Nevada high court strengthens access to public records

In a narrow 4-3 decision Thursday the Nevada Supreme Court strengthened the public’s access to records held by government agencies, ruling that the Public Employees’ Retirement System must provide the names and pension amounts of retired public workers.

In 2013 the court ruled that PERS had to provide those records to the Reno Gazette-Journal and it did so, but the following year PERS altered its record keeping process so that names were deleted from the pension data and each record was linked only to confidential Social Security numbers. When the Nevada Policy Research Institute sought the same records in 2014 as was given to the newspaper in 2013, it was denied. PERS cited the court ruling that said it did not have to “create” a record on request.

The majority opinion was penned by Chief Justice Michael Douglas and joined by Justices Michael Cherry, Mark Gibbons and Kristina Pickering. The dissent was penned by Justice Lidia Stiglich and joined by Justices Ron Parraguirre and James Hardesty. Stiglich, who was appointed in 2016, is up for re-election on the November ballot and faces conservative District Court Judge Mathew Harter.

The majority notes that PERS’ contention would contravene the very purpose of the public records law, which is to allow the public to keep an eye on how its government officials behave and spend their money.

The opinion cited a court ruling that found “sorting a pre-existing database of information to make information intelligible does not involve the creation of a new record because … computer records found in a database rather than a file cabinet may require the application of codes or some form of programming to retrieve the information. Sorting a database by a particular data field (e.g., date, category, title) is essentially the application of codes or some form of programming, and thus does not involve creating new records or conducting research — it is just another form of searching that is within the scope of an agency’s duties …”

The majority also cited its own decision in a case called Blackjack Bonding that found “when an agency has a computer program that can readily compile the requested information, the agency is not excused from its duty to produce and disclose that information.”

In a footnote, the majority countered the contention of the dissent, saying, “The dissent argues that the creation of a computer program is not merely drawing information from a database, but rather, improperly requires the agency to conduct research. However, its reasoning ignores the realities of information storage in the digital age. As specifically recognized by the (the aforementioned court ruling), “computer records found in a database rather than a file cabinet may require the application of codes or some form of programming to retrieve the information.”

Another footnote said the majority was not overruling its previous decision about an agency not having to create a record, but clarifying the earlier holding to reflect the realities of the advancements in technology and to further the purpose underlying the public records law.

The court remanded the case to the lower court to determine precisely how the NPRI records request would be handled and what, if any, expenses the agency could charge for the production of the records.

NPRI’s Director Robert Fellner said in a press release about the case: “PERS argued that public records should be defined narrowly to only include existing documents or reports, rather than all forms of recorded information related to governmental affairs. Had the Court accepted this argument, governments across the state could simply hide information they did not wish to be made public by keeping it stored in a computer database. Thankfully, the Court upheld the plain, statutory definition of a public record to include information stored in a computer database.”


2 comments on “Nevada high court strengthens access to public records

  1. Anonymous says:

    Applauding judicial activism?

    Hard to understand really, at least if the principle is what’s important.

    Tell me Thomas, when the statute was created, what did they “record” and why would a footnote, explaining how the court was now changing the definition of that word, to mean something to reflect the change in technology, make it alright?

    I mean, alright at least since they arrived at the result you find desireable?

    I fear for our beloved republic.

  2. NRS 239.001  Legislative findings and declaration.  The Legislature hereby finds and declares that:
    1.  The purpose of this chapter is to foster democratic principles by providing members of the public with access to inspect and copy public books and records to the extent permitted by law;
    2.  The provisions of this chapter must be construed liberally to carry out this important purpose;
    3.  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;
    4.  The use of private entities in the provision of public services must not deprive members of the public access to inspect and copy books and records relating to the provision of those services; and
    5.  If a public book or record is declared by law to be open to the public, such a declaration does not imply, and must not be construed to mean, that a public book or record is confidential if it is not declared by law to be open to the public and is not otherwise declared by law to be confidential.

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