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At times on Wednesday in the Nevada Supreme Court, it sounded like three different cases were being argued.
All were about the attempt by Nevada Policy Research Institute to obtain information from Nevada’s Public Employee Retirement System on its payments to retired state workers. This has been going on for four years now, or maybe seven if you include the initial confrontation between PERS and the Reno Gazette-Journal. You can read the RGJ’s coverage of Wednesday’s hearing, as well as NPRI’s history of the dispute.
In front of the justices during oral argument, PERS attorney Adam Hosner-Henner said the case was all about the confidentiality of Nevada’s state retirees.
But Joseph Becker, attorney for NPRI, said it was a matter of what constitutes a public record.
And from the questions by justices Michael Douglas and James Hardesty, it sounded more like the issue was whether Nevada’s public record statute could be satisfied in some reasonable manner.
In the end, though, this may be headed back to district court in Carson City for some more evidence and clarification before it is decided — which could take some more years.
My take
Here’s my take on what I heard during the half-hour of arguments from both sides:
PERS has maintained that a statute protecting the confidentiality of its members’ files meant it didn’t have to release names and payments, among a few other pieces of information such as the length of service of the ex-state workers. It lost that argument to the Reno newspaper, but in the court ruling was a statement that PERS wasn’t required to create a new document to satisfy a public-records request.
So PERS changed how it compiled information, and thus turned down NPRI’s request for the same information.
Spirit of the law
It’s been accused of changing its report expressly so it wouldn’t have to comply with the records request — something Justice Douglas alluded to on Wednesday when he said PERS seemed to “have gone out of its way to violate the spirit of the law.”
Hosmer-Henner shot back that it was the court who had deviated from the spirit of the law, arguing that the Legislature intended for the members’ files to remain confidential. (I don’t think that’s an accurate representation of the situation, though. The statute was adopted to prevent an employee from digging through the actual file folders. It never contemplated making the names of ex-state employees a secret.)
The PERS attorney’s emphasis was on whether the system would have to create a new document to comply. Based on the Reno newspaper case, it wouldn’t.
“Likely every public agency believes it does not have a duty to create a new public document,” he said.
Becker, representing NPRI, pointed out that Nevada’s public-records law includes information stored on a computer. “The public record is what’s stored on the computer itself,” he said. “Everything in the database is confidential? There’s no way the confidentiality provision can be interpreted to mean that.”
$1,300
It would have cost PERS $1,300 to compile the information over the course of two days and merge two Excel spread sheets in order to provide the information sought by NPRI, according to both attorneys.
Hosmer-Henner said PERS never could figure out exactly what NPRI wanted, and Becker said PERS never offered to provide documents at any price.
That detail seemed to exasperate at least a couple of the Supreme Court justices.
Douglas asked if compiling or combining data meant they were creating a new document. “How do we get around that?” he wondered.
And Hardesty suggested both sides should have made clear in district court what it would have taken for PERS to comply with NPRI’s request. That’s why the case may be headed back to district court to sort out more of the details before the issues of confidentiality and extraction of computer data are determined.
