The Review-Journal online headline reads: “Media contends attorney general-sponsored bill will reduce government transparency.”
First of all, “media” are plural. For want of an editor agreement was lost.
The print version has a completely different headline, but the story, which is about the heart and soul of news reporting on state and local government, is buried at the bottom of 2B and gives short shrift to a topic that can have dire ramifications for the newspaper for years to come.
The story is about a legislative hearing on Assembly Bill 31, which drastically alters the state public records law.
The law now states that the books and records of state and local government are available to the public on demand unless specifically declared confidential by law. AB31 changes the law to read that “all public books and public records of a governmental entity
[, the contents of which are not otherwise declared by law to be confidential,] must be open at all times during office hours to inspection by any person …”
Then it adds this language:
“A governmental entity may withhold a public book or record of the governmental entity if, on the facts of the particular case, the public interest served by nondisclosure of the public book or record clearly outweighs the public interest served by disclosure of the public book or record.”
What is in “the public interest” is definitely in the eye of the beholder, as I can attest, having spent 40 years butting heads with bureaucrats and functionaries over access to government records that might prove embarrassing to certain elected officials or public employees.
According to the R-J story, two people testified against changing the law — Barry Smith, executive director of the Nevada Press Association, and Karen Gray, a reporter for the Nevada Journal, an online publication of the Nevada Policy Research Institute. Apparently, the largest newspaper in the state did not deem it important to have anyone squawk about the potential for its ox to be gored.
The bill would essentially create a “balancing test” to be administered by the agency in charge of the books and records. The “balancing test” was invented by the state Supreme Court in the case of Donrey v. Bradshaw in 1990, and it has been biting reporters in the arse ever since.
The newspaper quoted Assemblyman Elliot Anderson from Las Vegas as saying he read the balancing test decision and thought it “was relatively favorable to open records” and questioned the media opposition.
In fact, Donrey v. Bradshaw was, at first blush, a victory for the media.
A Reno television station, which was then owned by the same company that owned the Las Vegas newspaper, requested a police investigative report on brothel owner Joe Conforte. The Reno city attorney had dismissed charges of contributing to the delinquency of a minor against Conforte even though police opposed the dismissal. Such reports are by law confidential.
The court applied a balancing test and found that “weighing the absence of any privacy or law enforcement policy justifications for nondisclosure against the general policy in favor of open government” that the scales tipped in favor of release of the records.
Ever since then attorneys for local governments have been applying the balancing test to argue that records clearly public should be confidential, even though there is no specific law saying so. The argument has been made to attempt to deny access to everything from employee evaluations and salaries to cell phone records of county commissioners. The R-J won that latter case at the state Supreme Court.
Smith reportedly argued judges, not bureaucrats, should determine whether a record is open for inspection.
The R-J story did not even address another topic of the hearing that would affect the open meetings law, Assembly Bill 65, which appears to be an attempt to curb public bodies “deliberating” outside of public scrutiny by using electronic devices. It also exempts the Legislature from its provisions.