How to fix it

Now that I’ve vented my frustrations with the Legislature’s refusal to release records, I have some suggestions for how to fix it.

In fact, the Legislature can make itself far more accountable on both records and meetings without sacrificing its authority to make its own rules and live by only its rules.

How?

Make some rules. Then live by them.

Each session, each house of the Legislature adopts rules for how it is going to proceed. The Senate and Assembly say how they will meet, how they will hear and process bills, and all the other necessary protocols.

You’ll see right on Page 3 that the Nevada Legislature does, indeed, have open meetings.

The Senate’s rule spells out the exemption to hear about misconduct, competence, etc.:

One problem is that these rules are pretty slim compared with the actual Open Meeting Law in NRS241. A much bigger problem is the inevitability that the Senate and Assembly will eventually suspend their rules during the session because they become inconvenient.

So far, in my experience, nobody has shut down committee meetings — because the Constitution prevents the Legislature from closing the doors — but there are plenty of complaints each session that somebody or another isn’t playing fair.

• Notice of meetings.
• Opportunity for the public to speak.
• Minutes.
• Availability of documents related to the meeting.

These are the kinds of pesky details in the Open Meeting Law the Legislature doesn’t want to deal with, especially during a 120-day session.

I’ve often said there are trade-offs with the abbreviated sessions, and most of us are all too glad to see a tight calendar and businesslike atmosphere.

But the Legislature’s apparent ability to wave a magic wand and make all its rules go away — or, as argued by its lawyers, abide by rules that have never been written down — create an atmosphere of chaos during each session’s final days. It’s a situation ripe for abuse and treachery, and sometimes the worst instincts of legislators, lobbyists and even staff take over.

So what can be done? Write a statute called the Legislative Open Meeting Law and set some minimum standards — that everybody knows, that level the playing field and that won’t disappear like a puff of smoke.

Is 24 hours in advance too long to promise when scheduling hearings? Is 12 hours?

Must bills and amendments be available somewhere before they’re heard and voted on?

What guarantee does the public have that we can speak at a hearing on a bill?

The same arguments can be made about open records.

The reason there is no definition of “public records” in statute — the only state without one — is because the Legislature has never adopted one. To be fair, some open-government advocates are hesitant about getting one, because they fear the Legislature will make it too restrictive.

Nevertheless, that’s no reason to avoid the subject. Language should be proposed, debated and adopted. The alternative is a maze of Nevada Supreme Court rules that everybody interprets to their own benefit — until another case goes to the court and we get another clarification.

I think the court would like some guidance too.

In truth, there is a definition of records in the Nevada Public Records Act Manual, adopted in 2014 by the State Library and Archives because, well, they couldn’t wait on the Legislature forever. It exists in Nevada Administrative Code which, if you ask a court, means it’s just as good as a statute.

NAC 239.705 “Official record” “public record” or “record” means information created or received by an agency of the Executive Department or the Nevada System of Higher Education under authority of law, regulation or other legal mandate or in connection with the transaction of public business that is maintained by the agency or the Nevada System of Higher Education, or its legitimate successor, as evidence of the organization, functions, policies, decisions, procedures, operations or other activities of the agency or the Nevada System of Higher Education, including, without limitation, all papers, maps, photographs, financial statements, statistical tabulations, recorded media and other documentary materials, regardless of physical form or characteristics.

Supreme Court cleans up

Actually, the Nevada Supreme Court itself undertook a multi-year effort to clean up its rules on what documents and evidence can be released to the public. I was on the commission headed by Justice James Hardesty that worked its way through all sorts of sticky subjects regarding access to court records, standardizing a hodgepodge of practices throughout the state that previously had been left to individual courts and judges.

So two of the three branches have a decent handle on what’s expected when somebody requests a record.

The Legislature, on the other hand, has pretty much slammed the door.

(It may not recognize the open-records statute, but it certainly knows an exemption when it sees one. The free pass it handed itself with AB496 was the 426th exemption or exception to the records law. You can see them in a nice list in NRS239. I haven’t counted them in awhile, so I may be off.)

What I’m suggesting, again, is a statute aimed specifically at the legislative branch setting out some minimum standards for who, what, when, where and how public records will be released.

The current situation — I think fairly summarized as “You’ll get what we want to give you, and nothing more” — is a poor example to set by the people who make laws for others. Let’s start somewhere, 150 years into this thing called Nevada.

Can we get an ombudsman?

Down the road, what I’ve proposed and am working in small steps toward, is some kind of intermediary step in the whole records-requesting process.

Unlike the Open Meeting Law, which is enforced by the Attorney General’s Office, the Public Records Act contains no recourse but the courts. If a governmental body, either state or local, refuses your request for a record, all you can do is file a lawsuit.

That’s how we ended up with the web of court rulings that, in practice, can be mighty difficult to navigate.

For example, in Donrey v. Bradshaw, the Supreme Court talks about using a balancing test to decide whether it is more in the public’s interest to disclose documents or to conceal them.

Everybody on my side of the table interprets that to mean a court would balance the public’s interest. The Legislature, as well as many other government sorts, interprets it to mean they get to decide what’s in the public interest. If they think the public really doesn’t need to know then, well, sorry.

A more recent example is PERS v Reno Newspapers, where the court said the government doesn’t have to create a new document by compiling information from existing records. I’ve heard some pretty far-fetched arguments based on that ruling — including the Legislative Counsel Bureau’s recent response that, if I understand it correctly, tries to argue that having to search through legislators’ emails would constitute compiling a new document.

Anyway, I would like to see an ombudsman, like in Washington state, or a records review committee or an administrative law judge — somebody — who could be the go-to person before we have to file a lawsuit to obtain public records.

Could we at least try to make sense out of this?