Attorney General Opinions and Advisory Letters
Decision Information
Citations - New Mexico Appellate Reports
Investment Co. v. Reese - cited by 31 documents
New Mexico Pharmaceutical Ass'n v. State - cited by 57 documents
State v. Ogden - cited by 230 documents
Investment Co. v. Reese - cited by 31 documents
New Mexico Pharmaceutical Ass'n v. State - cited by 57 documents
State v. Ogden - cited by 230 documents
Decision Content
STATE OF NEW MEXICO
OFFICE OF THE ATTORNEY GENERAL
HECTOR H. BALDERAS
ATTORNEY GENERAL
November 25, 2020
Raúl Torrez, Esq.
Second Judicial District Attorney
520 Lomas Blvd NW
Albuquerque, NM 87102-2147
Re: Opinion Request – Interpretation of Arrest Record Information Act
Dear District Attorney Torrez,
You have requested our opinion as to the proper interpretation of the Arrest Record Information
Act (hereinafter “ARIA”), NMSA 1978, Sections 29-10-1 to -8 (1975, as amended through 1999).
Specifically, you inquire as to the statute’s scope in the context of individuals accused but not
charged with a criminal offense. Based on our examination of the relevant statutory and case law
authorities, as well as the information available to us at this time, we conclude that ARIA’s
confidentiality provision is inapplicable to information about individuals who have been
personally charged with committing a crime and to those circumstances where no charges have
been filed at all. Rather, the confidentiality conferred by the statute is applicable to individuals
accused but not charged with a crime whose identifying information is contained in arrest record
information pertaining to other individuals who have been personally charged with committing a
crime.
Background
Your opinion request is framed in the context of two public records requests submitted to the
Office of the Second Judicial District Attorney (the “District Attorney’s Office”). The first of these
was a subpoena for records pertaining to a suspect who was investigated twice for possible criminal
violations. Neither of these investigations, however, resulted in an arrest or formal criminal charge.
The District Attorney’s Office objected to the subpoena for investigatory records on the basis of
ARIA, later explaining that its position was that “when an individual is neither arrested nor
charged, we do not release the files nor even confirm the identity of the suspected individual.”
The second records request at issue in your opinion request was made pursuant to the Inspection
of Public Records Act (“IPRA”), NMSA 1978, Sections 14-2-1 to -12 (1947, as amended through
2019). This records request sought, in relevant part, records containing information as to the alibi
of a criminal suspect who was arrested but never formally charged with committing a crime. The
District Attorney’s Office apparently relied on this information in dismissing the case against the
TOLL FREE 1-844-255-9210 TELEPHONE: (505)490-4060 FAX: (505)490-4883 www.nmag.gov
MAILING ADDRESS: P.O. DRAWER 1508 - SANTA FE, NEW MEXICO 87504-1508
STREET ADDRESS: 408 GALISTEO STREET - SANTA FE, NEW MEXICO 87501
Raúl Torrez, Esq.
Page 2
November 25, 2020
defendant. The District Attorney’s Office invoked ARIA in denying this request, taking the
position that “we could not release the alibi information … because it has not been filed in court.”
Analysis
Before interpreting ARIA in the context of these two records requests, we believe it would be
helpful to review the rules of statutory construction that guide our analysis. First, we acknowledge
that the purpose of statutory interpretation is to “determine and effectuate the intent of the
legislature.” State v. Ogden, 1994-NMSC-029, ¶ 24, 118 N.M. 234, 242. See also NMSA 1978, §
12-2A-18(A)(1) (providing that “[a] statute or rule is construed, if possible, to… give effect to its
objective and purpose”). Where the plain language of a statute is clear, courts will refrain from
further analysis unless a literal interpretation would lead to an absurd or erroneous result. See Inv.
Co. of the Sw. v. Reese, 1994-NMSC-051, ¶ 13, 117 N.M. 655, 658 (noting that “the Court must
look beyond the four corners of the statute” in cases where “the literal meaning leads to conclusions
that are unjust or nonsensical”). A statute must also be read in its entirety and interpreted “as a
whole so that each provision may be considered in relation to every other part.” New Mexico
Pharm. Ass’n v. State, 1987-NMSC-054, ¶ 8, 106 N.M. 73, 74. Because New Mexico does not
have a “state-sponsored system of recording the legislative history of particular enactments,”
courts will “not attempt to divine what legislators read and heard and thought at the time they
enacted a particular item of legislation. If the intentions of the Legislature cannot be determined
from the actual language of a statute, then we resort to rules of statutory construction, not
legislative history.” Regents of Univ. of New Mexico v. New Mexico Fed’n of Teachers, 1998-
NMSC-020, ¶ 30, 125 N.M. 401, 411.
The Arrest Record Information Act
Prior to its amendment in 1993, see N.M. Laws 1993, Chapter 260, Sections 2 through 5, ARIA’s
confidentiality provisions were considerably narrower and more straightforward than they appear
today. The earlier version of ARIA contained a definition of arrest record information which was
limited to those notations of an arrest, detention, or formal criminal charge that ultimately “resulted
in a negative disposition.” NMSA 1978, § 29-10-3 (1977, amended 1993). This meant that ARIA
did not apply where a defendant had previously been convicted or pled guilty or no contest. It also
did not apply to those circumstances where the criminal proceedings against the defendant had not
yet been fully adjudicated.
The confidentiality provision in the pre-1993 version of ARIA, read as follows:
The arrest record information maintained by the state or any of its political
subdivisions pertaining to any person charged with the commission of any crime
shall be confidential and dissemination or the revealing the contents thereof, except
as provided in the Arrest Record Information Act, is unlawful.
NMSA 1978, § 29-10-4 (1975). Notably, this version of Section 29-10-4 provided confidentiality
to arrest record information that “pertain[ed] to any person charged with the commission of any
crime,” not third parties. As a whole, prior to 1993 ARIA did not contain any provisions addressing
or even mentioning individuals accused but not charged with a crime, instead focusing on those
TOLL FREE 1-844-255-9210 TELEPHONE: (505)490-4060 FAX: (505)490-4883 www.nmag.gov
MAILING ADDRESS: P.O. DRAWER 1508 - SANTA FE, NEW MEXICO 87504-1508
STREET ADDRESS: 408 GALISTEO STREET - SANTA FE, NEW MEXICO 87501
Raúl Torrez, Esq.
Page 3
November 25, 2020
actually charged with a criminal offense which resulted in a negative disposition. Even for those
individuals who had been charged but not convicted, however, confidentiality was limited because
ARIA also outlined seven distinct categories of information to which this confidentiality did not
apply, including court records. See generally NMSA 1978, § 29-10-7(A)(1979, as amended
through 1987). As noted in a 1978 Attorney General opinion, ARIA’s pre-1993 provisions “so
limit the circumstances in which arrest record information may remain confidential that as a
statutory exception to the fundamental right to public access, it actually exempts very few records
from public disclosure.” N.M. Att’y Gen. Op. 78-09 (1978).
Both ARIA and IPRA were amended in 1993 generally to provide for greater confidentiality of
arrest record information. Most importantly, Section 29-10-4 was amended to read:
Arrest record information that reveals confidential sources, methods, information
or individuals accused but not charged with a crime and that is maintained by the
state or any of its political subdivisions pertaining to any person charged with the
commission of any crime is confidential and dissemination or revealing the contents
of the record, except as provided in the Arrest Record Information Act or any other
law, is unlawful.
NMSA 1978, § 29-10-4 (1975, as amended through 1993). The effect of this language, evident
from its plain text, was to remove confidentiality protections from those who had been charged
with a crime and to provide confidentiality towards other types of information and people. As
amended, arrest record information maintained by governmental entities became confidential upon
satisfying two separate criteria: it had to reveal “confidential sources, methods, information or
individuals accused but not charged with a crime,” and it had to “pertain[…] to any person charged
with the commission of any crime.” The 1993 amendment to ARIA also broadened the definition
of “arrest record information” by eliminating the requirement that the charge or prosecution
ultimately result in a negative disposition. As amended and as the definition appears today, arrest
record information means “notations of the arrest or detention or indictment or filing of
information or other formal criminal charge against an individual made by a law enforcement
agency.” Section 29-10-3.
IPRA also was amended by the same legislation in 1993 to create the so-called “law enforcement
records exception,” which, as initially adopted, excepted from obligatory disclosure the following
records:
law enforcement records that reveal confidential sources, methods, information or
individuals accused but not charged with a crime. Law enforcement records include
evidence in any form received or compiled in connection with any criminal
investigation or prosecution by any law enforcement or prosecuting agency,
including inactive matters or closed investigations to the extent that they contain
the information listed above
NMSA 1978, § 14-2-1 (1993). This amendment is noteworthy because the new exception to IPRA
contained the same phrase as was used to confer confidentiality in ARIA: “confidential sources,
methods, information or individuals accused but not charged with a crime.”
TOLL FREE 1-844-255-9210 TELEPHONE: (505)490-4060 FAX: (505)490-4883 www.nmag.gov
MAILING ADDRESS: P.O. DRAWER 1508 - SANTA FE, NEW MEXICO 87504-1508
STREET ADDRESS: 408 GALISTEO STREET - SANTA FE, NEW MEXICO 87501
Raúl Torrez, Esq.
Page 4
November 25, 2020
Our Office interpreted the 1993 amendments to ARIA and IPRA in an Attorney General Opinion
published in 1994. In relevant part, that opinion concluded that the confidentiality conferred by
Section 29-10-4 was not afforded to the individual charged with a crime but instead to third parties
who were accused but not charged while still being named in arrest record information. See N.M.
Att’y Gen. Op. 94-02 (1994) (concluding that Section 29-10-4 “does not protect the identity of the
person charged. The reference to ‘individuals accused but not charged with a crime’ clearly is
intend [sic] to distinguish such persons from the person charged, and to protect the identity of third
parties about whom information may be recorded in investigatory or other records made in
connection with the person charged with a crime.”). As a prerequisite, the opinion explained,
Section 29-10-4 only applied where an individual had been charged with a crime, but this
individual’s identity and information was not made confidential. Only a third party who was
accused but not charged was entitled to confidentiality. It also concluded that the amendment to
IPRA “should not be read more broadly than Section 29-10-4 to protect from public inspection
information identifying an individual who has been arrested.” N.M. Att’y Gen. Op. 94-02 (1994).
Finally, it summarized the amendments as follows:
To summarize, neither the Arrest Record Information Act nor the Inspection of
Public Records Act authorize a law enforcement agency to protect the identity of
persons who have been arrested or charged with a crime. Section 29-10-4 of the
Arrest Record Information Act protects the confidentiality of information
concerning the identity of a person who has been accused but not charged with a
crime only if that information has been collected in connection with an
investigation of, or otherwise relates to, another person who has been charged with
committing a crime. However, information in other records which identifies a
person accused but not charged with or arrested for a crime may be protected from
public disclosure under the Inspection of Public Records Act.
Id.
Although the relevant provisions of ARIA have not been amended since 1993, the law enforcement
records exception was amended in 2019. As most recently amended, the exception in IPRA
diverged from its counterpart in ARIA by bifurcating “confidential sources, methods or
information” from information as to individuals who have been “accused but not charged with a
crime.” Section 14-2-1(D). The exception now permits law enforcement agencies to redact
“confidential sources, methods or information” at any stage of the prosecutorial or investigatory
process, but information as to individuals who have been “accused but not charged with a crime”
may only be redacted “before charges are filed.” Id.
Records Held by the District Attorney’s Office
Although the two records requests at issue in your opinion differ with respect to their
circumstances, both depend on the scope of Section 29-10-4. In the case of the first request (the
subpoena), the records at issue are investigatory records of a suspect who was never arrested or
charged with a crime. In the second case, the defendant was arrested but not charged, and the
records at issue contain alibi information that was never filed in court. The District Attorney’s
TOLL FREE 1-844-255-9210 TELEPHONE: (505)490-4060 FAX: (505)490-4883 www.nmag.gov
MAILING ADDRESS: P.O. DRAWER 1508 - SANTA FE, NEW MEXICO 87504-1508
STREET ADDRESS: 408 GALISTEO STREET - SANTA FE, NEW MEXICO 87501
Raúl Torrez, Esq.
Page 5
November 25, 2020
Office has taken the position that the records involved in both of these cases are confidential
pursuant to ARIA. We disagree.
With respect to the first request, the records involved are clearly not confidential under ARIA
because they simply are not arrest record information. As mentioned previously, ARIA defines
“arrest record information” as “notations of the arrest or detention or indictment or filing of
information or other formal criminal charge against an individual made by a law enforcement
agency.” Here, the suspect was never arrested, detained, or charged with a crime. As a result, the
records involved cannot possibly be notations of an arrest, detention or criminal charge, and
therefore ARIA does not apply.
To clarify, the District Attorney’s Office position that “when an individual is neither arrested nor
charged, we do not release the files nor even confirm the identity of the suspected individual,” is
inconsistent with ARIA and overbroad. For ARIA to apply at all, the information involved must
be notations of an individual’s arrest, detention or criminal charge. Moreover, confidentiality under
ARIA exists only for those records which pertain “to any person charged with the commission of
any crime.” Section 29-10-4 (emphasis added). See also N.M. Att’y Gen. Op. 94-02 (1994)
(explaining that, “on its face, the confidentiality provided under Section 29-10-4 does not apply to
a person who has been arrested but not formally charged by indictment, filing of information or
otherwise”). Information as to an individual who has been accused but not charged with a crime is
confidential under ARIA only when contained in arrest record information pertaining to another
individual who has been criminally charged.
1
This same reasoning also resolves the second records request facing the District Attorney’s Office.
Because the information involved in that case exclusively pertains to an individual who has been
arrested but not criminally charged, ARIA cannot be construed to confer confidentiality. Section
29-10-4 provides for confidentiality for certain types of information “pertaining to any person
charged with the commission of any crime.” Where the individual “has been arrested but not
formally charged by indictment, filing of information or otherwise,” this confidentiality does not
apply.
2
N.M. Att’y Gen. Op. 94-02 (1994).
We conclude by noting that we do not agree that the above interpretation of ARIA – that is, the
recognition of its plain meaning – renders the remaining language of the statute superfluous or
meaningless. The fact that the statute is not written broadly to exempt all possible investigatory
material from disclosure does not contravene its underlying purpose of preventing the “inaccurate,
incomplete,” or irresponsible dissemination of information. NMSA 1978, § 29-10-2. This is
especially clear in light of the “public policy” of the State of New Mexico that “all persons are
1
This conclusion also resolves your more recent inquiry as to whether ARIA confers confidentiality where a law
enforcement agency refers a criminal investigation to the District Attorney’s Office for possible prosecution but
charges are never filed. In such a circumstance, because charges were never filed, ARIA cannot be interpreted to
make the records confidential.
2
Even if this particular arrestee had been criminally charged, however, the arrestee still would not enjoy
confidentiality by virtue of Section 29-10-4. Where an individual has been charged with the commission of a crime,
by definition that individual cannot simultaneously be “accused but not charged with a crime.” Section 29-10-4.
This is the plain language of the statute, as we emphasized in our prior opinion on this subject. See N.M. Att’y Gen.
Op. 94-02 (1994). The only way this arrestee could be afforded confidentiality under ARIA would be if the
information at issue pertained to some other individual who had been charged with the commission of a crime.
TOLL FREE 1-844-255-9210 TELEPHONE: (505)490-4060 FAX: (505)490-4883 www.nmag.gov
MAILING ADDRESS: P.O. DRAWER 1508 - SANTA FE, NEW MEXICO 87504-1508
STREET ADDRESS: 408 GALISTEO STREET - SANTA FE, NEW MEXICO 87501
Raúl Torrez, Esq.
Page 6
November 25, 2020
entitled to the greatest possible information regarding the affairs of government and the official
acts of public officers and employees.” NMSA 1978, § 14-2-5. (We would also note that,
ironically, an interpretation of ARIA that did not take its plain meaning into account would most
definitely have the effect of rendering much of the statute’s language superfluous.)
Conclusion
As we have before in interpreting this statute, we conclude that the plain language of ARIA clearly
outlines the scope of its confidentiality provision in Section 29-10-4. Information as to individuals
accused but not charged with a crime is only confidential under ARIA where it is contained in
arrest record information pertaining to another individual who has been criminally charged. ARIA
simply does not provide a blanket exception shielding from disclosure all information about
individuals accused but not charged with a crime, nor does it exempt from disclosure information
about a person who has been arrested.
You have requested a formal opinion on the matters discussed above. Please note that such an
opinion is a public document available to the general public. Therefore, we may provide copies of
this letter to the general public. If we may be of further assistance, or if you have any questions
regarding this opinion, please let us know.
Respectfully,
John F. Kreienkamp
Assistant Attorney General
TOLL FREE 1-844-255-9210 TELEPHONE: (505)490-4060 FAX: (505)490-4883 www.nmag.gov
MAILING ADDRESS: P.O. DRAWER 1508 - SANTA FE, NEW MEXICO 87504-1508
STREET ADDRESS: 408 GALISTEO STREET - SANTA FE, NEW MEXICO 87501
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.