Nevada
Nevada is one of
a few states where the law does not specifically address electronic format in
some way. Since the law does not specifically provide for different formats,
such requests must be negotiated with the public agency from which the records
are requested. Some public agencies have attempted to use the failings of their
own computer systems as excuses for failing to provide access to public records.
The law. The
Open Records Law mandates that a person may request a copy of a public record
in any readily available medium. No custodian may refuse to provide a copy in
a "readily available medium" on the grounds "he has already prepared
or would prefer to provide the copy in a different medium." Nev. Rev. Stat.
§ 239.010 (West 1998). State law does not define public records per se,
but provides that records must be open to inspection and copying unless "otherwise
declared by law to be confidential." § 239.010.
A section relating
to document destruction allows a custodian to save records on "a computer
system which permits the retrieval and reproduction of that information. A reproduction
of that film or that information shall be deemed to be the original." §
239.051(1).
The Nevada Administrative
Code states that "record" means all documents, papers, . . . software
used to process electronic data, computer printouts . . . information stored
on a magnetic tape, computer, laser disc or optical disc, or on a material which
is capable of being read by a machine." Nev. Admin. Code § 239.101.
A state agency that produces an electronic record must include the entire record
or image and each record must include the date it was produced, as well as the
date of any alterations. Nev. Admin. Code § 239.760 (1). The state has
also enacted legislation allowing for the electronic submission, verification
and signing of records. Nev. Rev. Stat. § 239.042-044. Agency records that
are to be stored must be sent to state archives on bond paper, microfilm or
microfiche and not on computer disk or in a tape format. Nev. Admin. Code §
239.760(5).
Cases &
opinions. State-owned or licensed software is not a public record. All information
on a computer must be assessed on a case-by-case basis to determine if it is
public. Nev. Att’y Gen. Op. 89-1 (Feb. 6, 1989).
Personal information from the Department of Motor Vehicles files may be released prior to establishing an "opt in" system for bulk distribution of surveys, marketing materials or solicitations, provided that the information is to be used for one of the purposes specified in the exceptions set forth in Nev. Rev. Stat. 481.063(5). The release of personal information in connection with matters relating to emissions testing services falls within the listed exceptions, and the DMV may charge the requestor a reasonable fee to access such information. Nev. Att’y Gen. Op. 2002-12 (March 8, 2002)
Washoe County may
establish written standards to charge for the extraordinary use of personnel
or technological resources necessitated by an unusually burdensome request for
copies of public records. Those standards may include a reasonable time threshold
to define "extraordinary use of personnel" and a definition of actual
cost based on the hourly rate of pay of the staff member performing the retrieval
and copying of a record. Nev. Att’y Gen. Op. 2002-32 (Aug. 27, 2002)
The supreme court
ruled that records showing the telephone numbers of incoming and outgoing calls
on publicly owned cellular telephones are not confidential or private. DR
Partners v. Board of County Commissioners, 6 P.3d 465 (Nev. 2000) The court’s
ruling requires the release of unredacted — or unedited — records
of cellular telephone use by county officials.
Fees.
The law allows "fees as may be prescribed for the service of copying
and certifying." Nev. Rev. Stat. § 239.030. If fulfilling a request
requires "extraordinary use" of state personnel or resources, the
state may charge further "reasonable" fees. § 239.055. A modified
fee schedule, effective July 1, 1999, provides that, absent a statute to the
contrary, copy fees shall not exceed the actual cost of providing the copy.
§ 239.052. Government entities may provide free copies if there is statutory
authority to do so or may waive fees upon adoption of a fee waiver policy. §
239.052
The law permits
the governmental entity to charge a fee for extraordinary use when providing
a copy of the public record to the requestor requires "extraordinary use
of its personnel or technological resources." Nev. Rev. Stat. 239.055(1).
Technological resources is defined as "any information, information system,
or information service acquired, developed, operated, maintained, or… used
by a governmental entity." Nev. Rev. Stat. § 239.055(2).
Software.
A 1989 Attorney General opinion states that computer programs are intellectual
property owned or licensed by the state and are not public records. Nev.A.G.O.
89-1 (Feb. 6, 1989). Public information contained in a computer program, may,
of course, be disclosable.
GIS.
Nevada law permits government agencies to charge for information from a geographic
information system. A geographic information system is a system of hardware,
software and data files on which spatially oriented geographic information is
digitally collected, stored, managed, manipulated, analyzed and displayed. In
addition to the actual cost of the copy, the government agency may also charge
reasonable costs of gathering and entry of data into the system, maintenance
and updating of the database, hardware, software, quality control and consultation
with the employees of the agency. Nev. Rev. Stat. 239.054.
Resources. Nevada Attorney General Opinions