When New Mexico law enforcement uses a warrant to extract data from someone's phone or email and then is required by the Electronic Communications Privacy Act to seal portions unrelated to the investigation, can a third party still get those sealed portions through an Inspection of Public Records Act request?

Plain-English summary

District Attorney Sam Bregman asked the AG whether portions of data extracts obtained during a criminal investigation under the Electronic Communications Privacy Act (ECPA), and required by ECPA to be sealed, are exempt from public disclosure under New Mexico's Inspection of Public Records Act (IPRA). The AG concluded yes.

The ECPA, enacted in 2019, generally prohibits government access to electronic communication and device information, but allows access through warrants, consent, and emergency procedures. When the government obtains data through these channels, the ECPA requires sealing of any information that is unrelated to the warrant's objective, not exculpatory to the target, or obtained without proper authorization. Sealed information "shall not be subject to further review, use or disclosure" except by court order with probable cause.

IPRA's catchall exception (§ 14-2-1(N)) excludes records "as otherwise provided by law." The AG concludes that the ECPA's sealing language fits this exception. New Mexico courts have applied the catchall to similar sealing provisions (CYFD foster care records in Beck, voluntary commitment records under § 43-2-11). To read IPRA as overriding the ECPA's sealing requirements would gut the privacy protections the ECPA was specifically designed to provide.

The opinion does not address whether IPRA might require disclosure of similar information that is not sealed under the ECPA, or whether redaction rules in § 14-2-1.2 apply.

What this means for you

If you are a New Mexico prosecutor or law enforcement records officer

Sealed data extracts under the ECPA are exempt from IPRA disclosure. When you receive a public records request for these materials, deny under § 14-2-1(N) (catchall) and cite this opinion. The opinion is specific: information sealed under § 10-16F-3(D)(2), (G), (H), or (L) is shielded from IPRA.

Maintain clear sealing protocols. The ECPA requires sealing of information that:

• Is unrelated to the warrant's objective.
• Is not exculpatory to the target.
• Was obtained through voluntary disclosure by a service provider (without consent or court order within 90 days).
• Was obtained under the emergency exception but the court later denies the application.

Sealed information must also be destroyed when the investigation ends if it is unrelated to the warrant's objective (§ 10-16F-3(G)).

If you are a defense attorney or criminal target

Sealed information stays sealed unless a court orders unsealing for "an active investigation" or "discovery as required." Discovery in your client's case can be the basis for accessing sealed information that pertains to the prosecution. Public records requests will not work.

If you suspect the prosecution has unsealed information improperly or has not properly sealed information that the ECPA required to be sealed, that is grounds for motion practice in the underlying criminal case.

If you are a journalist or transparency advocate

The ECPA sealing provisions are a significant carve-out from IPRA. You cannot use IPRA to investigate the contents of warrant-derived data extracts. The privacy interest the ECPA protects (incidental information about non-targets caught in a warrant's scope) is intentionally walled off from public disclosure.

If you believe the ECPA's sealing provisions are too broad, the avenue is legislative, not IPRA. Watch the legislature for any amendments to § 10-16F-3 that might tilt back toward disclosure.

If you are a privacy attorney advising on data extraction

This opinion strengthens the ECPA's privacy posture. When data is extracted under a warrant, the parts unrelated to the warrant's purpose are protected from both prosecutorial use beyond the case and from public disclosure. Combined with the destruction requirements, the ECPA provides a strong privacy backstop.

Common questions

Q: What is the ECPA?
A: The New Mexico Electronic Communications Privacy Act, NMSA 1978 §§ 10-16F-1 to -6, enacted in 2019. It restricts government access to electronic communications and device data, with exceptions for warrants, consent, and emergencies.

Q: What is IPRA's "catchall exception"?
A: Section 14-2-1(N) excludes from public records "as otherwise provided by law." Other state statutes (and federal laws) can create exceptions to IPRA's general disclosure rule. Courts have applied this catchall to confidentiality provisions like the ECPA's sealing requirements.

Q: When is information sealed under the ECPA?
A: Information is sealed when it is obtained through warrants, voluntary service-provider disclosure, or emergency procedures, AND falls outside the scope of the warrant or authorization. Specifically:

• § 10-16F-3(D)(2): warrant-derived information unrelated to the objective or non-exculpatory.
• § 10-16F-3(G): destruction of unrelated information after investigation closure.
• § 10-16F-3(H): voluntary-disclosure information (unless consent within 90 days).
• § 10-16F-3(L): emergency-derived information when court denies the application.

Q: Can a court ever unseal this information?
A: Yes. The ECPA permits a court to order unsealing on a "finding that there is probable cause to believe that the information is relevant to an active investigation or review, use or disclosure is required by state or federal law or to comply with discovery as required."

Q: Does IPRA itself provide a basis for unsealing?
A: No. The AG concludes IPRA does not provide an independent state-law basis for a court to unseal. Reading IPRA to override the ECPA's sealing provisions would render those provisions meaningless, contrary to the principle that statutes must be read together to give effect to all language (Blue Canyon Well Ass'n, 2018).

Q: What about IPRA's redaction rule for law-enforcement records?
A: The opinion does not address § 14-2-1.2's redaction requirements. If both rules apply to a particular record, both should be considered. The ECPA sealing analysis is the narrower question this opinion answers.

Background and statutory framework

IPRA was enacted "to promote the goal of transparency in our state government" (Borrego v. First Jud. Dist. Attorney's Off., 2025). Section 14-2-5 declares the public policy that "all persons are entitled to the greatest possible information regarding the affairs of government." Section 14-2-1(N) creates the catchall exception for records "as otherwise provided by law."

The ECPA, enacted in 2019, was designed "to protect the individual privacy interests associated with electronic devices and electronic communications" (per the AG's 2021-07 opinion). The 2021-12 opinion addressed an adjacent question (whether the ECPA prevents inter-agency IPRA requests). This 2026-07 opinion is narrower, addressing whether the ECPA's specific sealing provisions exempt sealed materials from IPRA.

The ECPA's sealing provisions are explicit:

[I]nformation obtained through the execution of the warrant that is unrelated to the objective of the warrant or is not exculpatory to the target of the warrant shall be sealed and shall not be subject to further review, use or disclosure except pursuant to a court order or to comply with discovery as required.

§ 10-16F-3(D)(2). Similar language appears in subsections (G), (H), and (L).

The AG applies two interpretive principles. First, statutes that prohibit "review, use or disclosure" of certain information fit IPRA's catchall exception (Beck v. State ex rel. CYFD, 2024). Second, courts read statutes together to give effect to all language; reading IPRA to override the ECPA's sealing provisions would render the privacy protections null (Blue Canyon Well Ass'n).

The opinion also notes a structural reason for the conclusion: the ECPA's sealing provisions apply to information "unrelated to the objective of the warrant," and that information would not normally relate to public business so as to qualify as a public record under IPRA in any case (§ 14-2-6(H)).

Citations and references

Statutes:
- NMSA 1978 §§ 10-16F-1 to -6 (ECPA)
- NMSA 1978 §§ 14-2-1 to -12 (IPRA)

Cases:
- Borrego v. First Jud. Dist. Attorney's Off., 2025-NMCA-012
- Beck v. State ex rel. CYFD, 2024-NMCA-082
- Blue Canyon Well Ass'n v. Jevne, 2018-NMCA-004
- State ex rel. Quintana v. Schnedar, 1993-NMSC-033

Prior AG opinions:
- N.M. Att'y Gen. Op. 2021-07 (Aug. 19, 2021)
- N.M. Att'y Gen. Op. 2021-12 (Oct. 27, 2021)

Source

• Landing page: https://nmdoj.gov/publications/opinions/
• Original PDF: https://nmdoj.gov/wp-content/uploads/Attorney-General-Opinion-2026-07.pdf

Original opinion text

March 31, 2026

OPINION OF RAÚL TORREZ
Attorney General

Opinion No. 2026-07

To: Sam Bregman, District Attorney, Second Judicial District Attorney's Office
Re: Attorney General Opinion – Implications of the Sealing Provisions of Electronic Communications Privacy Act on the Inspection of Public Records Act

Question

Are the sealed portions of data extracts gathered as part of a criminal investigation pursuant to the Electronic Communications Privacy Act (ECPA), NMSA 1978, §§ 10-16F-1 to -6 (2019, as amended through 2020), exempt from production in response to an Inspection of Public Records Act (IPRA), NMSA 1978, §§ 14-2-1 to -12 (1947, as amended through 2025), request pursuant to its "as otherwise provided by law" exception in Section 14-2-1(N)?

Short Answer

Yes, information obtained via the warrant procedures of the ECPA that is also required to be sealed under those provisions (e.g., information not relevant to the objective of the warrant) is exempt from production under IPRA's catchall exception.

Background

IPRA was enacted to "promote the goal of transparency in our state government." Borrego v. First Jud. Dist. Attorney's Off., 2025-NMCA-012, ¶ 12. Under IPRA, "it is declared to be the public policy of this state, that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of public officers and employees." Section 14-2-5. "Every person has a right to inspect public records" under IPRA and can request such records under the Act's procedures. Section 14-2-1; see § 14-2-8. However, if a record falls under one of thirteen enumerated exceptions, or an exception is "otherwise provided by law," the record need not be disclosed. Section 14-2-1.

Where IPRA permits the public's access to governmental records, the ECPA restricts the types of records the government can access from the public. The ECPA was originally enacted in 2019 "to protect the individual privacy interests associated with electronic devices and electronic communications." N.M. Att'y Gen., No. 2021-07 (Aug. 19, 2021), at 2. Broadly, the ECPA restricts the ability of the government to compel, incentivize, or access individuals' "electronic communication information" and "electronic device information" directly or via a service provider. Section 10-16F-3(A). But if the government has a warrant or consent, or if there is an emergency (among other statutory exceptions), it can access such data if it follows the procedures detailed by the ECPA. See, e.g., § 10-16F-3(B), (C), (D).

This Office previously addressed a related issue in our Attorney General Opinion regarding Public Records Requests Made by the State Ethics Commission. N.M. Att'y Gen., No. 2021-12 (Oct. 27, 2021). Today, we address a different, narrower question—whether the ECPA exempts sealed data extracts gathered as part of a criminal investigations from disclosure under IPRA.

Analysis

Under IPRA's catch-all exception, public records are excepted from disclosure if "otherwise provided by law." Section 14-2-1(N). The question presented asks whether the ECPA—specifically Section 3, Subsections D(2), G, H, and L—exempts the sealed portions of data extracts gathered pursuant to a data investigation from disclosure under IPRA.

In answering this question, we address only that data which the ECPA requires to be sealed and do not explain which types of data the ECPA requires to be sealed. We also assume for purposes of answering the question that the only potential exception to IPRA at issue is the ECPA's sealing provisions, and we do not address IPRA's redaction requirements for law enforcement records set out in Section 14-2-1.2 or any other potential exception.

We begin with the provisions of the ECPA. Under the ECPA, governmental entities are prohibited from:

(1) compel[ling] or incentiviz[ing] the production of or access to electronic communication information from a service provider; (2) compel[ling] the production of or access to electronic device information from a person other than the device's authorized possessor; or (3) access[ing] electronic device information by means of physical interaction or electronic communication with the electronic device.

Section 10-16F-3. The ECPA, however, immediately provides some exceptions to that broad rule. As to the first and second methods—compelling data from service providers or unauthorized possessors of devices—a governmental entity may only compel or incentivize production with a warrant or wiretap order. Section 10-16F-3(B). As to the third—accessing a device by physical or electronic interaction—a governmental entity may only physically or electronically access a device with a warrant, wiretap, consent of the authorized possessor, consent of the device's owner if the device has been reported lost or stolen, under good faith belief the device is lost or stolen and with the intent to return it, or because of emergency. Section 10-16F-3(C).

The ECPA dictates not only how the government can obtain citizens' information, but also how it can disclose and retain that information. To start, the ECPA details how the government must obtain a warrant for electronic information. A governmental entity must "describe with particularity" the information sought and otherwise comply with state and federal law on search warrants. Section 10-16F-3(D)(1), (3). When the government obtains information via a warrant, some of that information must be sealed. The ECPA:

require[s] that information obtained through the execution of the warrant that is unrelated to the objective of the warrant or is not exculpatory to the target of the warrant shall be sealed and shall not be subject to further review, use or disclosure except pursuant to a court order or to comply with discovery as required. A court shall issue such an order upon a finding that there is probable cause to believe that the information is relevant to an active investigation or review, use or disclosure is required by state or federal law.

Section 10-16F-3(D)(2) (emphasis added).

This is not the only sealing provision present in the ECPA. For both warrants and wiretap orders, a governmental entity must "destroy[]" "[i]nformation obtained through the execution of a warrant or order that is unrelated to the objective of the warrant . . . as soon as feasible after the termination of the current investigation and related investigations." Section 10-16F-3(G).

When the government obtains information via a service provider's voluntary disclosure, § 10-16F-3(F), the governmental entity

shall seal that information, which shall not be subject to further review, use or disclosure except pursuant to a court order upon a finding that there is probable cause to believe that the information is relevant to an active investigation or review, use or disclosure is required by state or federal law or to comply with discovery as required.

Section 10-16F-3(H). Sealing, however, is not required if the government obtains the consent of the sender or recipient, or a court order, within ninety days of receipt of the information. Section 10-16F-3(H)(1)–(2).

If the government obtains information under the ECPA's emergency provisions, it must seek permission from the court after the fact (via an application for a warrant or a motion) within three days of obtaining the information. Section 10-16F-3(K). If the court finds there was no emergency or otherwise denies the application or motion, it must order

the immediate sealing of all information obtained, which shall not be subject to further review, use or disclosure except pursuant to a court order upon a finding that there is probable cause to believe that the information is relevant to an active investigation or review, use or disclosure is required by state or federal law or to comply with discovery as required.

Section 10-16F-3(L).

In sum, under the ECPA, when the government obtains, via a warrant or wiretap order, information "that is unrelated to the objective of the warrant or is not exculpatory to the target of the warrant," it must be sealed. Section 10-16F-3(D)(2). If that information is "unrelated" to the objective of the warrant (or other ongoing investigations), it must also be destroyed once the investigation is complete. Section 10-16F-3(G). If the information was voluntarily disclosed by a service provider, it must be sealed. Section 10-16F-3(H). And if the government obtains information under the guise of emergency, but a court later disagrees, the information must then be sealed. Section 10-16F-3(L).

The sealing provisions command that information "shall [be] seal[ed]" and

shall not be subject to further review, use or disclosure except pursuant to a court order upon a finding that there is probable cause to believe that the information is relevant to an active investigation or review, use or disclosure is required by state or federal law or to comply with discovery as required.

Section 10-16F-3(H); see also § 10-16F-3(D)(2), (L)(1) (similar).

This language raises two questions for our analysis. First, is the language "shall not be subject to further review, use or disclosure" sufficient to fall under the "as otherwise provided by law" exception to disclosure under IPRA? And second, is IPRA one such "state or federal law" that requires "review, use or disclosure" of otherwise sealed information?

As to the first question, the answer is yes, such language is sufficient to constitute an exception under IPRA's catchall provision. New Mexico courts have interpreted statutes and regulations that use similar language as qualifying for the catchall exception. For example, in Beck, our Court of Appeals held that a Children, Youth & Families Department (CYFD) regulation dictating certain foster care records "are confidential and may not be publicly disclosed" fell under the catchall exception. Beck v. State ex rel. CYFD, 2024-NMCA-082, ¶ 31. The Attorney General's IPRA Guide recognizes as catchall exceptions statutes with similar language regarding sealing (e.g., shall not "disclose") to the ECPA. Materials required to be sealed under the ECPA are not required to be disclosed under IPRA.

As to the second question, the answer is no. Where records are otherwise required to be sealed under the ECPA, IPRA does not provide a state law basis for such documents to be unsealed via court order. To recount, the ECPA permits a court to order otherwise sealed information unsealed if "review, use or disclosure is required by state or federal law." See, e.g., § 10-16F-3(H). IPRA does not itself provide such a state-law basis for the court to unseal information lawfully sealed pursuant to the ECPA.

To begin, "the purpose of the [ECPA] is clearly to protect the individual privacy interests associated with electronic devices and electronic communications." N.M. Att'y Gen., No. 2021-07, at 2. The ECPA's sealing provisions embody this goal, requiring the government to seal information that is not relevant to the objective of its warrants, thereby protecting the privacy interests of unwitting citizens swept up in the scope of a warrant. To find that where the ECPA requires such information to be sealed in the interest of privacy, any public citizen, via IPRA, has the right to inspect that same information, would render the ECPA's sealing provisions null and void. In interpreting statutes, the "primary goal is to give effect to the Legislature's intent," and so we must "interpret statutes to avoid rendering the Legislature's language superfluous." Blue Canyon Well Ass'n v. Jevne, 2018-NMCA-004, ¶ 9. We do not read the broad provisions of IPRA to pierce the ECPA's specific shield for the privacy rights of New Mexicans.

In similar cases, New Mexico courts have implied that IPRA does not provide an independent basis to seek a court order to unseal otherwise confidential information. Reading the ECPA's sealing provisions to govern over IPRA's inspection provisions makes sense reading both statutes as a whole. See State ex rel. Quintana v. Schnedar, 1993-NMSC-033, ¶ 4. While IPRA allows for the public to inspect public records, it does not contain any provision permitting the public to unseal sealed records, or to force a governmental entity to seek a court order to unseal the records. Likewise, because the ECPA's sealing and destruction provisions apply to information that is "unrelated to the objective of the warrant," § 10-16F-3(D)(2), such information is unlikely to "relate to public business" so as to qualify as a public record under IPRA. Section 14-2-6(H). This reading also accords with the ECPA's instruction that "[n]othing in this section shall be construed to expand any authority under New Mexico law to compel the production of or access to electronic information." Section 10-16F-3(O).

In sum, the ECPA's provisions for the sealing and destruction of certain records qualify for IPRA's catchall exception.

Conclusion

In enacting the ECPA, the Legislature acted to protect the privacy interests of private citizens whose information was obtained via otherwise lawful warrants. To give meaning to those provisions, it is the opinion of the Attorney General that information required to be sealed or destroyed under the ECPA, specifically Section 3, Subsections D(2), G, H, and L, is not subject to disclosure under IPRA.

Please note that this opinion is a public document and is not protected by the attorney-client privilege. It will be published on our website and made available to the general public.

RAÚL TORREZ
ATTORNEY GENERAL
/s/ Daniel Ahrens
Daniel Ahrens
Assistant Solicitor General