NPRI calls for putting teeth into public records law

“So, sue me,” seems to be the attitude of so many in Nevada government agencies when they are asked to comply with the state’s public records law.

They have no skin in the game. They just hire expensive lawyers at taxpayer expense to fight the request.

Take, for example, Nevada Policy Research Institute’s lawsuit this week over being denied Clark County School District emails relating to a possible termination of a whistleblower who reported possible test falsification. The district claimed the emails contained confidential information and refused to release anything, even though the law clearly states:

“A governmental entity that has legal custody or control of a public book or record shall not deny a request made pursuant to subsection 1 to inspect or copy or receive a copy of a public book or record on the basis that the requested public book or record contains information that is confidential if the governmental entity can redact, delete, conceal or separate the confidential information from the information included in the public book or record that is not otherwise confidential.”

NPRI Policy Director Robert Fellner was quoted in a press release as saying, “Despite state law mandating government agencies to be fully transparent to the people they ostensibly serve, CCSD knows it can violate the law with impunity, secure in the knowledge that none of its officials will ever face any penalty for their deliberate lawbreaking.”

That is why NPRI is calling on the Nevada Legislature to impose penalties on those who defy the law. Makes sense doesn’t it?

The purpose of the public records law is so the voters can hold public officials accountable when they act in a manner not in their best interest.



Newspaper column: School district tries to obliterate public records law

The Clark County School District has filed a legal action with the state Supreme Court that, if successful, could render the state’s strong public records law nearly meaningless and deprive the citizens in every jurisdiction in the state access to public records that enable them to keep an eye on the actions of public officials.

The brief filed earlier this month appeals a judge’s decision to award attorney fees and court costs to the Las Vegas newspaper after it prevailed in district court in its demand for public records about an investigation into a school trustee accused of discriminating against school district employees — clearly the sort of information to which voters should be privy. The school district’s brief itself calls the matter “of statewide public importance.”

The district takes the absurd position that the Nevada Public Records Act of 1993  which states, “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 …” — is self-contradictory because what is clearly stated in one paragraph is negated three paragraphs later. 

In one section the law states, “If the requester prevails, the requester is entitled to recover his or her costs and reasonable attorney’s fees in the proceeding from the governmental entity whose officer has custody of the book or record.” This is to ensure that citizens are not driven into bankruptcy in fighting a public agency with endless access to taxpayer money and can be made whole in order to fight again another day. Once the court says something is a public record, it is a public record and should have been freely accessed all along, but for the intransigence of some usually nameless bureaucrat.

The district cites another section of law that reads, “A public officer or employee who acts in good faith in disclosing or refusing to disclose information and the employer of the public officer or employee are immune from liability for damages, either to the requester or to the person whom the information concerns.”

Clearly this was intended to protect employees and employers from liability for such things as harm to public reputation or release of trade secrets. Who is to say what is good or bad faith?

The district brief repeatedly calls on the court to construe “legislative intent,” yet the very cites from legislative records clearly show the legislators intended to grant costs to public records requestors who prevail in court, and immunity from damages was another topic entirely.

The brief quotes from legislative minutes from May 3, 1993, describing comments by then Nevada Press Association Executive Director Ande Engleman, who was clearly not a legislator, answering a question from Assembly Subcommittee on Government Affairs Chairman Rick Bennett as to whether taxpayers should cover the costs of “frivolous” suits. 

The minutes show Engleman responding, “Court costs and attorneys’ fees were granted only when it was a denial of what was clearly a public record [bad faith]. Therefore, she did not think there would be frivolous lawsuits.” The district attorneys helpfully bold-faced and italicized and added the “bad faith” in brackets, even though her remarks indicated there would be no costs awarded if the suit failed.

The brief for some inexplicable reason failed to include lawmaker Bennett’s “legislative intent” in the very next paragraph, “If an agency head truly withheld a record which should have been public, Mr. Bennett said he hoped the court would penalize the agency in some way by making them pay the costs.” Now that is legislative intent.

The school system’s attorneys repeatedly argue lawmakers intended the “good faith” immunity clause to negate the clear language that attorney fees and court case are to be awarded if a record was wrongly withheld — an absurdity. 

Neither does the brief pay any heed to subcommittee minutes from four days later in which the panel voted to add the word “reasonable” to the costs and fees section of the law and then immediately segued into a discussion of immunity for “good faith in disclosing or refusing to disclose” being “immune from liability for damage.”

Lawmakers clearly saw the two sections as not contradictory. Neither did District Court Judge Timothy Williams who determined there was no ambiguity between the two adjacent sections of the same law. Neither should the Nevada Supreme Court. 

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.


Judge again slaps down PERS for trying to hide retirement records from the public

A Carson City judge has slapped down the Nevada Public Employees’ Retirement System for refusing to release the names and pensions of 57,000 public retirees under the state public records law, according to The AP.

The Nevada Policy Research Institute sued PERS back in July for again refusing to release those records. The Reno newspaper successfully sued for those records in 2013.

District Judge James Wilson ruled Tuesday that the PERS claim that making these names public would subject the retirees to cybercrime was “hypothetical and speculative.”

After the 2013 ruling, PERS altered the way it kept records, claiming it only had records filed by using Social Security numbers, which are “non-disclosable” by law.

”By replacing names with ‘non-disclosable’ social security numbers in its actuarial record-keeping documents, PERS has attempted to circumvent the 2013 ruling of the Nevada Supreme Court requiring disclosure,” explained Joseph Becker, the director of NPRI’s Center for Justice and Constitutional Litigation at the time of the suit.

In 2015 NPRI requested retirement records to include on its website — a free resource for public-sector administrators and taxpayers interested in learning about the cost of public sector compensation.

The lawsuit itself argued the information was clearly subject to the public records law, which was intended to “foster democratic principles by providing members of the public with access to inspect and copy public books and records.”
Additionally, the suit noted that in 2015 state Supreme Court ruled: “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.

“Despite having the clear ability to provide the public with useful and complete records, PERS has deliberately subverted transparency by altering its record keeping, and refusing repeated requests for full disclosure,” NPRI and CJCL noted at the time.

Public records law would be eviscerated by state Senate bill

Senate Bill 28 would fold, spindle, mutilate and shred Nevada’s strong public records law.

Government agencies already can charge people who ask for public records the actual cost of providing those records, but SB28 defines “extraordinary use of its personnel or technological resources” to mean 30 minutes of public employee time or 25 pages of records. And the government agency can charge 50 cents a page, whether the records are provided on paper or electronically.

Image how much it would cost the Nevada Policy Research Institute to obtain the thousands of pages of government employee salaries and pension benefits? The cost would be prohibitive.

Why should an agency be able to charge someone who walks in with a thumb drive and asks that a record be uploaded to it?

The current law 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.”

Presumably, if some slow-poke public employee takes half an hour to find the public record being requested there would be a charge just to inspect the record.

SB28 incentivizes public employees to take their own sweet time.

Of course, the bill is being pushed by numerous local government agencies and by the Nevada League of Cities & Municipalities.

Victor Joecks, NPRI’s executive vice president, and the Nevada Press Association’s executive director, Barry Smith, both testified against the bill.

The Las Vegas newspaper editorialized on the bill, calling it the “Worst Bill of 2015.” It pointed out the records do not belong to the government entities, but are the records of the people whose tax money was spent to create them.

“Governments, and government employees, are merely their caretakers. Public documents are the work product of your tax dollars. And the only way you can verify whether governments are functioning efficiently, ethically and within the limits of the law is to have access to those records,” the editorial explains.

This bill would allow government agencies to waste money, engage in corruption, nepotism, favoritism, misfeasance and malfeasance with impunity, unless someone with deep pockets is willing to pay the tab.

The bill should be amended in such a way that “all” public records must be uploaded to the Internet in the metropolitan counties and that in the rural counties each agency must maintain a computer terminal with all the records available for inspection.

Even though the law says a public records request may not be denied because the record contains confidential information if the governmental entity can redact that confidential material, the agencies already often demand huge fees for doing the redaction.

Public records should not be co-mingled with confidential information in the first place. In fact, if the information is confidential, why does the government have to have it?