Background
The following template is for journalists seeking to compel a state agency to turn over records requested under Nevada’s Public Records Act (“Act”). The Act is found in Nevada Revised Statutes (“NRS”) Chapter 239.
Nevada’s Public Records Act was enacted to ensure that government documents are available to the public. The Act applies to documents held by any “governmental entity,” which is defined as (1) an “elected or appointed officer” of the state or one of its subdivisions, (2) an “institution, board, commission, bureau, council, department, division, authority or other unit of government,” (3) a university foundation, or (4) an educational foundation, to the extent it is dedicated to the assistance of public schools. NRS §§ 239.010(1); 239.005. “[A]ll public books and public records” held by a governmental entity are subject to inspection and copying, unless otherwise declared by law to be confidential. NRS §239.010(1). The Act includes a list of statutory provisions that make certain types of documents confidential (and therefore not subject to inspection and copying). See NRS §239.010(1).1 In those instances where the Legislature has not specified a particular record to be confidential, the Nevada Attorney General has concluded that a balancing test must be applied to determine whether a record is a public record subject to the provisions of the Act. This test balances the interest and justification of the agency, or the public in general, of maintaining the confidentiality of the document against the interest or need or the public to review the document. The Nevada Supreme Court adopted this balancing test approach in 1990. Donrey v. Bradshaw, 106 Nev. 630 (1990).
The template provided below is a general outline for a complaint to be filed in court to compel production of public records, with areas for editing in brackets. Filing a complaint with the court is the last step of the process for seeking documents under the Act. A journalist seeking documents must (or, where indicated, may) take the following steps:
1. Request documents from the governmental entity or agency.
The first step is requesting the documents sought from the appropriate governmental entity. Requests should be directed to the officer, employee, or agent of the governmental entity having legal custody of the records. NRS §239.010. The Act allows for either written or oral requests (see NRS §239.0107(1)), but if an oral request is denied, a formal, written request should be made citing the Act or other statutory authority granting access to the requested records so that it can be attached to a complaint or used as evidence. The request should be as specific as possible in identifying or describing the particular records sought. Though not required by the Act, it is recommended to include in the request an offer to pay for reasonable copying expenses as agencies are allowed to charge fees for copies (though inquiry may be made as to any waiver of those fees).
Each agency is supposed to adopt a policy that conforms to NRS Chapter 239. Before submitting your request for records, you should therefore check with the agency (through its website, or in person) to determine if it has a standard form for submitting requests or special procedures that must be followed.
Government bodies have five days to respond to a public records request. The government body must either (1) allow a person who has requested to copy/inspect a public record to do so; (2) inform the person that it does not possess the record and identify which other governmental entity has it; (3) inform the person that it cannot comply with the 5-day requirement and then state a time when it will be able to do so; or (4) inform the person that it is denying access to the record and state which Nevada statute or other legal authority it believes allows it to deny access. NRS §239.0107. If the response is not in writing, try to document the response in a letter or email.
2. You may contact the Attorney General if the agency’s response is not satisfactory.
This is not required, but before the expense of litigation is commenced, the requestor may want to contact the Attorney General of the county where the records are held regarding the agency’s denial of access to public records. Some District Attorneys are willing to help enforce the public records law.
3. If the agency’s response is not satisfactory, file a complaint with the correct county district court.
If a governmental entity denies a request for public books or records that are less than thirty years old, the requester may bring a civil action in district court to compel the governmental entity to comply with his or her records request. If the requester prevails, it will result in a court ordering the governmental entity to produce the records and to pay the requester’s attorney’s fees and damages. NRS §230.011. The action must be brought in “the district court in the county in which the book or record is located.” Id. Such an action is entitled to priority over other civil matters. Id.
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1 The Act also includes a provision that restricts access to local governmental entity records that contain identifying information for persons who register to use a recreational facility, or to engage in instructional or recreational activities or events. NRS §239.0105. Those records, however, must be produced in specified circumstances, including when requested by a reporter or editorial employee who is “employed by or affiliated with a newspaper, press association or commercially operated, federally licensed radio or television station.” Id.