Nevada Press Association The best in Nevada journalism since 1924
by Richard Karpel
The Nevada Legislature has passed the halfway mark and several bills we’ve been watching closely are still alive. There are a few stinkers in there but we’ll focus again this month on two public records bills that would help make Nevada a more transparent state.
SB287 represents a real opportunity to enact public-records reform in Nevada. Among many other helpful provisions, SB287 would establish civil penalties for government officials who fail to comply with the Public Records Act (Nevada Revised Statutes Chapter 239); limit the ability of local governments and state agencies to charge excessive fees for records requests; and require government workers to help requesters focus their requests to get the information they are seeking.
Along with about a dozen other members of our Right to Know Nevada coalition, NPA testified in support of the bill during a four-hour hearing in the Senate Government Affairs Committee on April 3. An army of government lobbyists lined up to testify against it. Although the committee didn’t vote, SB287 was exempted from legislative deadlines that would have killed it and was referred by committee chair and bill sponsor Sen. David Parks (D-7) to the Senate Finance Committee, where it was assigned to a working group headed by the bipartisan team of Sen. Melanie Scheible (D-9) and Sen. Ben Kieckhefer (R-16).
Sen. Kieckhefer was both a reporter who made records requests (coincidentally, he worked in an office in the NPA building when he was employed by the Associated Press) and a public information officer who responded to such requests. Sen. Scheible is a smart, impressive young deputy district attorney with a keen interest in public records law. We couldn’t have asked for better leaders on this issue.
NPA is participating in the working group, which includes both supporters and opponents of the bill. The groups’ task is to address concerns with the bill that were raised during the hearing; the Senators will take the feedback and draft an amended version of the legislation.
We have already offered suggestions for potential amendments. Government representatives also submitted a suggested revision that completely deleted the original bill and added a new section that would create sweeping new exceptions to the Public Records Act. It appears they’re not ready to work with us yet to make Nevada more transparent!
Fortunately, there is a real desire among many lawmakers to pass a public records bill this session. That includes Gov. Sisolak, who commented on his support for government transparency and the need to ensure there are “repercussions” for foot-dragging state agencies in this recent interview with the Review-Journal. So we’re hopeful we can get SB287 to the finish line before the session ends in June.
As originally written, Assemblyman Skip Daly’s AB371 would have eliminated the Nevada Supreme Court’s so-called “balancing test” that it applied to determine whether a record is public or confidential. Agencies have used the test to balance the public policy interest in withholding a requested document – e.g., shielding a criminal proceeding, protecting confidential sources or investigative techniques, etc. — against the general policy in favor of open government. AB371 would have allowed records requests to be denied only when a specific exemption or exception is stipulated by statute or regulation.
The problem with the balancing test is it’s vague and can provide government officials with a convenient excuse for withholding records that by law should be released. Assemblyman Daly is well aware of its potential misuse in the public records process. As a union official, he had several requests denied by agencies that invoked the test.
On the other hand, he understands the gaps in our knowledge about how the public records law is implemented and how often the balancing test is deployed in good faith to withhold government information that could create harm if it was released. So after hearing horror stories from government representatives about the hell that would break loose if the balancing test was eliminated, Assemblyman Daly completely rewrote the bill. It now requires certain local governments and state agencies to collect information for a limited period about how they respond to records requests – including how often they deny requests as a result of the “balancing test”. After it was amended, AB371 was approved by a 31-9 vote in the Assembly.
NPA has worked with Assemblymen Daly on this important piece of legislation.
The public records battle in Nevada is presently fought by those whose perspective is limited to their own experience in the trenches. If AB371 passes, the data-collection effort it would mobilize would give the state its first snapshot of how the public records law is implemented and would provide all of us warriors with a few basic truths we can agree on.
That’s something worth fighting for.
