Senate bill would make those who wrongly deny public records requests pay for the effrontery

It is time to put some teeth into Nevada’s public records law.

Government agencies have been flouting the law for years, refusing to turn over anything that might prove embarrassing to the agency or its bosses. The police refuse to release records. The school districts conduct investigations and refuse to release the results. One coroner refuses to release autopsies. The public employee pension system refuses to release the names and pensions of pensioners. Etc., etc., et forever cetera. They hire lawyers and use taxpayer money to fight and pay the costs of requesters when they lose, then shrug it off and do it all over again.

Now comes Senate Bill 287. It would put some skin in the game for the agencies and the people who wrongly deny public records requests.

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.

That part about making the responsible party pay up should grease a few skids. Perhaps it also should specify that the agency may not reimburse the responsible party for the civil penalty.

A newly formed group called Right to Know Nevada sent out a press release via email on Friday supporting SB287.

Maggie McLetchie, an attorney who has represented the Las Vegas newspaper in a number of records lawsuits, was quoted as saying, “By ensuring that existing law is actually followed, Senator (David) Parks’ bill would reduce the need for expensive public records litigation, which is a good thing. The goal is to eliminate the need for costly lawsuits and to simply have the government be fully transparent and accountable to the people it serves, which is what state law already requires.”

ACLU of Nevada Executive Director Tod Story said, “While existing law already requires a response within 5 business days, we have experienced vastly different response times, not too mention fees, from governments across the state in response to the identical request. In fact, some agencies simply never responded to our request at all.”



Want to pry a secret out of government? Be prepared to pay up

You’d think that after four decades as a newspaper editor — butting heads with bureaucrats in four states over open meetings, public records and public notices — I would know better. But any time I see something stamped secret, confidential or redacted, reflexively the hairs stand up on the back of my neck and the canine teeth are bared.

So when I read in mid-May that a company called Energenic was about to begin operation of an electricity generating plant fueled by landfill gas at the Apex landfill and would sell the power to NV Energy at an undisclosed price, I knew this called for a senseless and futile gesture and I was just the one to do it — emphasis on senseless and futile.

Redacted page from contract with NV Energy to sell ‘green’ power

And that, gentle reader, is the subject of today’s column — available online at The Ely Times website and in print at various fine weekly newspapers.

When you look up that power contract on the Public Utility Commission’s website — not that anyone who is actually a reasonably compensated newspaper reporter ever would, mind you — you find there are black bars obscuring the rate per megawatt-hour. So I began contacting various people at the PUC to find out how to get the pricing information for the Energenic contract.

I was directed to instructions on how to file a petition with the PUC to request that the confidentiality decision be reversed. I was told there would be a $50 filing fee. That’s a bit of scratch to scratch the curiosity itch, but I figured OK.

I wrote up the paperwork and was assigned docket No. 12-06006 for my challenge to docket No. 09-08020.

I cited the public records law chapter and verse. I cited court case rulings. I argued the public’s right to know how such contracts would impact their future power bills. I thumped the table:

My understanding is that at the time the contract was approved by the commission Nevada Power requested confidential treatment of the pricing information on the grounds the release would undermine future negotiations of renewable contracts. This argument would appear to be now invalid since the commission has subsequently disallowed confidentiality for pricing information in numerous renewable contracts. (See a few examples here.)

Additionally, though NRS 703.190 allows the commission to redact from public records “trade secret or confidential commercial information,” the price of a commodity, in this electric power, hardly seems to qualify under either definition.

The legislative intent under NRS 230, the public records law is quite clear when in declares 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.” The courts have frequently cited the language of the law that the “provisions of this chapter must be construed liberally to carry out this important purpose” and “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.”

Such a balancing test clearly would give greater weight to voters and ratepayers being able to judge for themselves the efficacy of policies and practices of their regulated utility, its regulators and the lawmakers — who imposed a renewable portfolio standard of 25 percent power from renewables by 2025, no matter the cost — rather than some vague concern that the release of price information might somehow hamper future contract negotiations without any actual evidence to support such a contention.

Then, I waited.

A little more than a week ago, whilst hiking the no-cellular-service-whatsoever trails and streams in Zion National Park with the grandchildren, I began to get voicemail messages that I would listen to each evening in Springdale. Apparently I had been sent a letter informing me that the utility commission was going to hear my petition, but first I had to pay for publication of a newspaper public notice. That was the first I heard of that. No one had mentioned an obscure sentence in the 60,000-word Nevada Administrative Code Chapter 703 that says “public notice to be published in the appropriate newspapers … petitioner shall timely pay the cost of the publication.” Timely means upfront.

One of the messages was from a lady at the Las Vegas Review-Journal informing me that I needed to pony up $277.84 prior to publication in that one paper alone. The deadline was Friday.

After calling from a park bench outside a ranger station and again from a curb outside a pizza joint on a sweltering Friday afternoon, I finally managed to call the whole thing off. I’m still out the 50 bucks.

So, if you get the itch to challenge the bureaucracy, remember, like in China, the executioner makes you pay for the bullet. When did you ever pay $277.84 for a bullet?

Along the banks of the Virgin River in Zion where cell phone service doesn’t exist and the bureaucrats don’t care, because they are on a deadline and you must pay the executioner — upfront.