2013 Legislature: Bill would improve public records access

The Assembly Government Affairs Committee was asked last week to support legislation both the Attorney General’s office and Nevada Press Association say will improve public access to government records and close some loopholes in the open meeting law.Barry Smith, executive director of the Nevada Press Association, told the panel that a Nevada Supreme Court ruling has left the door open to each state or local agency deciding whether a document is public. He said that defeats what he sees as clear statutory language stating that any documents not specifically made confidential are public.“The court talks about a balancing test,” he said referring to deciding whether “security or some other need for confidentiality outweighs the public’s right to know.”Smith said the press association reads the opinion as giving a court the power to make that decision. But many agencies believe it gives them that authority. “The Supreme Court balancing test gets interpreted basically that any administrator anywhere can conduct a balancing test,” he said. “The law clearly says unless there’s an exception, it’s an open record.”Assistant AG Keith Munro said that has resulted in some agencies asking people seeking public records, “who are you and what do you want this information for.”“We shouldn’t have that,” Munro said.But he said there still is some disagreement over how to resolve that so he, Smith and other parties involved in developing the bill decided to leave the issue out of the legislation this time and, instead, focus on changes they can agree to.Assembly Bill 31 with amendments, Munro said, is aimed at state agencies and attempts to provide a definition of public records and procedures for an agency to follow when some one asks for records. He said it also attempts to put all the exemptions making certain records confidential into a single place in statute so everyone can look at them.In doing that, Munro said, he was shocked at how many exemptions there are.“I had our staff print it out. It looks like a phone book,” he said holding up the 190-page document.He and Smith said the goal is to create a process and protocol for handling records requests. Munro said that includes possibly creating a sample form for both the request and the response.“We thought it would be a good idea try bring some order to the process,” Smith said.He said that’s especially important since, if the agency refuses to release requested records, the only recourse now is for the person seeking them to go to court. Once the bill passes, he said the idea would be to set up some sort of administrative review.“We could start looking at things like gong to the appeals division,” he said pointing out that, even if the hearing officer ruled a document confidential, it would at least assure those seeking access that an independent set of eyes had reviewed the request. He said he doesn’t think that would be too expensive or burdensome.“There wouldn’t be that many appeals,” Smith said.One of the agency officials supporting the legislation was Jim Wells, director of the Public Employee Benefits Program. He said coming from an agency that had to create its own process, he believes the bill would “provide us necessary tools without us having to create the wheel, so to speak.”Munro said the bill doesn’t deal with another thorny issue around public records — the cost of providing copies of records. There have been instances when agencies told people they can have the records but at a cost of thousands of dollars. Sen. Tick Segerblom, D-Las Vegas, has a measure in the upper house dealing with that issue.The open meeting bill, AB65, clarifies that quasi-judicial boards such as the Parole Board are subject to the open meeting law. But it provides some exceptions such as not mandating three days notice for parole hearings.Since the law requires public bodies to “deliberate” in public, Smith said it tries to better define deliberate. Like the records law, it also mandates that exceptions to the open meeting be listed in one place. Smith said that task is much easier since there are only 31 exceptions to the open meeting law.It says agencies, boards and commissions must make available before the meeting all public materials at no cost. In addition, it prohibits a member of a board or other body from naming some one to attend and vote in his place unless there is specific legal authority to do so.The committee took no action on either measure.