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“Willfully Obtuse and Dumb”; The Reality of Open Records in Nevada

There are “so many different tactics that are used” by government entities trying to avoid complying with Open Records laws, according to Karen Gray, Education Researcher for the Nevada Policy Research Institute.

Acting “willfully obtuse and dumb is one of the most effective,” offered NPRI’s Vice President of Policy Steven Miller.

As part of Sunshine Week, Gray, Miller and NPRI Media Specialist Eric Davis, who compiles the data for NPRI’s TransparentNevada site, discussed what it’s really like for those trying to wrest information from government entities in the Silver State.

Nevada’s Open Records Laws, or the Nevada Public Records Acts (NPRA) as they are sometimes referred to, are intended to encourage the dissemination of information to the public. The Nevada Supreme Court has been consistent (“kind of emphatic,” in Miller’s words) in ruling that disclosure should be the default and in only limited cases, specifically spelled out in statute, can government withhold information from the public.

But the reality on the ground is much different, filled with inexplicable delays, irrational stalls and immovable walls.

Since entities are in some cases allowed to charge for providing records, pointing to the cost of complying with a request is a common tactic used to avoid giving the public information they are legally entitled to. They’ll claim “we don’t have staff so you’ll have to pay this exorbitant amount of money to get the records,” Gray stated. “It’s going to take the most highly-paid personnel in the office to pull the records.”

“This year was weird,” Davis said. “Agencies that haven’t charged in the past…for the first time were asking for payments,” some as high as $400, he declared.

Amazingly, putting records in digital format seems to have made retrieving them more difficult and more costly, according to what reporters are told. Because the information is digital instead of on paper, it cannot be accessed “except by somebody who makes $65 an hour,” Gray joked.

“That’s the strangest part,” stated Davis. “It’s 2013 and everything is in a database, everything is digital.” Yet government agencies often claim they can’t provide records in electronic format. “These agencies will send us hundreds or thousands of pages of printouts that obviously came from a database,” he said.

In one instance Gray said the Clark County School District (CCSD) claimed that, since information she had requested was in a database and not on documents, retrieving it would require them to “create” a record, which they were not legally required to do. At one point during this incident Gray claimed the CCSD wanted to send her 2000 pages of screen printouts, pictures of the computer screens of people viewing the information.

“They have to be beaten by court action and negative publicity” into doing what they’re supposed to do, Miller said. “They want to use their tax funding to keep the public from knowing too much about what they’re doing.”

Gray noted, “We have about 378 exemptions to Open Records Laws” in Nevada.

“And that’s not enough for them,” Miller added. “That’s why they slow-walk you.”

Miller noted that individuals, whether elected officials or government employees, seem to transform when they become part of the government. And those who are part of the government have a different interest than the public does.

“They’re increasingly trying to define transparency as not the government being transparent to you but you being transparent to the government and you being accountable to the government instead of the government being accountable to you,” Miller said.

But not every government entity puts up unnecessary roadblocks. “It just comes down to what the attitude of the office is,” according to Gray. She specifically cited the City of Henderson as being exceptionally responsive to requests for information.

“It’s really run the gamut,” Davis said of agencies’ responses to his annual requests for salary information made every January. “Some agencies will get me the data that week, some will go into May before they respond.”

Despite advances in database technology that allow users to access millions of records with a few mouse clicks, government entities in Nevada don’t seem to have adopted systems with the ease of providing information to citizens in mind.

“Entities don’t store records in a way that makes them readily available,” according to Gray.

Miller offered, “Some these computer systems were installed, I would argue, in violation of Public Records Laws.”

If it’s this difficult for seasoned investigative journalists who know the law, know their rights and know the government’s responsibilities, how difficult is it for a citizen journalist who doesn’t do this all the time?

Gray related the story of the time she made an oral request for information at a Clark County School Board meeting in response to an event at the meeting. She was told she would have to submit the request in writing. But the NPRA specifically states that requests for information do not have to be made in writing.

She was able to speak with the board’s attorney after the meeting and to cite the section of the law requiring entities to respond to oral requests. But a citizen who is not as familiar with the law would have left that meeting with the impression that requests must be made in writing.

Davis termed it “tough” and “intimidating” for people “not familiar with the lay of the land.”

The entities don’t make it easy even to find out where and how to find information the public is legally entitled to. “You really have to search the websites to find where to send your request,” Gray said. None of the government entities “really informs the public” how to access public information.

What should a citizen journalist do to get public information?

“Keep annoying them and eventually they relent,” Davis said.

“You know the statute and you don’t forget and you’re Johnny-on-the-spot with reminders,” directed Miller. “Don’t go away,” he added.

“Don’t let things languish,” Davis counseled. “Give them five days and be right back in their Inbox.”

“Nevada statute allows you to walk in and ask for a record. So show up. And show up and show up,” Gray advised.

Michael Chamberlain

Michael Chamberlain is the Editor of Watchdog Wire - Nevada. Please contact him at Nevada@watchdogwire.com for story ideas or to get involved in citizen journalism in Nevada. Follow Michael on Twitter: @michaelpchamber

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