EDITORIAL: The transparency bill Nevada needs

The best public records lawsuits are the ones that never have to be filed. A proposal from Assemblyman Andy Matthews would help accomplish that.

On paper, Nevada’s public records law is fairly robust. It ensures that most government records are available for public viewing. An agency is required to respond within five business days of receiving a request. Government agencies have the burden of proof if they believe a record is confidential. Courts are supposed to prioritize public records lawsuits over other cases.

In practice, however, some state and local public agencies have spent decades exploiting an obvious loophole. When a request comes in for records that would reveal uncomfortable information, they can ignore the law with little risk.

It’s a devious, but effective, strategy. If an agency refuses to produce the records, the only option for those seeking the documents is to pursue the matter in court. Many requesters don’t have the financial wherewithal to bring such a suit. Even if they do, it can take years to resolve such a dispute. What might be front-page news today, may not be of interest in 2023.

The law does allow a requester who prevails in a lawsuit to recover attorney fees when a government agency unsuccessfully appeals a District Court ruling. Last session, the Legislature unanimously approved a bill imposing fines of $1,000 to $10,000 on agencies that willfully fail to comply with the law. The fines go to the state general fund to improve access to records. It was a major step forward, but did little to help requesters who lack the financial means to pursue a lawsuit.

Enter Assembly Bill 276. Mr. Matthews’ proposal would award a records seeker who won a lawsuit damages equal to double the cost of the legal action, including attorney fees. The requester would still recover their attorney’s fees if a government agency appealed a District Court decision, too.

This changes the incentive equation. If this bill passed, a requester would have a financial reason to sue when an agency wrongly withheld records. More practically, lawyers could make money taking on strong public records cases, even if they worked on contingency.

Denying legitimate requests isn’t a viable strategy for an agency if officials know a lawsuit is waiting. This would increase political pressure, too. No lawmaker would want to lead an agency that continually lost public records lawsuits and had to spend money on legal payouts instead of needed services.

Simply knowing that they’re likely to get sued and lose would encourage intransigent public officials to hand over records when requested.

That’s what should happen. But too often it doesn’t, which is why AB276 is so necessary.