New Mexico Supreme Court Holds Corrections Department Regulations Do Not Exempt Use-Of-Force Documents from Public Records Disclosure
by Matt Clarke
On June 15, 2026, the Supreme Court of New Mexico held that regulations promulgated by the New Mexico Corrections Department (CD) did not create an enforceable regulatory bar to the disclosure of public records under the New Mexico Inspection of Public Records Act (PRA), NMSA 1978, §§ 14-2-1 to -12.
The American Civil Liberties Union of New Mexico (ACLU) requested use of force records for the Southern New Mexico Correctional Facility as part of its investigation into prisoners’ complaints of excessive guard violence at the prison. The CD claimed those records were exempt from disclosure because CD policy deemed prisoner grievances “privileged” (Policy CD-150500(C)(8)), “strictly confidential” (Policy CD-150501(G)), and that its use-of-force policy should be kept from prisoners (Policy CD-130600). The CD’s attorney said use-of-force policy confidentiality is essential because the “perceived unpredictability of officers disincentivizes inmate violence.”
The ACLU filed a lawsuit in state court to enforce its request. The court ruled that the CD could withhold portions of the records if “clearly shown to be necessary for administration of the Corrections Act” (CA), NMSA 1978, §§ 33-1 to -9, including portions of its use-of-force policy. The ACLU appealed.
The Court of Appeals reversed after concluding that the it was error to apply the “clear necessity” standard to withhold portions of requested records. See: ACLU of NM v NM Corr. Dep’t, 556 P.3d 555 (N.M. App. 2024). The CD successfully petitioned the state Supreme Court for a writ of certiorari. The ACLU was represented by attorneys Nicholas T. Davis and Andrew Lantz of Davis Law in Albuquerque and ACLU attorneys Maria Martinez Sanchez and Leon F. Howard, III.
The Court noted that the PRA grants “[e]very person … a right to inspect public records” subject to several exceptions. In this case, the relevant exception is the “catch-all” exception for records that are exempt from inspection “as otherwise provided by law,” PRA § 14-2-1(N). It had previously held that the catch-all exception “includes statutory and regulatory bars to disclosure…,” in Pacheco v Hudson, 415 P.3d 505 (N.M. 2018).
The question then became whether CD policy qualified as a statutory or regulatory bar. To do so, it would have to be a “properly promulgated” administrative regulation which has “the force of law,” per City of Las Cruces v. Public Employment Labor Relations Board, 917 P.2d 971 (N.M. 1996). This meant it would have to be ‘”promulgated in accordance with the statutory mandate to carry out and effectuate the purpose of the applicable statute.”
In examining how CD policy was promulgated, the Court found that the CD policies were simply created by the Secretary of Corrections without notice to the public and a hearing at which public concerns are heard, the basic requirement a of formal promulgation of administrative regulations. Thus, the procedure was insufficiently formal for CD policy to create a bar to inspection.
The Court further held that the CD “did not have the authority to promulgate a regulation that is inconsistent with [the PRA] unless the Legislature has specifically delegated authority to the agency to formally promulgate regulations which limit the right of inspection” and the regulation is promulgated “using formal rulemaking procedures involving public notice and comment and a public hearing.” A general enabling statute, such as the CA, is too vague to provide such authority.
The Court abandoned the “rule of reason” in Republican Party v. N.M. Taxation and Revenue Dep’t, 283 P.3d 853 (N.M. 2012). Yet, applying that rule would also not have justified exemption from inspection. The decision of the Court of Appeals was affirmed and the case remanded. See: A.C.L.U. of N.M. v. N.M. Corr. Dep’t, 2026 N.M. LEXIS 100.
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