Wednesday, April 3, 2019 | 2 a.m.
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In terms of knowing what’s going on in government, public records are extremely important.
Politicians can say virtually anything at any time — correct, false or somewhere in between — but emails, financial records, office memos and other documents can provide a verifiable record of government officials’ actions.
Talk is cheap. Documentation carries some weight.
So when it comes to a new bill regarding Nevada’s open records act, the Sun strongly supports the stated intent of the legislation — to make it easier for residents to obtain government documents. Nevada’s open records statutes are weak and vague, which has allowed some governmental bodies to effectively use them as a shield to keep the public from learning about their actions.
Unfortunately, however, the bill is an imperfect fix. In fact, it opens the door to an array of unintended consequences, the most serious of which is that it could be used as a weapon to paralyze governmental operations.
More on that in a moment, but to understand why the proposed legislation needs work, it’s first important to understand the changes it would bring about. Among its provisions, the bill would:
• Establish a far more clear and thorough definition of what is a public record, specifying that the term applies not only to traditional paper documents but to data processing software, email, metadata and more
• Limit the fees that officials can charge to provide records to individuals requesting them
• Mandate faster response times to requests and require officials to help individuals fine-tune their requests to “maximize the likelihood” of obtaining documents
• Establish monetary penalties for violations, which apply not only to governmental organizations but to staff members
Taken individually, some of these provisions are much needed, because the current laws have created loopholes that have harmed government transparency. For instance, some public bodies routinely charge fees for records, even though state law doesn’t require it.
One loophole is a provision in the current statute allowing charges for “exceptional use of resources.” This term is poorly defined, but it’s an addition to several legitimate fees mentioned elsewhere in state law, such as costs associated with retrieving hard documents, photocopying them, mailing them and so forth.
But some public bodies take advantage of the “exceptional use” provision to charge for such services as legal reviews, which is bogus. There’s nothing “exceptional” about having a staff attorney review documents; it’s part of what these people get paid to do.
So there’s merit in some of the bill’s elements. Another positive element is that it would bring the open records law in line with Nevada’s open meetings law, which is stronger and therefore is more widely adhered to.
But taken as a whole, the package is problematic.
It broadens the opportunity for irresponsible actors to carpet-bomb government agencies with requests for thousands and thousands of documents, diverting staff members from their task of serving the public in order to process the records requests. Given the penalties — including up to $250,000 for individual staff members, most of whom make a fraction of that amount in annual salary — governmental entities would seem to have little choice but to respond.
Especially for some smaller offices, a foreseeable outcome would be hiring extra staff to deal with these floods of records requests.
Given that such requests would be a form of harassment, as opposed to an attempt to serve the public’s best interests, processing them wouldn’t be a good use of government resources.
Any activist from any bent with any ax to grind could effectively freeze government operations simply by dropping endless document requests, no matter how unreasonable.
In addition, the idea of holding staff members financially responsible is unfair and overly punitive.
This almost certainly begs for a court challenge that would doom the provision to failure. What’s next, holding road crews personally responsible for damage to cars when pothole fixes don’t take?
It’s important to note here that the bill is being pushed by a coalition that includes Nevada media organizations, the ACLU and other pro-transparency groups and individuals. Among those backing it is the Nevada Press Association, of which the Sun is a member.
But while we wish we could fully support the measure, we can’t. The bill, we feel, was drafted without a rigorous process, and there was too little effort made to ensure that enough voices were heard during the drafting of it.
The proposed legislation needs more work, clear-eyed thinking and discussion, beginning today when it is scheduled to be heard by the state Senate Government Affairs committee. As is, it seems aimed less at transparency and responsible government than at creating an environment where good public servants flee because of possible harassment by anyone off the street and creating a wedge that could bring government to a halt.
There needs to be more careful consideration given to the legal issues — and inevitable challenges — brought by some elements. For example, defining elements of data processing software as a public record could run afoul of all kinds of intellectual property rights issues.
As it stands today, the legislation proudly waves the flag of transparency while not necessarily being a law that can survive court tests or, for that matter, provide the public with the proper and sensible actual transparency.
We are entirely in favor of increasing transparency in a constructive way — we certainly have our beefs with how easy it is for Nevada public officials to hide information, including by misapplying fees to make it prohibitively expensive to fulfill reasonable information requests.
But this bill, in its current form, goes too far. It seems designed to inflict harm rather than bring sunlight.
