Case law did not create a public records balancing test for bureaucrats

The morning newspaper today began a series of articles marking Sunshine Week, which was created to shine a light on the need for governmental transparency.

That is a laudatory endeavor. The lede story quotes  attorney Maggie McLetchie, who has represented the paper in a number of lawsuits seeking public records, as saying, “We could file one of these lawsuits everyday (sic) … But, fundamentally, you shouldn’t have to pay a lawyer to get access to records of taxpayer-funded agencies. The whole point is that the government works for us, the people, and we should be able to evaluate the work of the government.”

Or as I wrote in this past week’s newspaper column: “The point is that for the public to be able to perform its democratic role in voting into or out of office the most suitable personages, they must be kept informed as to how well or ill the current office holders and their minions are doing their jobs.”

But today’s story contained a fundamental misstatement of case law.

It said the case of Donrey v. Bradshaw “allowed governments to withhold records not deemed confidential if officials decide secrecy is in the best interest of the public.”

No, as I wrote in 2013, Donrey v. Bradshaw was 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 Nevada Supreme 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.

But, ever since then 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. That argument has been used to deny access to everything from employee evaluations and salaries to cell phone records of county commissioners.

Judges, not  bureaucrats with vested interests, should be the only ones who may apply a balancing test to determine whether a record is open for inspection.

The case of Donrey v. Bradshaw did not allow government bureaucrats to do so. The courts or lawmakers should make this clear, though we suspect lawmakers would opt for less transparency.

Let the sun shine in.





3 comments on “Case law did not create a public records balancing test for bureaucrats

  1. Anonymous says:

    “The U.S. government in the last year has censored, withheld, or said it was not able to obtain a record number of documents and information sought by journalists more than at any point in the last decade, according to an Associated Press analysis.

    The AP also reports that in the last decade people who requested records under the Freedom of Information Act got censored documents or nothing in 78 percent of the 823,222 requests, marking another record.

    The outlet notes that the federal government spent a record $40.6 million in legal fees in defending its action to withhold the records.”

  2. Common Sense says:

    Republicans and Democrats on the House Intelligence Committee are battling over whether to release transcripts of their interviews now that the panel’s year-long investigation into Russian interference is ending.

    Both sides initially agreed that transcripts of interviews with 73 witnesses would be released, but some GOP lawmakers are now saying that making some of the interviews public could make it harder to compel witnesses to appear for future investigations.”

  3. Rincon says:

    Interesting fact, Anonymous. It appears there are 8 signs of tyranny, not 7 as listed by Robert Reich. Are you Trump supporters or enablers?

    7 Signs of Tyranny

    As tyrants take control of democracies, they typically do 7 things:

    1. They exaggerate their mandate to govern – claiming, for example, that they won an election by a “landslide” even after losing the popular vote. They criticize any finding that they or co-conspirators stole the election. And they repeatedly claim “massive voter fraud” in the absence of any evidence, in order to have an excuse to restrict voting by opponents in subsequent elections.

    2. They turn the public against journalists or media outlets that criticize them, calling them “deceitful” and “scum,” and telling the public that the press is a “public enemy.” They hold few, if any, press conferences, and prefer to communicate with the public directly through mass rallies and unfiltered statements (or what we might now call “tweets”).

    3. They repeatedly lie to the public, even when confronted with the facts. Repeated enough, these lies cause some of the public to doubt the truth, and to believe fictions that support the tyrants’ goals.

    4. They blame economic stresses on immigrants or racial or religious minorities, and foment public bias or even violence against them. They threaten mass deportations, “registries” of religious minorities, and the banning of refugees.

    5. They attack the motives of anyone who opposes them, including judges. They attribute acts of domestic violence to “enemies within,” and use such events as excuses to beef up internal security and limit civil liberties.

    6. They appoint family members to high positions of authority. They point their own personal security force rather than a security detail accountable to the public. And they put generals into top civilian posts.

    7.They keep their personal finances secret, and draw no distinction between personal property and public property – profiteering from their public office

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