This article was originally published by Nevada Business Magazine.
Transparency is an essential part of a representative government; without it, some would rule while others would simply be ruled over.
This is why the federal government and every state in the nation has passed laws that explicitly address the public’s right to access government records and information. For more than 100 years, Nevada has had some form of public records law on the books.
And it’s only gotten better with time.
Currently, the law is emphatic in declaring the importance of ensuring public access to government records and contains numerous mandates for how government agencies must respond and provide access to these records.
Unfortunately, it has one glaring weak-spot: the lack of any penalties for government officials who choose to ignore it.
Thus, despite the clear mandate for government transparency in Nevada, an increasing number of government agencies are brazenly deciding the rules simply don’t apply to them.
In October, for example, the Nevada Policy Research Institute had to sue the Clark County School District after it refused to hand over emails necessary to verify a former employee’s allegation that she had been unlawfully terminated after reporting test falsification within the district.
CCSD’s total disregard for the law was on complete display in its denial, where it simultaneously asserted that the requested emails were “confidential personnel records” while also citing exemptions from the federal Freedom of Information Act — which, of course, applies exclusively to federal government agencies, not local school districts!
Even if the district was telling the truth about some of the emails being confidential or containing confidential information, the law still requires it to disclose the non-confidential portions of those emails. CCSD, however, refused to do even that.
Now, of course, the district will be defending its absurd denial in court — wasting valuable tax dollars that should have gone towards students and classrooms rather than keeping taxpayers in the dark.
Sadly, this isn’t the first time CCSD has stonewalled attempts to shed some light on potential abuses — nor is the district the only government agency willing to ignore the plain language of Nevada’s public records law.
The Public Employee Retirement System has twice gone to court for attempting to keep secret the payout amounts it makes to retired public-sector workers. Other agencies too have increasingly adopted a “well, let them sue” attitude in denying records requests from the public, resulting in watchdog groups, news outlets and the general public with no effective way to keep their eye on government’s activities.
And it’s not hard to see why this trend is continuing.
After all, even if a denied request ultimately goes to trial, it can take years before the records are finally released, as the government is more than willing to spend tax dollars pursuing every appeal and stall tactic available to them.
And when the court case is all over, what happens next? Well, the agency shells out more tax dollars to pay attorneys fees, requests a larger budget for the next biennium to make up for what it spent on litigation and generally returns to “business as usual” denying future requests.
No lasting penalties for the agency, no ongoing promise for more transparency and, most importantly, no accountability for the government employees who knowingly and deliberately decided to ignore the law and deny the records in the first place.
When we taxpayers violate the law — even mundane or minor laws — we face penalties and sanctions. From speed limits to property taxes, citizens and taxpayers face a litany of potential penalties for failing to adhere to the letter of the law.
So why should government officials be treated any different?
The solution to the culture of non-compliance spreading through Nevada governments is simple, bipartisan and critical to ensuring state law is enforced: The legislature needs only treat the public records law like every other law and include penalties for those who break it.
That is to say, courts must be allowed to hold the government official who made the determination to withhold the record, charge an exorbitant fee, or similarly obstruct access in a bad-faith manner personally liable for the prevailing requester’s fees.
Only then will Nevadans receive the transparent and open government that has been promised to them for over 100 years.