Transparency bill aims to end agency breaches of public records laws

Seth Morrison tried to remain realistic when he saw a message in his inbox from the Metropolitan Police Department in early April. More than two months prior, the 68-year-old retiree had written the department a request under the Nevada Public Records Act, seeking emails about its international police training.

Morrison moved to Las Vegas from the Northeast three years ago to spend his golden years in the city’s sunny, warm climate. Civic-minded, he became involved in his new community, volunteering with political campaigns and joining local civil liberties groups. His interest in community policing prompted him to request records from Metro.

Since sending his request Jan. 30, he had not received any documents from the police agency — only a pair of letters informing him that they were still looking. So with managed expectations, he read the latest email to see if the department finally had answers for him.

Seth Morrison at his home in Las Vegas, Monday, May 27, 2019. Morrison has been struggling to get public records from Las Vegas Metropolitan Police Department. (Erik Verduzco / Las Vegas Review-Journal) @Erik_Verduzco

This message was similar to the others, with one major difference: Metro now wanted a $160 deposit to search for the records. The deposit — regardless of whether the agency located responsive documents or not — was nonrefundable, the agency stated. Additionally, Metro said that if department employees located any documents, there could be more fees. At the time, the response letter did not include an estimated time for the requests’ completion.

“It’s so totally frustrating that I have been unable to get records that I am entitled to, and I have to go through all these bureaucratic hassles,” Morrison said. “Having access to public records is about grassroots involvement, about a normal citizen wanting to be involved in government and understand it, and then they put up these roadblocks.”

Although the Nevada Public Records Act requires government agencies to make most public records available for inspection, Morrison’s experience is not out of the ordinary. Government documents and the personnel who are supposed to respond to requests are paid for by taxpayer dollars. Nevertheless, citizens such as Morrison can find themselves hit with high fees and delays when requesting records. Public records advocates and legal experts say many agencies routinely break the law by denying requests, demanding illegal fees, stalling or simply not responding at all.

Now, a bill before the Nevada Legislature — intended to address shortcomings in the law — is stalled in Carson City, still awaiting a committee vote with just four days left in the 2019 session. Senate Bill 287 aims to increase cooperation between government employees and those who request records. It would create more accountability for public agencies that stall or delay the completion of public records requests by assessing fines for noncompliance.

“The (government) agencies, at the end of the day, we want them to understand that they exist by virtue of the people,” said Tod Story, executive director of ACLU of Nevada. The organization is part of the Right to Know Nevada coalition, which is backing the bill. The group includes civil rights and good-government watchdogs, media organizations and elected officials. “And in order to exist (agencies) need to be forthcoming about the information they gather about us and be willing to share it with us when we need it.”

‘Still processing’

The Nevada Public Records Act requires an agency to respond to a request within five days by either providing the records, providing a future date when the records will be available, explaining that another government entity has the records or stating the request will be denied in whole or in part. If a request or parts of it are denied, agencies must specify the legal justification for doing so.

On Wednesday, Metro spokesman Aden OcampoGomez told the Review-Journal that the department has an estimated completion time of July 28 for Morrison’s request.

If Morrison’s request is processed by then, it will have taken the department nearly six months to do so. The department did not include an estimated time for completion in its initial Feb. 1 acknowledgement letter to Morrison, or in any communication since, according to Morrison.

OcampoGomez, who processed Morrison’s request, said it was an oversight on his part to not include the department’s standard 30-day time frame to compile any potential records in his acknowledgement letter. Otherwise, he felt the department complied with the law.

“Because we acknowledged it in the first five days and we are still processing it and working on it,” he said.

OcampoGomez said the long process was a result of Morrison’s broad request, and that the payment was necessary for the department’s information technologists to spend manpower searching for records. He said additional fees could include potential document redactions by the legal department.

Inconsistencies

Under SB287, Morrison would not have had to pay Metro to search for records. If Morrison had to go to court to get the records, a judge could fine the government every day it improperly blocked the public’s access to documents. The court could also impose additional civil penalties against government.

A large motivation to amend Nevada’s public records laws came from a lack of consistency in how government agencies respond to requests, Story said.

“The (current) law is too liberal in defining what the agencies need to do to exactly be accountable, and that’s why we have SB287, to have more accountability,” Story said.

He noted that the ACLU of Nevada sent the same records request to 17 Nevada school districts in 2013. The responses all varied in response time, fulfillment, how the records were produced and cost.

Requiring “some consistency in the whole public records law will help us to move forward in being a responsive state when it comes to government transparency and understanding how governments operate in this state,” Story said.

The bill has faced staunch opposition from more than a dozen government agencies that see the amendments as burdensome and potentially punitive. Metro submitted a 12-page letter opposing the bill, claiming it “burdens the taxpayer by inflicting penalties and immunizing the media from ever having to consider the costs of producing voluminous records.”

At a bill hearing Wednesday, Sen. David Parks, D-Las Vegas, the lead sponsor, told the Senate Finance Committee he and other senators were continuing to meet with wary government agencies to find agreement on remaining issues. Public bodies say they fear the reforms in the bill will mean more work for them at greater expense and potentially expose them to excessive fines for even unintentional noncompliance.

“We’ve met several times, and I think we’re very close. We just need to put the finishing touches on it,” Sen. Ben Kieckhefer, R-Reno, who is working with Parks and local governments on an amended bill, said after Wednesday’s hearing.

A list of three names

Other Nevadans have experienced hurdles and delays when requesting public records in the state.

In Nye County this year, attorney Arlette Newvine waited more than 70 days for copies of exotic animal permits.

She didn’t receive the records until she filed a lawsuit this month demanding the sheriff’s office complete her request. Newvine said she should have had the records — a list that only contained three names — within the five business days existing state law provides for a response.

“They responded with three people with permits. How could that possibly take two-and-a-half months to find in their records?” she asked. “These agencies are picking and choosing which records they want to fulfill and how fast they want to fulfill them.”

The Nye County Sheriff’s Office did not respond to the Review-Journal’s request for comment.

Newvine said she is now preparing to demand $2,800 in attorney fees from the sheriff’s office because she had to file suit to access the records.

Unlike many other states, there is no administrative remedy in Nevada law for records request denials by government entities. A requestor’s only option after a denial is to file a lawsuit against the government agency to get a court to order the release of the records. If a requestor prevails, a court also can order the agency to pay the requestor’s attorney’s fees, but there is no guarantee of full reimbursement.

Between late 2016 and early 2019, Nevada government agencies paid outside counsel more than $450,000 to prevent the release of public records sought in eight lawsuits, according to public records. Since last year, agencies have paid — or been court-ordered to pay — at least $311,000 in attorney fees to requestors who have prevailed in court, according to court documents.

“They’ve spent all this money to fight access,” said Las Vegas First Amendment attorney and SB287 advocate Maggie McLetchie. She has represented the Review-Journal and other news outlets in lawsuits that have sought the release of public records. “This (bill) could incentivize compliance and get them to avoid unnecessary fees and costs to litigate in court.”

But the bill’s opponents have decried the penalties and fines that judges could levy against governments that illegally withhold records. During April testimony on the bill, government officials and lobbyists theorized a deluge of lawsuits from profiteering citizens.

“Suing the government is always an uphill battle, and to think it’s going to be easy to go into court and get all these fees and fines … that just defies reality,” said McLetchie, who, along with the Review-Journal, is a member of the Right to Know Nevada coalition.

Penalties harsh in other states

Other states have harsh penalties for agencies and individuals who violate public records laws. At least nine states, including Arkansas, Idaho and West Virginia, allow courts to impose fines on individual officials who knowingly or willfully violate the public records law.

In some states, violating public records laws is a crime. In February, a press secretary for the former mayor of Atlanta was criminally charged with violating the Georgia Open Records Act. She is accused of ordering another city employee to delay handing over public records that contained damaging information about city officials. Last year, the Houston mayor’s former press secretary was indicted by a grand jury, accused of unlawfully withholding public records.

“What this bill is proposing is actually one of the friendlier penalties in the country,” Story said, adding that current Nevada law has no incentives for government agencies to comply with the law. “What we are trying to do here is institute some accountability, which already exists in Nevada’s open meeting laws, and we’re modeling after that.”

Under the bill, governments could still charge requestors for the cost of paper, ink, postage and other materials used to create copies of records. But governments would be required to provide electronic copies of records that are stored electronically at no cost.

Current law states government agencies can charge fees no more than “the actual cost to the governmental entity to provide the copy” and an additional 50 cents per page of records for requests that take an extraordinary use of the agency’s staff or resources.

SB287 would explicitly bar government agencies from charging for staff time to research and review documents, as in Morrison’s request.

“We need to make it even clearer because public entities are disobeying the law as it is written,” McLetchie said.

The provision could save requestors substantial dollars and make government business more accessible to taxpayers. A 2017 Review-Journal survey of Southern Nevada governments found some agencies charged as much as $1 per page for physical copies of records, despite the maximum per-page charge of 50 cents listed in the law. Some charged by the page for electronic copies, too, though the law does not provide for a per-page charge for electronic copies.

Other police departments

Morrison decided to take a gamble on his records request and pay the deposit requested by Metro. Getting the records was important to him. In its April 4 email, the department advised Morrison that the payment must be made in the form of a cashier’s check or money order, but the letter did not tell Morrison how to get it there. The same day, Morrison wrote back, asking where he should send the deposit.

About a month later, on May 15, Morrison said he had not heard back from the department. So he went down to Metro headquarters to hand-deliver his $160 money order and waited for about an hour before someone collected his payment.

OcampoGomez said he took responsibility for forgetting to clarify how payment should be made in his April 4 email.

When Morrison sent his January email, he’d also sent the same public records request to the Henderson Police Department and the North Las Vegas Police Department.

Each of those agencies responded to Morrison’s request within five days, as required by law, giving him an estimated response time in which the agency would produce the documents. The Henderson and North Las Vegas police agencies also gave him updates on any delays in compiling the documents and the reasons why it would take them longer.

By April, Morrison said, both those agencies had provided him with the documents he requested. The Henderson Police Department provided the records to him without a fee.

“I felt respected as a taxpayer and a customer by those departments,” he said. “I did not feel that way” with the Las Vegas police.

Metro sent its first response to Morrison within five days of his request, but it did not give a time frame for completion. OcampoGomez says this was another oversight he made, and the department’s procedures are to send an initial acknowledgment letter with a 30-day response time. Metro sent an extension letter in March, but did not give an estimated date for response.

OcampoGomez said he understands that the lengthy process can be frustrating, but that Metro’s priority is policing.

“We are not a research facility. We are a police department, and the policing is our primary function,” he said. “We can’t just drop everything to fill these requests.”

‘It’s a shame’

In an April interview with the Review-Journal, Gov. Steve Sisolak said he has always been a supporter in the public’s right to access government records.

“I was always a big proponent of public records when I was on the (Clark) County Commission,” he said. “I frankly never understood why it took so long to produce some of this stuff. It’s a shame. It’s unfortunate.”

Though the fate of SB287 remains uncertain, scores of citizens have left comments on the Legislature website, with a majority supporting the passage of the bill.

When Morrison heard about SB287, he reached out to his legislators and urged them to support the bill’s passage. He believes improving public records laws allows citizens a better opportunity to be informed participants in local government.

“As a new Nevada resident, I’ve been so surprised and disappointed by how slow and bureaucratic this process has been and with the inconsistency between departments,” he said. “This bill is really important.”

SB287 would require government agencies to “make a reasonable effort” to help citizens write records requests that will produce documents with the information they are seeking as quickly as possible.

It’s a strategy that the Southern Nevada Health District already voluntarily practices. When the agency denies a request, it also gives the requester advice on how to rewrite a query for better results.

“We’re not trying to deny people access to our records,” said Heather Anderson-Fintak, the attorney who oversees the agency’s public records request program. “We just need to really know what you’re trying to access.”

Paulette Flamond, a Las Vegas visitor who said she and her husband were bitten hundreds of times by bedbugs while staying at a local resort in February, had to rewrite her records request for infestation reports twice before the health district accepted it.

But the denials came on the same day Flamond wrote her requests and with suggestions on how to improve the inquiry. The health district mailed CDs containing 10 years’ worth of records to Flamond’s home in British Columbia for $60 in March.

“I think overall my experience was positive. Out of a scale from one to 10, I would give them about a six,” Flamond said. “They were in communication with me. They didn’t leave me hanging on a limb.”

NOTE: A graphic about public record fees appearing with this story has been updated to reflect the fee charged by McCarran International Airport. An earlier version contained incorrect information.

Contact Michael Scott Davidson at sdavidson@reviewjournal.com or 702-477-3861. Follow @davidsonlvrj on Twitter. Contact Anita Hassan at ahassan@reviewjournal.com or 702-383-4643. Follow @anitasnews on Twitter. Colton Lochhead and Bill Dentzer of the Review-Journal Capital Bureau contributed to this report.