Rude shocks and Nevada’s ‘open records’ law

From the days of America's founding fathers, open government has been a fundamental principle of our republic. And during this week — Sunshine Week — supporters of open government across the nation are highlighting the importance and significance of open government.

The "people are the only censors of their governors," noted Thomas Jefferson, principal author of the Declaration of Independence and third president of the United States. And the way to ensure the good sense of the people, he said, was "to give them full information of their affairs through the channel of the public papers, and to contrive that those papers should penetrate the whole mass of the people."

However, not until President Lyndon B. Johnson signed the federal Freedom of Information Act into law on July 4, 1966, did the "public's right to know" gain effective legal status in the United States.

"This legislation springs from one of our most essential principles: A democracy works best when the people have all the information that the security of the nation permits. No one should be able to pull curtains of secrecy around decisions which can be revealed without injury to the public interest," said Johnson.

While the Freedom of Information Act is a federal law — applying to federal executive-branch agencies and outlining the mechanics of public disclosure — each of the 50 states has laws regarding public access to public records.

In Nevada, lawmakers' stated purpose of the public-records law, Nevada Revised Statute Chapter 239, "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 legislators further declared: "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."

NRS 239 also provides that, "All public books and public records of a governmental entity, the contents of which are not otherwise declared by law to be confidential, 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."

However, anyone thinking they could walk into a government office during business hours, request to inspect documents and then begin sifting quietly through records, would most likely be in for a rude shock.

Take, for example, a recent NPRI attempt to understand the nuances of legal billing at the University Medical Center of Southern Nevada. In September 2010, the Institute filed a public-records request for onsite inspection of monthly billings by one law firm under contract with UMC. Finally, in the first week of March 2011 — more than five months and many, many e-mails later — NPRI received photocopies of the records — in which all references to services rendered had been redacted.

The public records law says quite clearly that after a government entity receives a written record request, it must, by the end of the fifth business day, produce the records or provide a requester written notice of the date and time the records will be available for inspection, if it has legal custody of the records.

Furthermore, say the statutes, if an entity must deny inspection of a record or part thereof because it is confidential, it must provide the requester a written "citation to the specific statute or other legal authority that makes the public book or record, or a part thereof, confidential."

UMC did neither.                                                                                                                              

When asked to explain, Erik Pappa, director of communications for Clark County and UMC, offered the following statement:

UMC and Clark County remain committed to open, accountable government. We process thousands of requests for information from the public and the media each year and the vast majority of those are done expeditiously. The difficulties you experienced stem from a very unusual set of circumstances. Once your request was received by UMC, it was assigned to an employee who subsequently left for a position at another agency and there was inadequate follow-up on our part. We sincerely apologize for the delays you experienced. Additionally, there should have been communication to you about when you could expect to receive the requested documents. We apologize for that, as well. 

Some material was redacted as it involved matters of attorney-client privilege and confidential patient medical information.

Actually, it is not uncommon for months and months to pass before access to public records is provided — notwithstanding the provisions in state law. And "unusual" circumstances are frequently not the reason.

In mid-August 2010, NPRI asked the Nevada Department of Education for "all the AYP appeals and their dispositions for the Clark County School District for the 09-10 school year, along with the Excel reports you have provided in the past." (AYP appeals are requests from schools to be reclassified as having passed Average-Yearly-Progress requirements on the federal No Child Left Behind Act.)

While the department had routinely fulfilled this same request in the two previous years — for no cost — it was not until six weeks, two public-request forms and many, many e-mails later, that NDE provided the Excel reports requested. 

Even now, seven months later, the department continues to delay the release of the AYP appeal records. That's because NDE insists on inserting the phrase, "and supporting documentation" into the request — adding a superfluous 700 pages of other materials, for which the department then wants to bill. On multiple occasions, NPRI has clarified that it is not requesting the supporting documentation, and that it is requesting only the same categories of records NDE previously provided.

NDE also now wants to impose a $560 fee, but for what, exactly, the department has not said. Some evidence suggests that it may be for redaction of confidential information. But NPRI's requests that NDE provide clarification — including the legal authority to charge for redaction of an otherwise statutorily open document — have gone unanswered. 

Nevada public agencies, sources in the news media agree, regularly use similar cost-prohibitive fees to block the public's access to information. The fees demanded regularly run into the hundreds, thousands, and in some instances even the tens of thousands of dollars.

While no consensus appears to exist among those observers as to which public entity presents the most barriers, there is agreement that the Clark County School District is near the top.

CCSD's record in the area was discussed by e-mail with Dwight Jones, the district's new superintendent.

"I want the district to develop strong, respectful relationships with the media," he responded. "In our efforts to do so, I welcome opportunities to improve communications. I am committed to transparency, and am willing to own the good and bad, alike, and I count on the media for an objective presentation of the facts."

Jones said he's brought in a consultant to review the district's communications department and anticipates discussing the consultant's report at a future school-board meeting. 

The press is the primary medium through which the public learns of the goings-on in government. As suggested by Jefferson, "It is, therefore, the first shut up by those who fear the investigation of their actions."

For all the barriers that Nevada government agencies throw up to block access to government records, reporters from across Nevada do think that most agencies try to respond immediately and do work collaboratively to address requests to the mutual satisfaction of the parties.

Moreover, more Nevada agencies are making public records accessible online, allowing the public access 24 hours a day. While the effort is often still primitive — instructions and forms to request offline records are rarely available — at least it's a beginning.

Perhaps the Democratic leadership of the Nevada Legislature should add one provision to the state open-records law — a requirement that the following quotation from President Woodrow Wilson, framed, hang on the wall before every Nevada government official:

Wherever any public business is transacted, wherever plans affecting the public are laid, or enterprises touching the public welfare, comfort or convenience go forward, wherever political programs are formulated, or candidates agreed on — over that place a voice must speak, with the divine prerogative of a people's will, the words: "Let there be light."

Karen Gray is an education researcher at the Nevada Policy Research Institute. For more visit http://npri.org.