Two years after an attempt to overhaul Nevada’s public records law died in the Democratic-controlled Legislature, a similar attempt faces uncertain prospects in the final week of the session.
SB287, an omnibus public records overhaul sponsored by Democratic state Sen. David Parks, remains in limbo in the Senate Finance Committee with no hearing scheduled. Meanwhile, two bills that would increase confidentiality in public records — for public retirees and for certain metadata collected by cities — are moving forward.
“It's really disappointing that it's so difficult, especially when we have such a robust preamble to our public records law,” ACLU lobbyist Holly Welborn said about efforts to increase transparency, pointing to a public records law that says it aims to “foster democratic principles” and “must be construed liberally to carry out this important purpose.”
Parks’ bill proposes making a number of changes to the state’s public records law including requiring an agency to tell a requester the earliest date and time after which it believes the records will be available, to make a reasonable effort to assist the requester in focusing a request so records can be produced in as timely a fashion as possible, and to provide the name of the person who made the decision about what action will be taken with regard to a records request.
It also would specify that the cost of producing records should only include the cost of ink toner, paper, media and postage and not any labor costs and that the records should be produced electronically unless otherwise requested.
The initial version of the SB287, which carried fines of $1,000 to $250,000 per offense, attracted strong pushback from government agencies. That included an opposition letter that was 12 pages long, plus exhibits, from the Las Vegas Metropolitan Police Department.
“It does not increase transparency. Instead, it burdens the taxpayer by inflicting penalties and immunizing the media from ever having to consider the costs of producing voluminous records,” the department wrote. “The bill burdens citizens who have privacy interests in the records we possess. This includes innocent victims of crime, who did not choose to be part of the criminal justice system.”
Welborn said that a compromise amendment to the legislation will require that fines paid as a result of noncompliance go to the State Library and Archives and would impose liabilities on someone who’s determined to be a nuisance requestor. It also drastically reduces the fine for non-compliance to $500 for a first offense.
“We thought we got the bill to a point where it should be palatable for the rest of the governmental entities,” Welborn said. “We're just hoping to get it past that Finance hurdle. We have a lot of coalition members coming together to figure out where that's going and to see if we can get it to the other side as soon as possible.”
Parks isn’t sure what’s going to happen with his bill, which was heard in the Senate Government Affairs Committee but then re-referred to Finance last month without recommendation.
“I'm hopeful that we'll have a hearing on it and move it out so we can get something passed this session,” Parks said. “Unfortunately, I'm not, this session, in part of the core inner circle, so I'm just waiting.”
Meanwhile, a bill that would close off more data to the public, SB388, got a hearing in the Senate Finance Committee on Monday. The bill proposes exempting certain personally identifiable information collected by government agencies, such as metadata, from the state’s public records law.
Proponents of the legislation argue that citizens who are incidentally caught up in data-gathering efforts by municipalities, for instance, shouldn’t have their private lives exposed for public consumption. Lobbyist Kelly Crompton testified that the city of Las Vegas has a Smart Cities initiative through which cars with special sensors — such as Audis — transmit data to city infrastructure that helps identify issues such as potholes in the road. The system identifies particular cars, and the city wants to keep those cars’ movements private.
But critics take issue with the bill’s language, including a portion that allows governments to declare information confidential if its release could cause embarrassment.
“The idea that government gets to use a balancing test to decide whether someone is going to be comfortable or uncomfortable or embarrassed or uneasy or whatever other ridiculous words are in there flies directly in the face of what public records are about,” said Republican Sen. Ben Kieckhefer.
Democratic Sen. Mo Denis, the bill sponsor, said he’s working to narrow the language.
“I’ve got an amendment coming. It’s going to make the statement that it only applies to Smart City data,” he said. “Really all we’re talking about is the metadata.”
Welborn said that the amendment alleviates some of the concerns the ACLU previously had about the legislation.
“We think consumers should have more privacy rights in that regard,” Welborn said. “But it was very scary the way that it came out and was introduced.”
Another bill that has made it through the legislative process is SB224, a measure sponsored by Democratic Sen. Julia Ratti that adds more confidentiality to records about the Public Employees Retirement System (PERS). The bill makes information about PERS participants generally confidential, but allows some exceptions.
Initially, the exceptions included an employee’s ID number, the years of service and their last employer — notably leaving the person’s name out. That drew outcry from groups including the Nevada Press Association.
“The names of those who receive government pensions are vital for detecting abusive practices like double dipping and fraudulent disability claims,” wrote press association head Richard Karpel. “And at a fundamental level the taxpayers who serve as the ultimate backstop to the system deserve to know whose retirement they are funding."
After some amendments, the bill now specifies that PERS members’ names and pension payouts are public, but information about their last employer and years of service are confidential.
The bill passed both houses on close votes and is now headed to Gov. Steve Sisolak’s desk.
Proponents are trying to apply pressure to get SB287 moving, issuing a press release on Monday calling for Senate Majority Leader Nicole Cannizzaro to ask for a vote. The measure hasn’t cleared its first committee vote and would still have to make it through the Assembly to pass.
“It does kind of seem like this could be a really great opportunity for leadership to show they are in favor of a transparent government, to strike that balance with some of the other things that are happening so we hope that that's what they decide to do,” Welborn said.