The public and the media won another battle recently in Nevada, when the state’s Supreme Court ruled that the Nevada open records law should be expanded to allow the public access to logs of e-mails.
The Nevada Supreme Court ruled in favor of the Reno Gazette-Journal, which previously had been denied a request pursuant to the Nevada Public Records Act that asked for former Nevada Gov. Jim Gibbons to turn over 100 e-mails that spanned a six-month period during his tenure in office. The e-mails were sent from a state-issued account. The opinion overturned a U.S. District Court opinion that had granted the newspaper access to just six of the e-mails.
Chief Justice Nancy Saitta, who wrote the opinion, stated that under NPRA, the requester is at the very least entitled to a log that should contain “a general factual description of each withheld record and a specific explanation for nondisclosure.” The Nevada Supreme Court concluded that the log was required and that the district court judge erred in denying the request for the log.
The Nevada Legislature enacted the NPRA in order to ensure that all public books and records would remain open unless specifically declared by law to be confidential. Judge Saitta explained that the Legislature amended NRPA in 2007 to “provide that its provisions must be liberally construed to maximize the public’s right of access,” and “conversely, any limitations or restrictions on the public’s right of access must be narrowly construed.” Additionally, the burden fell on Gibbons to show that the records were confidential.
Nevada’s defining open records law case, Donrey of Nevada v. Bradshaw, 106 Nev. 630, 798 P.2d 144 (1990), established a “balancing test” for analyzing claims of confidentiality. The balancing test measures the public’s right to know against the individual’s right to privacy.
The test has been both a boon and a burden to Nevada media. Although the courts generally have applied the test liberally and overturned many denials for requests, some public entities employ the balancing test in an effort to push media outlets to litigate (and spend significant financial resources doing so) rather than give up the information without a fight.
This recent opinion is just one more victory for those seeking more transparent government in Nevada. This year the Nevada Legislature created an Open Meeting Law Task Force to make changes to the state’s Open Meeting Law. In addition to creating steeper penalties for those who violate the Open Meeting Law, the task force also sought to expand the definite of “reporter” to include citizen journalists and bloggers.
Read the Nevada Supreme Court’s complete opinion here.