Public records requests from Nevada news outlets have led to changes in how Las Vegas police use deadly force, have prompted the ouster of its higher education chancellor, have revealed the causes of a destructive wildfire and have uncovered federal agents’ desire for posh accommodations at the Burning Man festival.
But in a hearing during Sunshine Week, an annual celebration of transparency in government, much of the testimony from local government agencies centered on how difficult it can be to comply with the requests.
Lawmakers are considering an ambitious overhaul of the state public records law through SB170, a bill backed by Democratic Sen. Tick Segerblom and the Nevada branch of the American Civil Liberties Union that seeks to standardize and speed up responses to records requests. The ACLU hearkened back to its experience trying to request the sex education policies of each of Nevada’s 17 school districts and getting widely divergent responses: from prompt responses to documents on a CD to no documents at all.
Here are highlights from the bill hearing on Wednesday:
The law requires government agencies to acknowledge within five days that they’ve received a public records request, but they can set their own deadlines for fulfilling it and there’s no mechanism to hold them accountable to their deadline. That means it could be months before a requester receives information. One of the school districts responding to the ACLU’s sex education data request took 18 months to provide the information, according to Tod Story, executive director of the ACLU of Nevada.
The bill would require agencies to fulfill a request within 15 business days after the request is received. If the agency gives additional notice to the requester that it needs more time, the deadline can be extended to 35 business days after the request was received. The agency could also tell the requester that their inquiry requires “extraordinary use” of government resources and indicate a date and time by which they could reasonably comply. If the agency doesn’t meet the deadlines, the requester can ask a court to order the agency to comply.
Las Vegas Metropolitan Police Department lawyer Charlotte Bible says her agency is already doing a good job responding to requests in a timely fashion and letting people know if the request could take unusually long. But she said many of the requests are time-consuming because the department has so many different databases and units and must also screen some requests for sensitive information. Adding the new deadlines would require the department to further monitor how long the requests are taking, rather than just attending to the requests themselves, Bible said.
Some agencies put hefty price tags on public records requests to discourage people from pursuing information.
The bill would bring Nevada law in line with federal Freedom of Information Act provisions that lay out six different considerations in granting a fee waiver. While for-profit entities that want records for commercial use could be asked to pay for any public information, anyone who wants the records for the “public benefit” — any noncommercial use — could get it for free unless it requires an “extraordinary use” of public resources. Nonprofits, educational groups and news reporters would fall in the “public benefit” category.
North Las Vegas Assistant City Manager Ryann Juden said he doesn’t want the city to subsidize private enterprises, and floated the idea that news outlets should be considered commercial enterprises rather than entities serving the public benefit.
“These newspapers are not being printed in convents in the evenings by nuns. They’re for-profit corporations,” he said. “When they put out these stories that they put out there, they sell ads. They attract eyeballs.”
He argued that if the city is being a good steward of public money, it needs to be able to recoup the costs of fulfilling records requests.
Sometimes it does take extensive staff time to comply with a records request, but there’s no clear definition of what qualifies as “extraordinary use” of government resources and would trigger a price tag for the request. Agencies are allowed to charge the requester the actual costs of assembling the record.
ACLU lobbyist Holly Welborn conceded there will probably be no agreement about how many hours a government agency should be expect to put in on a request at no charge before the request becomes “extraordinary use.” Agencies come in different sizes and have different staffing levels. She pointed to case law in which the Eighth Judicial District Court in Las Vegas found three hours of staff time wasn’t “extraordinary” for complying with a request.
Las Vegas police said they don’t want public records requests to divert too many resources from their normal operations. Bible pointed to a request that required pulling police shooting records from 20 years ago. The request took six to eight months to fulfill and pulled an employee off regular duty; the agency negotiated with the requester and charged about $10,000.
Government agencies are concerned they’ll be inundated with excessive, overly broad and sometimes malicious requests that bog down the process.
While there’s no protection against nuisance requests in the existing law, the bill proposes adding some guidance for governments. The provision, modeled after California statute, directs the agency to communicate with the requester to help narrow their request into something doable before saying “no.”
Henderson officials said they recently got a request for all the emails of a certain employee who deals with sensitive information. That encompassed about 25,000 emails, and would require lawyers and staff to go through all the emails and attachments to screen them for confidential information and redact the sensitive content.
“The amendments aren’t addressing the technical realities of today’s public records requests,” said assistant city attorney Brandon Kemble.
Nevada lawmakers have exempted themselves from the public records law that they impose on other executive agencies, and its lawyers contend the Legislature is not even a “governmental entity” for purposes of the law. People requesting lawmakers’ calendars or official emails are told there’s no way they can get them.
Welborn says lawmakers should repeal statutes that give them blanket protection from public records requests, and only give exceptions for certain “privileged” or sensitive information. She pointed to the Tennessee Legislature, which reserves the right to keep some information private but has committed to make a good faith effort to respond to public records requests. In Oregon, members of the public can make information requests about the activity from the session, but not until 15 days after adjournment.
The Legislature’s legal counsel says lawmakers don’t have the authority to make their emails a public record, according to Democratic Sen. Tick Segerblom.
“From my perspective, that’s out of the bill,” he said.
Welborn said she disagrees and believes lawmakers do have that authority, but conceded that the change probably won’t survive in the bill.
This story was updated at 9:45 a.m. on March 16, 2017 to correct the identity of the representative who spoke on behalf of the City of Henderson.