Dozens of Nevada government agencies violate state public records law
It’s Sunshine Week, the annual celebration of open government.
This year, the Nevada Open Government Coalition studied a critical issue that impinges on our laws that guarantee access to government records – the fees the government can charge citizens for those records.
In 2019, the Nevada Legislature unanimously approved new legislation reforming the rules governing these fees under the Nevada Public Records Act (NRS 239). The combined vote in the Senate and Assembly was 61-0 in favor of the changes, so they were bipartisan and uncontroversial.
During our review of fees charged for public records, the NOGC was particularly interested in how state and local government agencies have responded to the new rules. We checked their websites and when fee schedules and policies were not posted there, we contacted them for information. Ultimately, we obtained fee schedules for nearly 200 government entities subject to the requirements of NRS 239 or other state laws regulating public records fees.
We have found that the fee schedules or policies of dozens of agencies clearly and blatantly break the law. But other than one glaring example, I won’t assign motives or blame here.
First, most public servants mean well and deserve the benefit of the doubt. It is clear that many of the violations are the result of a lack of human resources, not malfeasance.
Second, to focus solely on violations would be dishonest. Some of what we found was concerning, but we also learned some encouraging things. For example, many agencies do not charge a penny for public records and a few immediately revised their policies to comply with the law following our requests.
Finally, how agencies respond to requests for public records often varies depending on the volume and frequency of requests they receive.
So painting with a large brush would distort the truth.
That said, we also know that some agencies that blatantly violate NRS 239 have no innocent excuse. Take the Las Vegas Metro Police Department, which probably receives more requests for public records than any other agency in Nevada, and has the resources to handle those requests that are the envy of many other agencies across the state. We know they know what the new public records law says because they had a team of lobbyists who fought it until the last minute before it was approved by all sitting lawmakers in the state.
So when they charge $288 for every hour of body camera footage – more than six times more than the police department that charges the next highest rate – we know they understand that NRS 239 makes it difficult and costly for anyone to dispute these charges. Or when they set a forfeiture rate for a CD or DVD containing video that is 26 times more expensive than their neighbors in the town of Henderson, we know their attorneys are willing to argue that it does not violate the section of the law limiting costs. at the “actual cost” to provide this file.
Unfortunately, dozens of agencies ignore the “actual cost” section of NRS 239, even though it is easy to understand for anyone with a modicum of financial knowledge. “Actual Cost” means the direct cost incurred by a government entity in providing a public document, including, but not limited to, the cost of ink, toner, paper, media and postage”, says section 1 of NRS 239.005. “The term does not include a cost incurred by a government entity whether or not a person requests a copy of a particular public document.”
This last sentence means that government agencies cannot charge overhead, but many frequently list “staff time” expenses in their fee schedules. Note to Government Agencies: Staff time is an overhead. You can’t charge for it without breaking the law, because it’s like charging the public twice for their records.
Then there is the issue of “extraordinary use”. NRS 239 previously had a clause allowing the government to charge for the “extraordinary use” of personnel or resources needed to meet specific demands. This section of the law was repealed in 2019. Yet, more than two years after the repeal took effect, the Las Vegas Metro continues to charge claimants a “search fee” for “extraordinary use.” personnel or technology.
Again, Metro is not the only offender. Several other agencies’ policies include fees for “extraordinary” or “large” requests. Unlike Metro, however, most of these fare schedules are on web pages that don’t appear to have been updated since the new law was passed. Yet you would expect agencies like the attorney general’s office or the governor’s finance office to be better informed.
At the very least, we hope our study will inspire every Nevada agency to better understand the state’s public records law and interpret it “liberally,” as required by NRS 239.
But to be honest, we hope for more. We hope our findings will convince government agencies to plan and budget for public records requests without burdening requesters with illegal fees. And we hope agencies see these requests not as a pesky hurdle and financial burden, but as an opportunity to provide an essential service that helps build trust between government and the people it serves.
Richard Karpel is executive director of the Nevada Press Association and a board member of the Nevada Open Government Coalition.