Home / Members / Reporters legal handbook / How to deal with closed records

How to deal with closed records

When you are denied access to what you believe should be a public record you should get and keep certain information:
1.) What precisely did you request? (The best record is a request letter, like one available here).
2.) When and where did you make the request?
3.) To whom did you make the request?
4.) Who responded to your request, when and where and in what format? (If the response was oral, ask for one in writing).
5.) What were you given in response to that request? (If you made several different requests ask the person providing documents to identify which materials respond to which request).
6.) To what documents were you refused access? (Try to obtain as specific a description as possible). On what basis has access to each such document or category of documents been refused? (Try to get the person refusing access to be as specific as possible).
7.) Are there any documents or files to which access could be given if privileged portions were removed? If so, will the person providing access to do or seek permission to do so? From whom do they need to obtain permission and what are the standards for granting it?
Complaining To The District Attorney
    The District Attorney of the county where a violation occurred has jurisdiction to try an open records violation. 
    There is not a great likelihood of action by a DA in many cases, because often the violator is a body which acts on advice of the District Attorney’s office. There are, however, some District Attorneys who understand the law and are willing to enforce it. In any case, it does no harm to ask.
How To Involve Counsel
    On occasion, when a District Attorney is unwilling to help you obtain records, the mere appearance of private counsel may help persuade the DA to become involved in order to avoid a law suit, or may convince the record holding body that the game’s not worth the candle.
    Check with your Editor or publisher. If you do not have counsel or do not wish to spend the money, contact the Nevada Press Association. NPA involvement, and a call from NPA counsel, often has an emetic effect on governments which releases documents previously held tightly within their innermost recesses.
Civil Law Suits To Obtain Records
    Under Nevada law, a person who has been denied access to a record may file a private lawsuit to require that it be provided. NRS §239.011. It should be preceded by a formal demand letter.
    In Nevada, there has been limited private litigation to enforce open records rights. That hesitancy was based largely on the expense of litigation and the generally unlimited litigation budget of potential governmental defendants. Nevada law now provides that a successful Plaintiff in an open records suit may be awarded costs and attorney’s fees. NRS §239.011. That change should go a long way to encourage the filing of necessary and justified law suits.
Despite that change, however, the litigation is still often expensive and protracted and comes with no guaranteed results. When you can convince the District Attorney to handle the case, you should strongly considering doing so.

About Barry Smith

Barry Smith is executive director of the Nevada Press Association. Before joining NPA, he was editor of the Nevada Appeal in Carson City and has been an editor, columnist and reporter.

Check Also

Glossary

Answer: A civil pleading in which a defendant admits, denies or otherwise responds to the …

Leave a Reply

Your email address will not be published. Required fields are marked *