NV Supreme Court Case Demonstrates Need for New Government Transparency Organization
By Robert Fellner, Nevada Policy Research Institute and Tod Story, ACLU of Nevada
Sunshine Week is dedicated to celebrating the principles of a transparent and accountable government, which makes it the perfect time to announce the launch of the Nevada Open Government Coalition.
The ideologically diverse Coalition was created to continue the success of our efforts to update the Nevada Public Records Act (NPRA) in 2019, and ensure that governments are transparent with the public as we seek information in the pursuit of accountability. The law aims to “foster democratic principles” by requiring that “all public books and public records of a government entity” are open to the public.
The latest example of a government agency trying to avoid their statutory obligations was highlighted in a state Supreme Court ruling from last month.
The case centered around efforts to obtain the results of an investigation by the Clark County School District into reports of inappropriate behavior by an elected school trustee.
While it’s hard to imagine an example of a document that more clearly falls within the realm of public records — the report about the conduct of an elected official seeking re-election was created by a public agency with public money — the school district nonetheless refused to disclose the report in response to a public records request submitted by the Las Vegas Review-Journal.
The newspaper was forced to sue and thankfully obtained the report just two weeks before the election, but only because it had the resources necessary to file a lawsuit.
One reason the newspaper was willing to take on the significant cost of litigation, however, was because of a provision within the Public Records Act that requires the government to reimburse the legal costs incurred by the requesting party, if a court finds that the government did, in fact, violate the law by withholding public records.
Absent this provision, the NPRA would be far less effective because government agencies could unlawfully withhold documents knowing that few organizations would be willing to pay the tens of thousands of dollars it would cost to force the government to comply.
This was precisely what CCSD argued for in its appeal.
Not content with wasting tax dollars to keep the investigation itself secret, the school district engaged in a lengthy appeal asking the Court to require the newspaper to pay its own legal fees.
The Nevada Supreme Court ultimately rejected the school district’s frivolous and self-serving argument. However, the whole ordeal will still end up consuming more than $125,000 of public money that should have gone instead towards education.
More must be done to ensure compliance with the Public Records Act. The importance of this law and government transparency cannot be overstated.
Using the public records law, the Reno Gazette-Journal recently discovered that Tesla defied a court order and search warrant by refusing to allow federal investigators access to their property. Given the enormous subsidies the state has provided to Tesla, the report is of significant public importance, but would never have seen the light of day if not for the public records law.
The Review-Journal used the law to help uncover numerous scandals and examples of corruption that officials would have preferred remained hidden, including failed oversight by the state Dental Board, improper use of government funds at the Las Vegas Convention Visitors Authority that would ultimately lead to criminal charges, and highly questionable activities at the Nevada DMV, where employees are alleged to have sabotaged a botched $75 million computer upgrade in an attempt to obtain bribes.
Thankfully, many public agencies comply with the law without a court order. But as this latest ruling reminds us, some agencies have no problem squandering significant amounts of tax dollars on frivolous legal efforts in an attempt to keep the public in the dark.
By educating, training, and providing resources on government transparency, the Nevada Open Government Coalition hopes to empower citizens with the knowledge and tools they need to hold public officials accountable.
The Coalition will also advocate for legislative changes designed to discourage the type of noncompliance exemplified in the recent CCSD case, which is sadly far too common.
To that end, the Coalition believes that public officials who violate the NPRA should face a penalty for doing so. This would ensure all Nevadans, taxpayers and public officials alike, are treated fairly under the law, while also providing the accountability needed to ensure Nevadans receive the fully transparent government to which they are entitled.
Robert Fellner is Vice President & Director of Policy of the Nevada Policy Research Institute, an independent organization that promotes free markets and individual freedom in the Silver State. Tod Story is the Executive Director of the ACLU of Nevada, which works to defend and advance the civil liberties and rights of all Nevadans. They are founding board members of the Nevada Open Government Coalition.