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.

 

 

 

Newspaper column: Let the public see the work of public servants

Next week is Sunshine Week, March 11-17. The annual observation was created by the American Society of News (formerly Newspaper) Editors to spotlight the importance of public access to government information in a democratic republic, allowing citizens to be the watchdogs over their elected and appointed representatives.

The sunshine label was derived from a quote by Justice Louis Brandeis, “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”

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.

Which brings us to the current tension between the right to know and the right to privacy.

Earlier this year a district court judge ruled in favor of a request from The Associated Press and the Las Vegas Review-Journal to obtain copies of the autopsies of the 58 victims of the Oct. 1 Route 91 country music show shooting. The judge did require that the names of the victims be redacted.

A few weeks later another judge, at the behest of the widow of off-duty police officer Charleston Hartfield who was killed at the concert, ruled that his autopsy report was private and demanded the news outlets return it. How they were to determine which one was his is unclear.

A three-justice panel of the Nevada Supreme Court quickly stepped in and basically ruled that once the cat’s out of the bag it can’t be put back. It left unsettled the question of whether autopsy reports are public records under the law in the first place.

The court opinion, penned by Justice Kris Pickering, relied on a U.S. Supreme Court ruling in a 1989 case involving a Florida newspaper called the Florida Star. The paper published the name of a rape victim, even though Florida law makes it “unlawful to ‘print, publish, or broadcast … in any instrument of mass communication’ the name of the victim of a sexual offense …”

That court ruling said the Star’s intern reporter lawfully copied the information from records made available by the local sheriff’s office and the paper could not be punished because the sheriff’s office failed to follow its own policy of redacting the names of rape victims.

Pickering wrote, “For purposes of our analysis we assume, without deciding, that the Hartfield Parties had a protectable privacy interest in preventing disclosure of Mr. Hartfield’s redacted autopsy report.” The key phrase is “without deciding.”

The question remains: Are records prepared by a public official using public funds to determine a public safety matter covered by the state’s strong public records law that states records are available to the public “unless otherwise declared by law to be confidential …”?

Back in 1982 then-Attorney General Richard Bryan issued a non-binding opinion that they are not, writing, “An autopsy protocol is a public record, but is not open to public inspection upon demand, because disclosure would be contrary to a strong public policy …”

That public policy was described as the expectation that “the secrets of a person’s body are a very private and confidential matter upon which any intrusion in the interest of public health or adjudication is narrowly circumscribed.”

But does that privacy expectation carry over beyond death and supersede the public’s right to observe how well their public servants are serving them?

The closest the state Constitution comes to addressing this question is when it states that victims of crimes are to be “treated with fairness and respect for his or her privacy and dignity” and defines a victim of a crime as including a deceased person’s family members.

All the Nevada high court panel did was say the media obtained the records legally and prior restraint would be unconstitutional. It did not say whether in the future the coroner could refuse to release autopsies.

We believe the courts or lawmakers should make a final determination in favor the public’s right to know and let the sun shine in.

It is analogous to the debate currently underway in Florida over what information should be made public about what law enforcement did prior to and during the tragic high school shooting that killed 17.

The public needs to see how well public officials are doing their jobs … or not.

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.

Nevada Supreme Court

Editorial: Legislators should not be able to hide from public scrutiny

“Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” 

         — Justice Louis Brandeis

This is Sunshine Week, created by the American Society of News Editors and the Reporters Committee to spotlight the importance of public access to government information in a democratic republic, allowing the citizens to be the watchdogs over their elected and appointed representatives.

To illustrate this issue for the public, The Associated Press asked for the official emails and calendars for four Nevada legislative leaders — Democratic Sen. Aaron Ford, Republican Sen. Michael Roberson, Republican Assembly Speaker John Hambrick and Republican Assemblywoman Irene Bustamante Adams — for the first week of February.

The legislative lawyers cited a litany of excuses for denying the request in its entirety, including the old claim that revealing behind-the-scenes communications would “chill legislative speech and debate because Legislators might censor their remarks or forgo them entirely to protect the privacy of their sources from being revealed.”

That is the old “deliberative process privilege” dodge that every newspaper editor and reporter with more than a week on the job has heard at one time or another.

But the deliberative process is precisely what the public needs to see, not just the outcome, but how it came to be — what argument prevailed and why, who influenced the decision and how. Did the best interests of the public prevail or those of some special interest group or contributor?

But the legislative lawyers said, with a straight face apparently, that releasing emails and calendars would “allow improper inquiries into the motivations of Legislators.” Precisely.

Under the Open Meeting Law, passed by these same lawmakers, it is illegal for any other public body to “deliberate toward a decision or take action” except during a meeting open to the public. It is illegal to meet in secret or even serially to escape public scrutiny.

The legislative lawyers also cited a bill passed in the closing hours of the 2015 legislative session that says immunity applies to every action lawmakers take “within the sphere of legitimate legislative activity” whether written, oral or otherwise.

Court rulings on the federal Freedom of Information Act have narrowly allowed a deliberative process exemption, but only for an agencies’ internal communication and only for “documents that are both predecisional and deliberative.” It does not apply to factual information contained therein.

Thus the blanket denial flies in the face of even this overly generous and onerous excuse for secrecy.

The AP news story offered this explanation for the rationale of its records request: “Without access to emails, calendars and other correspondence, constituents often don’t know why bills died, which lobbyists their representatives are spending the most time with and what bargains lawmakers cut to save certain bills and kill others. They can only find out if the lawmakers themselves voluntarily give up the information.”

If citizens are to judge their representatives at the ballot box, we need to know why and how decisions were made.

A version of this editorial appeared this past week in many 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. It ran as a column in the Elko Daily Free Press.

Nevada Legislature (R-J file photo)