Editorial: Public records bills still pending

As the Legislature grinds its way down to sine die in a couple of weeks, there are still some pending bills that could affect your ability and that of the press to see just what our elected and appointed officials are up to by being able to access public records.

Senate Bill 287 would put some teeth in the current Nevada public records law, which requires that all public records and books, except those specifically exempted as confidential by law, must be open for inspection and copying. Despite the clear language saying the law should be liberally interpreted various agencies have manufactured excuses for not complying or simply flouted the law and basically said: If you want it, sue us.

Meanwhile in North Carolina

Should SB287 become law, if a court determines a governmental entity or the person making the decision on behalf of the governmental entity wrongly denies a records request, the requester may be awarded a civil penalty of not less than $1,000 or more than $250,000 per offense from the agency or the responsible party or both.

Some lawmakers and public officials, of course, are blanching at the $250,000 threat, but there should be room for compromise.

Richard Karpel, executive director of the Nevada Press Association, recently commented, “SB287 represents a real opportunity to enact public-records reform in Nevada. Among many other helpful provisions, SB287 would establish civil penalties for government officials who fail to comply with the Public Records Act … limit the ability of local governments and state agencies to charge excessive fees for records requests; and require government workers to help requesters focus their requests to get the information they are seeking.”

Karpel noted the press association and other members of the newly formed Right to Know Nevada testified in support of the bill in early April during a Senate Government Affairs Committee meeting.

“An army of government lobbyists lined up to testify against it,” Karpel said but the bill remains extant and is being shepherded by lawmakers sympathetic to the cause.

He said the press association is participating in a working group, which includes both supporters and opponents of the bill, which is trying to address concerns raised during the hearing.

Though opponents have attempted to gut the bill and add sweeping exemptions to the public records law, Karpel said, “Fortunately, there is a real desire among many lawmakers to pass a public records bill this session. That includes Gov. (Steve) Sisolak, who commented on his support for government transparency and the need to ensure there are ‘repercussions’ for foot-dragging state agencies in (a) recent interview with the (Las Vegas) Review Journal. So we’re hopeful we can get SB287 to the finish line before the session ends in June.”

On the obverse side of the coin is Senate Bill 224, which would exempt from the public records law the names of those who are drawing taxpayer funded pensions from the Public Employees’ Retirement System.

SB224 narrowly passed in the state Senate a couple of weeks ago on a vote of 11-10 with two Democrats joining all eight Republicans in opposing it.

State Sen. Pete Goicoechea, a Eureka Republican, said he opposed the bill because the pensions are taxpayer funded. “The people who are paying those funds have the right to know the name and the amount,” he was quoted as saying at the time. “I believe the public does have the right to know who it is and how much they are benefiting.”

Proponents of the bill have argued pensioners could be affected by identity theft, though they’ve not sighted a single instance of this occurring. Opponents argue the release of the names can help detect abuse of the system.

A tip to California’s fraud hotline once resulted in its pension system recovering more than $200,000. In a statement the California public employee pension system praised “the great value of the public’s assistance in CalPERS’ efforts to protect the state pension system from fraud, waste, and abuse.”

In another case a Los Angeles television station discovered that a police officer who was drawing a disability pension from one city was working full-time as a police officer for another agency.

These abuses will be impossible to detect should SB224 pass and become law.

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.

Editorial: Nevada court rightly upholds public right to know

The Nevada Supreme Court has made it clear that public officials cannot skirt the state public records law by using privately owned electronic devices to conduct the public’s business.

This past week the court unanimously overturned a lower court ruling that rejected a request for records from Lyon County commissioners because those records were not stored on devices owned by the county. The county conceded that public business was indeed conducted using personal phones and email addresses. The county website even lists those phone numbers and email addresses as the commissioners’ contact information.

“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,” wrote Justice Michael Cherry, author of the opinion.

The Nevada Public Records Act (NPRA) states that, unless otherwise specifically exempted by law, “all public books and public records of a governmental entity must be open at all times during office hours to inspection by any person, and may be fully copied or an abstract or memorandum may be prepared from those public books and public records.”

Cherry further clarified, “In light of these requirements, (NPRA) cannot be read as limiting public records to those that are physically maintained at a government location or on a government server and are immediately accessible to the public during the business hours of that governmental entity. Such an interpretation would render … (the law) meaningless, as the records of private entities rendering public services would not necessarily be stored at the government office, and providing a time frame for resolving a records request would be unnecessary if records were required to be immediately produced for inspection at that location.”

Barry Smith, executive director of the Nevada Press Association, called the ruling important and substantial.

“If it had gone the other way, it would have created a gaping loophole in the law,” Smith said. “During oral arguments, justices asked the right questions. Essentially, they wondered, ‘How could the open-records law work if public officials could simply avoid it by using their personal devices?’”

Smith noted that John Marshall, the attorney for Lyon County citizens seeking the records, had a good analogy. “He said it would be like an official typing up a county document on his own typewriter at home and storing it in his personal filing cabinet. The principle remains the same. If it was public business, then it was a public document,” Smith explained.

Nevada Policy Research Institute Transparency Director Robert Fellner issued a statement saying, “In finding that public officials cannot hide their activities by simply conducting government business on personal devices, the Court reinforces the mandate within Nevada’s Public Records Law that it ‘be construed liberally to carry out [the] important purpose’ of a transparent and open government.”

In order for the public to properly evaluate the conduct of their elected and appointed officials, they must be able to see, hear and read what those officials are doing, why they are doing it, how they are doing it and for whom.

In this particular case Lyon County commissioners had rejected a zoning request for an industrial development, but later reversed themselves. Citizens filed a public records request seeking access to communications about the zoning matter whether contained on public or private devices.

Cherry’s opinion made it abundantly clear that public business must be transparent, writing, “We conclude that the NPRA does not categorically exempt public records maintained on private devices or servers from disclosure. To withhold a public record from disclosure, the government entity must present, with particularity, the grounds on which a given public record is exempt.”

We applaud the court for again upholding the public’s right to know.

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.

Bill would protect some student journalists

Some legislation just shouldn’t be necessary, but common sense is so rare.

This past week the Senate Committee on Education forwarded to the full Senate Senate Bill 420, which is being described as the Nevada version of New Voices legislation, which requires schools to draft policies to protect student journalists and student publications from censorship and punishment for publication, according to the Nevada Press Association.

The bill adds this language to the law: “The board of trustees of each school district, the governing body of each charter school and the governing body of each university school for profoundly gifted pupils shall adopt a written policy for pupil publications which: (a) Establishes reasonable provisions governing the time, place and manner for the distribution of pupil publications; and (b) Protects the right of expression described in subsection 1 for pupils working on pupil publications as journalists in their determination of the news, opinions, feature content, advertising content and other content of pupil publications.”

I wrote about a student censorship effort that took place in 2010, when a choir teacher at the Churchill County High School sued a student journalist at the school’s student newspaper for writing an article — that was actually printed in the Lahontan Valley News, the community newspaper — saying parents were upset that the teacher withheld certain students’ audition tapes from a state musical competition. The case was thrown out with the judge citing the state’s anti-SLAPP (Strategic Lawsuit Against Public Participation) statute in effect at the time.

Barry Smith, executive director of the Nevada Press Association, said at the time, “Anti-SLAPP statutes are important to protect free speech, because sometimes people sue just to silence their critics.”

Efforts to repeal the anti-SLAPP law have been unsuccessful so far.

But the law of the land for students is found in Hazelwood School District v. Kuhlmeier, in which the U.S. Supreme Court held in 1988: “A school need not tolerate student speech that is inconsistent with its basic educational mission, even though the government could not censor similar speech outside the school.”

Former Fallon student Lauren Draper, who penned the choir teacher story, testified for SB420.

“Less than six months from graduating Churchill County High School, I found myself terrified,” she told legislators, according to NPA’s account. “After I sought and reported the truth about choir students’ audition tapes  being withheld from a statewide competition, I found myself frightened and confused about whether I had made the right decision in writing the article. I followed the code of ethics and made no libelous claims, yet I felt guilty and ashamed of reporting the truth. I was shamed by teachers I had respected and was called a ‘zealous child’ by the co-chair of the Churchill County Educators Association.”

Since Hazelwood schools have too often used censorship to protect administrators from being embarrassed by student journalists rather than protecting the “educational mission.”

 

Attorneys gone wild! Bill would eviscerate Nevada’s strong anti-SLAPP law

In 2013 the Nevada Legislature passed a strong anti-SLAPP law that was called the gold standard of such laws.

SLAPP stands for Strategic Lawsuit Against Public Participation and is generally defined as vexatious litigation solely designed to squelch free speech under the burden of expensive, tedious and lengthy court wrangling.

But Senate Bill 444 seeks to pull its teeth.

The bill was proffered by Wynn Resorts, whose owner has filed a few defamation suits over the years. It has already passed out of the Senate Judiciary Committee and the full Senate unanimously.

I wrote about the anti-SLAPP law in 2010, when a choir teacher at the Churchill County High School sued a student journalist at the school’s student newspaper for writing an article saying parents were upset that she withheld certain students’ audition tapes from a state musical competition. The case was thrown out with the judge citing the anti-SLAPP statute in effect at the time.

Today Review-Journal columnist John L. Smith and capital bureau reporter Sean Whaley both wrote about the SB444, scooping their former editor who filed his newspaper column on this bill over the week and which will be printed this week and a version posted here.

Mitchell Langberg, a Wynn attorney, testified in favor of the bill on April 6. There was no opposition. Langberg said the 2013 version of the law was too broad and too limiting on plaintiffs, such as his client, who lost a defamation case in California because of its anti-SLAPP law, though Wynn did win a defamation suit against the producer of the “Girls Gone Wild” videos.

Wynn also lost a 2001 defamation suit against columnist Smith, but Smith was not awarded costs and attorney fees, which are to be awarded under the current anti-SLAPP law.

SB444 eviscerates the level of proof a plaintiff must show to have the anti-SLAPP motion dismissed. Currently a plaintiff must show “clear and convincing evidence” of a probability prevailing in the suit. SB444 reduces this to “prima facie evidence,” which means the allegations are presumed to be true until proven false, completely shifting the burden of proof.

Marc Randazza, who helped draft the 2013 anti-SLAPP update, calls SB444 “a paragon of sleaze. It starts off with preamble statements that make it seem like it is there to protect freedom of expression, but once you read it, you realize that whoever drafted this must have done so with the clear intent of destroying the Anti-SLAPP law.”

Whaley quoted Barry Smith, executive director of the Nevada Press Association, as saying, “Anti-SLAPP statutes are important to protect free speech, because sometimes people sue just to silence their critics. After 2013, Nevada had one of the strongest anti-SLAPP laws in the country. SB444 would weaken it substantially.”

He quoted his newspaper’s in-house attorney, Mark Hinueber, as saying, “SB 444 seems to be a solution in search of a problem that doesn’t exist. The current statute, as amended in the last legislative session, balances competing interests and should not be altered.”

SB444 is scheduled to be heard by the Assembly Judiciary Committee Friday morning. Perhaps there will be opposition this time.

Look for my column on this topic later in the week.

Here is Langberg’s testimony:

 

 

Newspaper contest reveals some interesting facts about judgment

It is heartening to see the good work of good people recognized by their peers. It is equally heartening to see the bad judgment of incompetent people on display.

Vin Suprynowicz from a “few” years ago

That’s how you can interpret one aspect of the Nevada Press Association 2013 Better Newspaper Contest. Of course, the first place for column writing in urban newspapers went to the Las Vegas Review-Journal’s John L. Smith, as it often does. He is prolific, insightful and a word craftsman with a subtle sense of humor. But second place in this category went to Vin Suprynowicz, who the R-J brain trust summarily canned in May for no reason I’ve ever been able to ascertain.

Vin’s specific award-winning columns were: “Putting county’s last cattle rancher out of business”; “Caught in the maze: Las Vegas businessman gets no help from pols”; “Shutting down small business — again”; “Clowns to the left of us, jokers to the right …”

Vin pulled no punches in his columns and drew on an encyclopedic knowledge of history and politics. You can still read an occasional musing and buy his books at his website.

Speaking of columns and incompetence, Brian Greenspun today pens another of his lexicon-bending screeds crowing about the number of awards the Las Vegas Sun won in the NPA contest and attempting to make the case that “competition” is good for the news biz.

Yes, the Sun deservedly won three times as many first place awards in this contest as the R-J, but it is not by any stretch of the definition “competition” when the subscriber has no choice as to which newspaper is delivered in the driveway. That competition ended more than two decades ago when the two papers entered into a joint operating agreement (JOA) in which the R-J handled all business and printing and advertising functions and the Sun had only a newsroom. Except for the Newspaper Preservation Act that would have violated anti-trust law.

For several years the Sun was a separate afternoon paper, but it kept failing. In 2005 the JOA was renegotiated and the Sun became a section in the morning paper.

Greenspun notes in his column that his brother and sisters are trying to renegotiate the JOA again and end the Sun. “In what some might call a quixotic adventure into the federal courts to save the agreement (I call it absolutely essential), there has been a simplistic reference to the proposed end to the Sun newspaper as just a question of money. The R-J says it costs money to publish the Sun and most of the owners of the Sun say they want money more than they want the Sun,” he writes.

At the end he makes and impassioned appeal, “It is true that even profit-making businesses in our free enterprise system will wither and die at the hands of monopolists. If we extend those monopolies to the news business it is no less true and far more dangerous because there is something much more precious than a profit hanging in the balance.”

The current arrangement does preserve two newspaper voices, but it is nonetheless a monopoly now.

Left to their own devices, perhaps the management of the R-J could manage to allow the paper to wither and die, but the free press should not be propped up by any branch of government, legislative or judicial.

(By the way, my Ely Times column won a second place in its circulation category.)