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.

 

 

 

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