Sunshine Week: Government agencies violate state’s public records law

It’s Sunshine Week, the annual celebration of open government.

This year, the Nevada Open Government Coalition studied a crucial issue impinging 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 a new law reforming the rules regulating those 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.

In our review of fees charged for public records, NOGC was especially interested to learn how state and local government agencies have responded to the new rules. We checked their websites and when fee schedules and policies weren’t posted there we contacted them to seek the information. Ultimately, we secured fee schedules for almost 200 government entities subject to the requirements of NRS 239 or other state laws regulating public records fees.

We found that the fee schedules or policies of dozens of agencies clearly and overtly violate the law. But aside from one egregious example I won’t assign motives or cast blame here.

First, most public officials are well-meaning and deserve the benefit of the doubt. It’s clear that many of the violations result from a lack of human resources, not malfeasance.

Second, focusing solely on the violations would be dishonest. Some of what we found was concerning but we also learned some things that were encouraging. For instance, many agencies don’t charge a cent for public records and a few immediately revised their policies to comply with the law following our queries.

Finally, how agencies respond to public records requests often varies based on the volume and frequency of the requests they receive.

So painting with a broad brush would distort the truth.

Having said that, we also know that some agencies that flagrantly violate NRS 239 have no innocent excuses. Take Las Vegas’ Metropolitan Police Department, which probably gets more public records requests than any other agency in Nevada, and has resources to manage 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 fighting it right up to the last minute before it was approved by every single sitting legislator in the state.

So when they charge $288 for every hour of body camera video footage — more than six times as much as the police department that charges the second-highest rate — we know they understand that NRS 239 makes it difficult and expensive for anyone to challenge that fee. Or when they set a confiscatory rate for a CD or DVD containing video that is 26 times more expensive than their neighbors in the city of Henderson, we know their lawyers are prepared to argue that it doesn’t violate the section of the law limiting fees to the “actual cost” to provide that record.

Unfortunately, dozens of agencies are disregarding the “actual cost” section of NRS 239 even though it’s easy to understand by anyone with a modicum of financial literacy. “‘Actual cost’ means the direct cost incurred by a governmental entity in the provision of a public record, including, without limitation, the cost of ink, toner, paper, media and postage,” says Section 1 of NRS 239.005. “The term does not include a cost that a governmental entity incurs regardless of whether or not a person requests a copy of a particular public record.”

That last sentence means government agencies can’t charge for overhead, yet many frequently cite “staff time” expenses in their fee schedules. Note to government agencies: Staff time is overhead. You can’t charge for it without violating the law, because doing so amounts to charging the public twice for their records.

Then there’s the “extraordinary use” issue. NRS 239 formerly had a clause allowing the government to charge for “extraordinary use” of personnel or resources required to fulfill specific requests. That section of the law was repealed in 2019. Yet more than two years after the repeal took effect, Las Vegas Metro continues to charge requestors a “research fee” for “extraordinary use of personnel or technology.”

Once again, Metro isn’t the only offender. Dozens of other agencies’ policies include charges for “extraordinary” or “voluminous requests.” Unlike Metro, however, most of those fee schedules are on web pages that appear not to have been updated since the new law passed. Still, you would expect agencies like the attorney general’s office or the governor’s finance office to know better.

At the very least, we hope our study prompts every agency in Nevada to better understand the state’s public records law and to interpret it “liberally,” as NRS 239 requires.

But to be honest, we hope for more. We hope our findings convince government agencies to plan and budget for public records requests without burdening requestors with illegal fees. And we hope agencies will view such requests not as a pesky hindrance and financial encumbrance, but as an opportunity to provide an essential service that helps to build trust between the government and the people it serves.

Richard Karpel is the executive director of the Nevada Press Association and a board member of the Nevada Open Government Coalition.