Legislative open record policy under attack

By Cy Ryan

Wednesday, Oct. 26, 2011 | 7:08 p.m.

CARSON CITY — A policy by the Legislative Commission that restricts access to public records is contrary to Nevada law and should be repealed, says the American Civil Liberties Union.

Rebecca Gasca of the ACLU of Nevada said the Legislative Commission and the Legislative Counsel Bureau should not be creating policy that violates the law.

But Lorne Malkiewich, director of the counsel bureau, says it is following the dictates of the Nevada Supreme Court in recent cases and it does not conflict with state law. It is not an effort to restrict public access, Malkiewich said.

The issue was raised at a meeting Wednesday of the Legislative Commission that adopted a new policy at its last meeting on requests for viewing public records.

Assemblyman Ira Hansen, R-Reno, agreed that the policy should be re-examined. He said the regulation may “be too vague and open ended.” And Hansen said the issue will be on the next meeting of the Legislative Commission.

Gasca appeared at the meeting and outlined a Sept. 12 letter from Allen Lichtenstein, general counsel for the ACLU, that objects to a part of the policy that allows the legislative group to use a “balancing test” in releasing the record. The test would rule whether disclosure was in or against the public interest.

In his letter, Lichtenstein said the Legislative Commission and counsel bureau are misapplying this Supreme Court concept. It applies only to a law enforcement investigation or a compromise of an individual’s privacy.

The law, says Lichtenstein, “considers all records to be public documents available for inspection unless otherwise explicitly made confidential by statute or by a balancing of public interests against privacy or law enforcement justification for nondisclosure.”

Malkiewich said the Supreme Court permitted a balancing test in releasing public records. But he admits in an Oct. 6 letter to Lichtenstein that the legislative policy does not limit the balancing test to privacy or law enforcement.

The ACLU also objects to the requirement that a person submitting the request must state his reason for asking for the information. In addition the organization complains the burden is placed on the requester to show the public interest is greater in releasing the information.

Lichtenstein says the policy runs counter both to the law and the Supreme Court rulings.

But Malkiewich said it is in the interest of the requester to explain any unique or particular public interest in disclosure. “We will not reject a request for failure to include such a statement…” He said many requests have been filled without the requester listing a reason for an examination of the record.

He said the Nevada Supreme Court has held the party seeking disclosure of the record must demonstrate that the need for the information outweighs the interest in preventing disclosure.

“The shifting of the burden applies only in cases involving the deliberative process privilege, and merely codifies the test established by the Nevada Supreme Court for such cases,” wrote Malkiewich.