Editorial: PERS should stop trying to hide public records

The Public Employees’ Retirement System should stop wasting taxpayer money and release the records of Nevada public employee retiree payments as the courts previously ordered them to do.
The Reno Gazette-Journal sued for these records in 2013 and won in the state Supreme Court, which found the records are clearly covered under the state public records law. The records were released, but the very next year PERS changed how their files are maintained in an obvious ruse to dodge the clear meaning of the court ruling. PERS now says their files do not contain names of retirees, but only Social Security numbers, which are confidential. They also say the law does not require them to create a new document from existing computer files, even though a past state Supreme Court in another case required just such a document creation.
Nevada Policy Research Institute sued PERS​ and the Supreme Court heard the case this past week.
​This past summer District Court Judge James Wilson spelled out clearly his rationale for requiring the records to be released: “Considering the purpose of the NPRA (Nevada Public Records Act), to foster democratic principles by providing member of the public with access to public books and records; the legislative mandate that courts construe the NPRA liberally to carry out this important purpose; the legislative mandate that any exemption, exception or balancing of interests which limits or restricts access to public books and records by members of the public must be construed narrowly; the lack of evidence that producing the requested information, retiree name, years of service credit, gross pension benefit amount, year of retirement, and last employer would require unreasonable demands or costs on PERS; the fact that PERS altered its procedure in providing information to its actuary to eliminate the names of retirees in part because of the Reno Newspapers decision, the court concludes that PERS does have a duty to create a document that contains the requested information.​”
​During this past week’s hearing Chief Justice Michael Douglas suggested that PERS had “gone out of its way to violate the spirit of the law.” Indeed it has.
All NPRI is seeking is ​ retiree name, payroll amount, date of retirement, years of service, last employer, retirement type, original retirement amount, and cost of living increases.
PERS argues there is some vague possibility of identity theft or fraud if this information is released, though the courts have ruled such supposition cannot outweigh the public’s right to know how their tax dollars are spent.
In fact, the Supreme Court has all ready addressed and adjudicated this in the Reno newspaper suit in 2013, saying, “Because PERS failed to present evidence to support its position that disclosure of the requested information would actually cause harm to retired employees or even increase the risk of harm, the record indicates that their concerns were merely hypothetical and speculative. Therefore, because the government’s interests in nondisclosure in this instance do not clearly outweigh the public’s presumed right to access, we conclude that the district court did not err in balancing the interests involved in favor of disclosure.”
NPRI’s attorney Joseph Becker argued in a brief filed with the court that the law “states that the purpose of PERS is to, ‘provide a reasonable base income to those whose earning capacity has been removed or substantially reduced,’ previously released records indicate that there are retirees in their 40’s collecting six figure disbursements from PERS while still earning income from other sources. … Only through the publication of name, pension payout and related data can the public better understand how the system works and the legislative purpose be effectuated. … Additionally, because lawmakers can directly profit from decisions they make pertaining to PERS, there is an overwhelming need for the public to have comprehensive access to this information.” Seems persuasive to us.
PERS should stop stalling and release the records.
A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

9 comments on “Editorial: PERS should stop trying to hide public records

  1. Bruce Feher says:

    I bet PERS is hiding information because they have something to hide!

  2. Common Sense says:

    Judicial activism.

    PERS follows the law, a judge makes up a new law, based on nothing more than his idea, and that activism is applauded here because the result is one that is favored in this case.

    Since when was the result more important than the principle?

  3. Actually, it was judicial activism in the Donrey v. Bradshaw ruling. PERS is not following the law, which clearly states the information is public record. PERS created a ruse to dodge the law and prior court rulings.

  4. Anonymous says:

    The law does not requires PERS to compile a document that does not exist.

    The fact that a judge goes beyond what the law says, and interprets a requirement that PERS compiles such a document because “the spirit” of the law, as he sees it, requires PERS to do so, means that the judge is not following the law, he’s creating it.

    That’s judicial activism. As I said though,apparently because this is the result you desire, the principle you’ve spoken about in the past, doesn’t count.

  5. Steve says:

    All FOIA requests result in the creating of documents that didn’t exist prior.

    You are trying to create a high horse so you can ride it, Patrick.

  6. Anonymous says:

    President Trump required senior White House staffers to sign nondisclosure agreements that extend past his presidency, according to a reported column in The Washington Post.

    “That information was defined as “all nonpublic information I learn of or gain access to in the course of my official duties in the service of the United States Government on White House staff,” including “communications … with members of the press” and “with employees of federal, state, and local governments.”


  7. Nevada state law requires agencies to create a new document if that is the only means necessary to access the requested “information stored on a computer” aka the statutory definition of a public record: https://www.npri.org/issues/publication/pers-lawsuit-timeline-2011-2018

    An unduly narrow interpretation of Nevada’s definition of a public record

    PERS has been able to re-litigate this issue because of a loophole in the state Supreme Court’s 2013 Reno Newspapers ruling, which found that while the pension data requested was public, PERS was only required to provide copies of existing reports that contained that information.

    Specifically, the Court held that an agency has no obligation to “create new documents or customized reports…” in response to a public records request.

    Thus, by simply no longer creating any reports with pension information alongside names, PERS can respond to requests for that information by stating no such document exists.

    But this ruling is unduly narrow, given Nevada state law defines a public record to include, without limitation:

    (a) Papers, unpublished books, maps and photographs;

    (b) Information stored on magnetic tape or computer, laser or optical disc;

    (c) Materials that are capable of being read by a machine…

    While the first subsection lists very precise materials that qualify as a public record, the second subsection uses the much broader term “information” stored on a computer, not merely existing reports or documents.

    The Legislature’s deliberate use of the inherently broad “information,” immediately following the use of much more specific terms like maps and photographs, makes clear that public records encompass all information stored on a computer, regardless of whether or not it has already been extracted into an existing document.

    This is something the State of Nevada, of which PERS is a political subdivision, recognizes in their official guidebook Nevada Public Records Act: A Manual for State Agencies.

    As a subdivision of the State, PERS is legally required to follow the instructions set forth in their manual, and even admitted as much in their brief when arguing that the Manual has “the force of law.”

    So what does the Manual have to say on this matter?

    First, under the section titled “What is a public record?” the manual offers that:

    “Computer software developed by the government is not a public record, but the computer software may generate public records.”

    Here is a clear recognition that the extraction of existing public records (defined in statute as “information” stored on a computer) might require computer software to “generate” the records being requested. If PERS was correct in their narrow interpretation of defining public records to include only existing, already-created documents, there would be no need for an agency to rely on computer software to “generate” a public record in the first place.

    Then, under a section entitled, “Extraordinary use fees,” the Manual offers the following as one example of when an agency is permitted to charge an extraordinary use fee:

    “Extracting information that the requester is entitled to inspect requires computer programming.”

    This fits the description of Judge Wilson’s order to a tee. NPRI requested the exact pieces of information ruled public by the Nevada Supreme Court in Reno Newspapers. That information already exists within PERS computer database, albeit no longer in an already-created report or document.

    But because state law defines public records in the broad terms of information stored on a computer, the state Manual correctly recognizes that the agency must extract that information into a readable format, although they may charge a production fee if doing so would require computer programming.

    This is also just common-sense. For state law to define a public record to include “without limitation…information stored on a computer,” necessitates that the agency must make that information available in a readable format — even if that means creating a new document.

    Any other interpretation is inherently illogical. It is of little use to declare information stored on a computer to be public and open to all, but then allow agencies to freely deny a request to access that information on the grounds that doing so would require them to create a new document!

    To the extent public agencies are not required to create a new record, it is imperative that we recognize the plain statutory language of what a record entails. A public agency is not required to create new information in response to a request, but they must be required to create a new document if that is the only mechanism by which the public can access the existing information (public record) stored on a computer database.

  8. […] the names of pensioners might expose them to identity theft and fraud. The state Supreme Court dismissed that claim in its 2013 ruling by saying, “Because PERS failed to present evidence to support its position […]

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