Who may apply a ‘balancing test’ for access to public records?

A story in today’s newspaper about police denying the paper access to certain arrest records stated:

The denial also cited a “balancing test” established by a 1990 state Supreme Court decision, now a common method of blocking public access to government records. Donrey of Nevada v. Bradshaw allowed governments to withhold records not deemed confidential if officials decided secrecy was in the best interest of the public.

Actually, Donrey v. Bradshaw stated that the courts could apply a balancing test, not every bureaucrat in custody of records deemed public by virtue of the Nevada Public Records Act. Also, the balancing test that the court applied did not withhold records but rather declared that records otherwise deemed confidential by law could be made public if it was in the best interest of the public. It was a victory for the media and the public, not a loss.

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 “judicial” 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.

In overturning a district court ruling denying the disclosure of the requested records, the state Supreme Court stated:

There is no pending or anticipated criminal proceeding; there are no confidential sources or investigative techniques to protect; there is no possibility of denying someone a fair trial; and there is no potential jeopardy to law enforcement personnel. Even the district court acknowledged in its order that “if a [balancing] test were applied under the circumstances of this case, petitioners would undoubtedly prevail.”

But, ever since then local governments have been applying the balancing test to argue that records clearly defined by law as public could be kept confidential under their own balancing test — even though there is no specific law allowing this and no court precedent. 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, are the only ones who may apply a balancing test to determine whether a record is open for public inspection. That is what Donrey v. Bradshaw actually says.

Jim Day cartoon