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A General Public Records Analysis Under the Nevada Public Records Act

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PUBLIC
RECORDS
UNDER THE NEVADA PUBLIC RECORDS ACT
BY SARAH A. BRADLEY, ESQ.
IT ? IS IC BL PU
The general premise under the NPRA is that all state agency records are public unless declared confidential by law (NRS 239.010). The NPRA favors transparency in government and open access to agency records, and the provisions of the NPRA must be construed liberally in order to maximize the public’s right of access to agency records.1 Under the NPRA, open government is the rule. The first consideration when handling a public records request is whether an express provision of law makes the requested document confidential. For many boards and commissions, an open investigation against a licensee and any related documents are confidential by statute unless and until the agency initiates disciplinary proceedings against the licensee (See NRS 641.090(4),(5)). The second consideration when PRACTICE TIP: handling a public one definition of confidential records request information is found in nRs is whether the 603A.040. this definition may requested record not be exhaustive because includes confidential some agencies have statutes information. If so, this indicating that a person’s home does not necessarily render the entire record address is confidential (See nRs 644.130(2)(b)).
state agencies frequently receive requests for public records, and public lawyers commonly provide guidance about how these records requests should be handled under the nevada Public Records Act (nPRA), codified in nRs 239. this article will summarize the statutory and case law in this area and provide a general framework for attorneys to advise their client agencies regarding the proper handling of public records. often, agencies will already have a clear understanding of the potential public policy or security concerns related to the release of the requested records. As attorneys, our job is often to educate our client agencies about the nPRA in general, while paying particular attention to the specific requirements of the nPRA and the potential risks of improperly denying a records request.
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confidential. Instead, this information should be redacted and the record provided to the requestor. The third consideration is whether an exception exists under the NPRA that justifies the withholding of the requested record. In Donrey of Nevada v. Bradshaw, 106 Nev. 630, 798 P.2d 144 (1990), the Nevada Supreme Court adopted a “balancing test” to determine whether a record is confidential. This test involves balancing the agency’s public policy interest in withholding the document against the general policy in favor of open government. The court acknowledged that the following public policy concerns may justify the agency’s refusal to disclose requested records: 1. Pending or anticipated criminal proceeding, 2. Confidential sources or investigative techniques to protect, 3. A possibility of denying someone a fair trial, or 4. Jeopardy to law enforcement personnel. The balancing test articulated in Bradshaw was further discussed by the Nevada Supreme Court in DR Partners v. Board of County Commissioners of Las Vegas, 16 Nev. 616, 6 P.3d 465 (2000). The court considered whether the deliberative process privilege applied to the requested records and held that when the requested record is not explicitly made confidential by a statute, the balancing test in Bradshaw must be employed. The court held that
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“clearly” outweighs the public’s right for the deliberative process to apply and allow an to access, and the agency cannot agency to withhold requested records, the records PRACTICE TIP: meet this burden with hypothetical must be “predecisional” and “deliberative.” Any Withholding a requested concerns. limitation on the general disclosure requirements record under Bradshaw is the Once an agency receives a public of NRS 239.010 must be based upon a balancing exception. When in doubt, the records request,2 it must respond in or “weighing” of the agency’s interests in nonrecord should be provided disclosure against the general policy in favor of writing to records requests by not when requested and redacted open government and the requestor’s “fundamental later than the end of the fifth business if necessary to protect right” to access public records. The burden is upon day after the request is received confidential or proprietary the agency to explain why the records should not (NRS 239.0107). At this time, the be furnished, with specific evidence justifying the agency must allow the requestor to information. withholding of the records. inspect the record or, if the agency is In Reno Newspapers v. Sheriff, 126 Nev. ___, not able to make the record available 234 P.3d 922, 923 (2010), the Nevada Supreme Court again by the end of the fifth business day, state in writing when the looked at the NPRA and held that the identity of a holder of record will be available to the requestor for review. If the record a concealed firearms permit and records of any post-permit is not in the custody of the agency, the agency must provide the investigations, suspensions or revocations of such permits are requestor with written notice of that fact and provide the name public records subject to disclosure and that any confidential and address of the government agency that has custody of the information in the records should be redacted before disclosure. record, if known. The NPRA allows agencies to have a verbal The court also held that the legislature’s 2007 amendments to discussion with the requestor about the records request to clarify the NPRA affected the Bradshaw balancing test, requiring a or otherwise discuss the request. However, the final notification narrower interpretation of private or governmental interests pursuant to NRS 239.0107(1) about the status of the record must promoting nondisclosure to be weighed against the policy for be in writing. The agency should keep a copy of this notification an open and accessible government. The court indicated that for its records. the agency’s burden is to prove its interest in nondisclosure
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If the agency is not going to provide PRACTICE TIP: the requested record, talk to your client agency about the agency must the five-day requirement in nRs provide a written 239.0107(1) now to ensure that the response and a agency is aware of the timeline citation to statute or required and to avoid any future other legal authority making the record problems. in addition, the agency confidential (NRS should document in writing, e.g., 239.0107(d)). The by letter to the requestor, any agency generally verbal discussions that it has with must provide a log the requestor that clarify, narrow to the requestor or otherwise alter the original describing each records request. individual withheld record.3 This log should contain “a general factual description of each record withheld and a specific explanation for nondisclosure.”4 The explanation should include specific authority supporting the nondisclosure of the record and a statement stating why this authority supports the agency’s claim of confidentiality. “[A] string of citations to a boilerplate declaration of confidentiality” does not satisfy the agency’s requirements under the NPRA.5 Internal agency policies that do not have the force and effect of law do not constitute specific authority justifying withholding the requested record under the NPRA.
An agency may recover its actual costs in providing a copy of a public record to the requestor (NRS 239.052). Providing copies of public records to the public is deemed part of the agency’s regular duties. Thus, these costs generally may include only actual costs incurred in responding to PRACTICE TIP: the records request, such as those for toner, paper and postage, and A possible format for a log not employee time in responding when an agency withholds to the request, unless the request requested records may be is extraordinary. To recover its found in vaughn v. rosen, costs, the agency must prepare 484 F.2d 820 (D.C. Cir. and maintain a list of its fees for 1973), although the nevada providing public records, which supreme Court has not should be posted in a conspicuous adopted or required such place in each of its offices (NRS a format in nevada, and 239.052(3)).6 Should an agency this format may not be wish to waive a portion or all appropriate in every case. of its fee for providing records, the agency must adopt a written policy and post notice of this policy in a conspicuous place in each of its offices (NRS 239.052(2)). If a state agency decides not to disclose requested records and the issue is litigated and the agency loses, the requestor is entitled to recover costs and reasonable
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attorney’s fees in pursuing the court action (NRS 239.011). PRACTICE TIP: Thus, it is important that the encourage your client agency agency and its decision maker to develop a public records recognize that an incorrect policy now delineating its decision to withhold requested policy and procedure related to records may be costly. the handling of public records Finally, the NPRA provides requests, including its fees for immunity from damages for disclosure or refusal to disclose records requests. information as long as the public officer or employee is acting in good faith (NRS 239.012). If the agency and its decision maker discloses or fails to disclose requested information in “good faith,” even if the decision is later found to be incorrect, the agency and the decision maker are immune from liability for damages incurred by either the requestor or the person whom the information concerns.
1 NRS 239.001; Reno Newspapers, Inc. v. Jim Gibbons, Governor of the State of Nevada, 127 Nev. Adv. Op. 79, at 5 (2011) 2 It is important to note that the NPRA allows both written and oral public records requests NRS 239.0107(2). Thus, it is important
to ensure that the agency has appropriate procedures in place such that oral requests for records are logged and/or handled appropriately under the NPRA. 3 Gibbons, 127 Nev. Adv. Op. at 12. The agency may be exempt from providing a log to the requestor if the agency can demonstrate that the requestor has sufficient information to meaningfully contest the claim of confidentiality without a log. Id. 4 Id. at 13. 5 Id. at 16. 6 In lieu of posting the list of fees for providing public records request, the agency may post the location at which a list of each fee that the agency charges to provide a copy of a public record may be obtained.
PRACTICE TIP:
not all requested records should be released. it is important to ensure that the client agency understands there are potential risks in denying a records request and such requests should not be denied arbitrarily or without careful consideration and a solid legal position supporting the denial.
Sarah a. Bradley has been a Deputy Attorney General in the Office of the Attorney General in Carson City working with Boards and Commissions since June 2007. From August 2006 to June 2007, she clerked for the Honorable Dan L. Papez and the Honorable Steve L. Dobrescu in the Seventh Judicial District Court.
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