev. 983, 985 (2007).
Although closely affiliated, the two privileges are distinct and have different scopes.
In re Sealed Case, 121 F.3d at 745. Both are “designed to protect executive branch
decision[]making, but one applies to decision[]making of executive officials generally,
the other specifically to decision[]making of the [executive].” Id.
2. 	Executive Privilege in New Mexico
{19} 	In State ex rel. Attorney General v. First Judicial District Court of New Mexico,
96 N.M. 254, 257-58, 629 P.2d 330, 333-34 (1981), the New Mexico Supreme Court
recognized executive privilege as a necessity for the successful functioning of an
independent executive branch of government. 	The “recognition of an executive
privilege is required by the Constitution of the State of New Mexico,” specifically
Article III, which provides for the separation of powers among the three branches of
government. 	First Judicial, 96 N.M. at 257, 629 P.2d at 333. 	The purpose of the
privilege is to
safeguard the decision[]making process of the government by fostering
candid expression of recommendations and advice and to protect this
process from disclosure. Executive personnel who fear or expect public
dissemination of their remarks may temper their comments because of
their concern for their own personal interests, safety, or reputation.

15
Id. at 258, 629 P.2d at 334.
{20} 	The privilege is not absolute. Id. Although the need for confidentiality among
the executive is worthy of protection, the court must determine whether the particular
circumstances of a case allow the imposition of the privilege. 	Id. 	This is done by
balancing the competing interests of the “public’s interest in preserving confidentiality
to promote intra-governmental candor with the individual’s need for disclosure of the
particular information sought.” Id.
3. 	Plaintiffs’ Arguments
{21} 	In their challenge to the district court’s decision, Plaintiffs make two arguments.
First, they claim that the State is prohibited from withholding information sought
through an IPRA request by claiming executive privilege. Plaintiffs also assert that
executive privilege is inapplicable on its merits. We address these arguments in turn.
a. 	Statutory Construction
{22} 	Plaintiffs rely on a canon of statutory construction known as expressio unius est
exclusio alterius—the inclusion of one thing implies the exclusion of another.
Plaintiffs contend that IPRA was “enacted” after First Judicial and that attorney-client
privilege was expressly included as an exception to disclosure, while 	executive
privilege was not. According to Plaintiffs, the omission of executive privilege as a
listed exception evidences the Legislature’s intent to exclude the privilege as a basis

16
for withholding documents requested under IPRA.
{23} 	First, Plaintiffs are incorrect that IPRA was enacted after First Judicial. IPRA
was first enacted in 1947 by 1947 N.M. Laws, Chapter 130, Section 1. First Judicial
was decided in 1981. The 1947 version of IPRA did not list either privilege as an
exemption. 	Id. 	IPRA was later recompiled as Sections 14-2-1 through -12 and
amended in 1973, 1981, 1993, and 1998. 	It was not until 1999 that IPRA was
amended to include attorney-client privilege as a specifically listed exemption. The
current version of IPRA continues to exempt documents subject to the attorney-client
privilege, and there is no specific mention of executive privilege. 	We evaluate
Plaintiffs’ argument in this context.
{24} 	We review statutory construction de novo. The Daily Times, 2009-NMCA-057,
¶ 6. In ascertaining legislative intent, we first look to the statute’s plain language, and
when the “statute’s language is clear and unambiguous, we give the statute its plain
and ordinary meaning and refrain from further interpretation.” Id. (internal quotation
marks and citation omitted). There are currently twelve statutory exceptions provided
within IPRA itself. See § 14-2-1(A)(1)-(12). We agree that attorney-client privilege
is a specific exemption and executive privilege is not, but the list of specific
exemptions is not exhaustive. The last exception excepts those public records that are
confidential “as otherwise provided by law,” Section 14-2-1(A)(12), and “has

17
generally been interpreted as referring to exceptions contained in other statutes and
properly promulgated regulations. 	The Daily Times, 2009-NMCA-057, ¶ 11.
In addition to the statutory exceptions, “our Supreme Court has recognized a
non-statutory exception to disclosure.” Id. ¶ 8. “This non-statutory exception, also
referred to as the ‘rule of reason,’ . . . is applicable . . . to claims of confidentiality
asserted for public records that do not fall into one of the statutory exceptions[.]” Id.
(internal quotation marks and citation omitted). Under this exception, a district court
is required “to balance the fundamental right of all citizens to have reasonable access
to public records against countervailing public policy considerations which favor
confidentiality and nondisclosure.” 	Id. (internal quotation marks and citation
omitted). The countervailing public policy underlying executive privilege can support
a determination in favor of confidentiality. Accordingly, we reject Plaintiffs expressio
unius argument. The fact that executive privilege is not listed as a specific exception
does not mean the Legislature has prohibited the assertion of the privilege as a basis
for protecting the confidentiality of certain documents requested under IPRA.
b. 	Applicability on its Merits
{25} 	Plaintiffs also argue that the privilege is inapplicable on its merits. Plaintiffs
rely on language in The Inspection of Public Records Act: A Compliance Guide for
New 	Mexico 	Public 	Officials 	and 	Citizens, 	p. 	22 	(6th 	ed. 	2009),

18
http://www.nmag.gov/pdf/AGO IPRA Guide 6th Ed.pdf: “The [executive] privilege
is not absolute and may not be used unless revelation of a particular document will
truly compromise the agency’s decision-making process, and thus outweighs the
public’s interest in disclosure.” 	We agree that the privilege is not absolute. 	First
Judicial, 96 N.M. at 258, 629 P.2d at 334. As to the burden, Plaintiffs argue that the
State did not meet its burden of showing that disclosure of the documents would truly
compromise the agency’s decision-making process because (1) the documents were
in the custody of the MVD, not the Governor’s office; (2) the communications were
between mid to low-level employees; and (3) none of the documents are part of the
internal policy-making processes of the Governor’s office. 	We observe that no
argument was raised below or on appeal regarding the difference, if any, between the
evaluation of the privilege in the context of discovery and in the context of an IPRA
request. Similarly, no argument was made that the district court failed to follow the
rule of reason in applying the privilege or that the privilege was improperly asserted.
Before we address Plaintiffs’ three points, we digress to review the district court’s
evaluation of the privilege.
{26} 	The district court followed the requirements regarding the assertion of executive
privilege in the context of discovery. The State had prepared a log of all documents
produced in response to the IPRA request. The log listed the type of document, the

19
reason produced, its authors, recipients, and subject, the date created, subject matter,
and the basis for the redactions made to the document. 	Executive privilege was
asserted as the basis for redactions to communications regarding: (1) New Mexico’s
negotiations with the Mexican government to obtain access to Matricula Consular
documents; (2) legal and policy discussions about New Mexico drivers who applied
for their licenses using documents whose authenticity had not been confirmed by the
T&RD; and (3) legal and policy discussions related to the audit process.
{27} 	At the hearing on the cross motions for summary judgment, the district court
listened to the arguments of the parties as to the operation of the privilege on the
documents indicated. 	The district court determined that the privilege had been
invoked; that Plaintiffs had shown that their interest in protecting the integrity of the
voting process constituted good cause for requesting the information; and that in order
to properly evaluate the privilege, it would reserve ruling whether the privilege
applied “pending an in camera review of the communications at issue.” Under the
“rule of reason,” the court is to “view, in camera, the information in the possession of
the custodian and make a determination regarding the competing public policies based
on that information.” The Daily Times, 2009-NMCA-057, ¶ 13.
{28} 	The State provided the district court with copies of the subject documents
without redactions. 	The district court determined that executive privilege exists

20
basically to “aid governmental decision[]making” and undertook the in camera review
to “determine whether or not there is good cause for disclosure.” The court stated that
it would be looking for anything that “would suggest . . . a compromise of the
integrity of our voting process” because that type of information is not privileged. The
record shows that the court explained that it would also evaluate each document to
determine if it was the document as claimed, if it was to a third party outside the
department, and if the description of the document was accurate. After performing the
in camera inspection, the district court issued findings determining that “[w]ith regard
to executive privilege, none of the documents reviewed contain information that
would suggest the voting process in this state has been compromised.” As a result,
the court granted the State’s cross-motion for summary judgment.
{29} 	We now turn to Plaintiffs’ points. 	Here, the documents redacted were
communications between executive personnel within the Office of the Governor, the
T&RD, and the MVD. 	Plaintiffs assert that the documents in question were not
entitled to protection because the documents were in the custody of the MVD—not
the Governor’s office. The T&RD is a cabinet department in the executive branch.
NMSA 1978, § 9-11-4 (2005). The MVD is a division of the T&RD. Section 9-11-
4(D). The communications were from employees of these executive departments. We
do not address the document custody issue because Plaintiffs have failed to cite

21
authority to support the proposition that custody of a document in one executive
agency as opposed to another affects the analysis. See King, 2007-NMCA-130, ¶ 17
(declining to consider arguments unsupported by authority).
{30} 	Plaintiffs also argue that the privilege cannot be extended to communications
other than those relevant to the internal policy-making processes of the Governor’s
office. 	In this regard, Plaintiffs rely on In re Sealed Case, 121 F.3d 729, for their
argument that the privilege only applies to “high level” members of the executive
branch, not to lower level employees. 	Further, Plaintiffs assert that they have not
located any case that “extends the privilege broadly to any employee within an
executive branch agency” as adopted by the district court in this case.
{31} 	First, we observe that Plaintiffs’ argument appears to be based on the executive
communications arm of executive privilege—the language relied on by Plaintiffs
refers to this arm of the privilege, not the deliberative process sub-category.
“‘[E]xecutive privilege’ is generally used to refer to a wide variety of evidentiary and
substantive privileges that courts accord the executive branch.” 	In re Sealed Case,
121 F.3d at 735 n.2. 	Two of the arms of the privilege are the executive
communications privilege and the deliberative process privilege. Russell L. Weaver
& James T.R. Jones, The Deliberative Process Privilege, 54 Mo. L. Rev. 279, 284-91
(1989); See Warnock, supra, at 984 (discussing the distinction between the two types

22
of executive privilege).
{32} 	In First Judicial, our Supreme Court described executive privilege in general
terms and relied on cases dealing with both categories of the privilege. United States
v. Nixon, 418 U.S. 683, 706, 712 (1974) (rejecting an absolute and unqualified
executive communications privilege and affirming the inspection of certain tape
recordings and documents relating to conversations between the President and his
aides and advisors), superseded by rule as stated in People v. Montoya, 753 P.2d 729
(Colo. 1988) (en banc); Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318,
324 (D.D.C. 1966) (dealing with “recommendations and deliberations comprising part
of a process by which governmental decisions and policies are formulated”), aff’d,
384 F.2d 979 (D.C. Cir. 1967). The subject documents in First Judicial consisted of
material obtained by the attorney general from corrections officers and other executive
department personnel relating to the 1980 Penitentiary Riot. First Judicial, 96 N.M.
at 258, 629 P.2d at 334. Although the public policy underpinnings of both types of
executive privilege are discussed in First Judicial, the type of privilege upon which
the case ultimately turned falls into the sub-category of the deliberative process
privilege. 	See, e.g., Michael N. Kennedy, Comment, Escaping The Fishbowl: 	A
Proposal To Fortify The Deliberative Process Privilege, 99 Nw. U. L. Rev. 1769,
1778 n.64 (2005) (listing New Mexico as a state that has created a deliberative process

23
privilege for state agencies). 	Consequently, Plaintiffs’ arguments do not go to the
type of privilege asserted in that case.
{33} 	Second, we question Plaintiffs’ legal premise. 	In evaluating documents
pertaining to White House counsel’s investigation of the Secretary of Agriculture, the
court in In re Sealed Case held that the executive communications privilege applied
to communications authored by White House counsel and other top presidential
advisers who had “broad and significant responsibility for investigating and
formulating the advice to be given the President on the particular matter to which the
communications relate.” 121 F.3d at 758. In addition, the court analyzed whether the
privilege applied to documents authored by a legal extern and to documents for which
no author was listed. Id. Although the court recognized that the legal extern “did not
exercise broad and significant responsibility for the . . . investigation, and therefore
the documents authored by the legal extern do not, on their own, qualify for the
presidential privilege,” it nevertheless determined that the privilege applied because
the documents authored by the extern were created at the request of the two associate
White House counsel who did have broad and significant responsibility for the
investigation and were received by them. 	Id. 	Along the same lines, the three
documents with no author indicated were solicited and received by staff with the
appropriate responsibility. Id. It becomes clear that the application of the privilege

24
does not turn solely on the job level of the person creating the document. 	Thus,
Plaintiffs’ argument is not supported by the authority they cite.
{34} 	We further conclude that the State met its burden that on balance, the interests
of the public in keeping the documents confidential outweigh the interests of the
Plaintiffs in having them disclosed. The State based its argument on the premise that
public disclosure of certain communications would chill the open exchange of
opinions and recommendations between government officials and that the privilege
is intended to protect the government’s decision-making process, its consultative
functions, and the quality of its decisions. 	The documents redacted relate to the
development of documents necessary for New Mexico’s negotiations with the
Mexican government regarding identification confirmation. 	They also include
discussions regarding how to deal with New Mexico drivers who applied for licenses
using documents the MVD was unable to confirm as well as discussions related to the
audit process. 	These materials were generated as part of the executive branch’s
development of policy concerning: 	(1) the future issuance of drivers’ licenses to
undocumented aliens; (2) how best to verify the documents provided to the MVD by
those aliens; and (3) how best to involve the Mexican government in that process in
the future. Accordingly, we conclude that the district court properly determined that
executive privilege was applicable in this case.

25
{35} 	Plaintiffs also complain that the district court’s broad application of the
executive privilege would render “virtually all communications and records generated
by New Mexico state agencies and departments subject to a claim of executive
privilege,” thus allowing these documents to be “[kept] secret from the public at the
sole discretion of that department or agency[] without any independent oversight or
review.” This is not the case. As occurred here, once the privilege is asserted, there
is a process to evaluate whether that assertion is proper under IPRA.
{36} 	In conclusion, we hold that the district court did not err in concluding that the
redactions carried out pursuant to executive privilege were proper. 	As described
above, the redacted information was properly withheld by the State and, thus, the State
is entitled to judgment as a matter of law on this issue.
D. 	Redactions Pursuant to Attorney-Client Privilege
{37} 	Section 14-2-1(A)(6) exempts from disclosure documents protected by the
attorney-client privilege. In its first argument as to this privilege, Plaintiffs claim that
it is inapplicable to the communications in question because “[a]n attorney for an
agency . . . is not also the personal attorney for each of the agencies employees” and
the communications in question “were sent in and among staff attorneys and
management, while some communication involved lower[-]level employees, for which
there is not a privilege.”

26
{38} 	Plaintiffs devote less than a full page of their brief-in-chief to these contentions,
fail to cite authority, and do not specify to which communications their arguments
refer. The argument is not adequately developed or supported. As previously stated,
we do not review unclear or inadequately developed arguments or arguments for
which no authority has been cited. 	See King, 2007-NMCA-130, ¶ 17 (refusing to
consider 	arguments 	unsupported 	by 	authority 	or 	analysis); 	Headley,
2005-NMCA-045, ¶ 15 (stating that we will not review unclear or undeveloped
arguments).
{39} 	We now turn to Plaintiffs’ second argument. They cite Rule 11-511 NMRA,
and Gingrich v. Sandia Corporation, 2007-NMCA-101, 142 N.M. 359, 165 P.3d
1135, as support for their assertion that “[the State] ha[s] waived any claim of
attorney-client privilege . . . by disclosing the information sought by the Plaintiffs to
the media and others.” Under Rule 11-511, the attorney-client privilege is waived
where the holder of the privilege “voluntarily discloses or consents to disclosure of
any significant part of the matter or communication.” 	As we demonstrate below,
Plaintiffs have not shown that any of the communications redacted pursuant to
attorney-client privilege were disclosed.
{40} 	The following is a brief and general description of the documents redacted
pursuant to attorney-client privilege and their content: discussions between general

27
counsel for the Governor’s office and executive branch personnel regarding a
proposed letter to officials in the Mexican government describing the policies
surrounding the issuance of drivers’ licenses in New Mexico; discussions between
executive branch officers and counsel for the T&RD related to a potential audit of
drivers who obtained their licenses by submitting an individual tax identification
number; discussions between counsel for the T&RD and MVD personnel reviewing
proposed drafts of letters to be sent to drivers who received New Mexico drivers’
licenses but whose documentation ultimately could not be verified; correspondence
between the MVD director and in-house counsel for the T&RD regarding specific
statutes and regulations governing the process under which an individual may obtain
a driver’s license in New Mexico; legal analysis performed by counsel for the T&RD
for the benefit of the directors of the MVD and T&RD; and communications directed
to the Deputy Chief Counsel for the Office of the Governor regarding the status of the
audit on drivers who obtained their licenses by submitting an individual tax
identification number. Plaintiffs have failed to direct us to any specific instance where
any of the redacted documents were disclosed. Accordingly, we conclude that the
district court did not err in concluding that the redactions made pursuant to attorney-
client privilege were proper.
CONCLUSION

28
{41} 	Based on the foregoing, we affirm the district court’s order of summary
judgment in this case.
{42} 	IT IS SO ORDERED.
________________________________
CELIA FOY CASTILLO, Judge
WE CONCUR:
__________________________________
CYNTHIA A. FRY, Chief Judge
__________________________________
MICHAEL D. BUSTAMANTE, Judge