Open records bill could end up closing public books

Back in the days when I was a police reporter for the Las Vegas Sun, I once drove down to the records division of the Las Vegas Metropolitan Police Department to request a criminal history report.

I got a chilly reception.

"If it was up to us, we wouldn't give you anything," a records clerk sniffed.

That's why it's a good thing it wasn't up to that clerk, or any other government functionary, to decide what was public and what wasn't.

But the sad fact is, too many government agencies in Nevada think it's their purview to decide what's public and what's not, based on a longstanding misinterpretation of an old court ruling. And now, a bill to govern public records that's been introduced in the Assembly is suffering from the same hard-to-kill misinterpretation.

Assembly Bill 31 would do some helpful things: It would mandate state agencies designate a records officer to handle requests for public records, standardize a form for requesting records and - for the first time - collect the dozens of exceptions to the state's public records law in a single place.

But the bill (at least in its original form) would radically re-write existing law to allow government agencies to apply a "balancing test" to decide whether public records should be released. (And lest you think this is an issue that affects only a whiney press corps, every blogger, every citizen activist, every person who wants to keep an eye on what their government is doing could be affected by this bill.)

Existing law (NRS 230.010) says, in relevant part: "All public books and public records of a governmental entity, the contents of which are not otherwise declared by law to be confidential, must be open at all times during office hours to inspection by any person ..." In other words, it's open and public, unless another specific law says it's not.

But under AB 31, proposed by the Assembly Government Affairs Committee on behalf of the attorney general, the government proposes to delete the words "the contents of which are not otherwise declared by law to be confidential." Instead, it would add a section that would allow withholding even clearly public records "if, on the facts of the particular case, the public interest served by nondisclosure of the public book or record clearly outweighs the public interest served by disclosure ..."

After objections from the Nevada Press Association, the attorney general's office offered an amendment deleting that "balancing test" language, but only because officials believe that such a test is allowed under the 1990 court case Donrey v. Bradshaw.

But in that case, the Donrey Media Group's Reno television station was seeking the Reno Police Department's investigative report into the case of infamous brothel owner Joe Conforte. Reno cops refused to release the report, saying it was confidential. A District Court concurred, but the state Supreme Court reversed the decision, applying a balancing test to say the value of releasing the report outweighed keeping it secret.

To repeat: The court applied a balancing test to decide to release a supposedly confidential record. Nowhere in the ruling was it even suggested that a government agency could apply such a test when it comes to manifestly public records. That power is reserved for courts, or for the Legislature.

But in the 23 years since, agencies have tried to grab that power again and again, an untenable conflict of interest that does violence to state law and the public's right to know.

There are some worthwhile parts of AB 31, which would help the public. But changing today's default - records are open unless a law specifically says they're not - is an ill-considered idea that should die a quick death in Carson City.

Steve Sebelius is a Review-Journal political columnist and author of the blog SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at (702) 387-5276 or ssebelius@reviewjournal.com.