FOREWORD

Open Records. As early as 1906, the Nevada Supreme Court recognized a common-law right to inspect and copy public records.

However, the recognition of the common-law right was subject to the requirement that the requester have an "interest" in the matters to which the records relate. State v. Grimes, 29 Nev. 50, 84 P. 1064 (1906).

In 1911, the Nevada Legislature passed an open records act. The Nevada Supreme Court has interpreted the act as enlarging the common law right of access to public records. Mulford v. Davey, 64 Nev. 506, 509, 186 P.2d 360 (1947).

The current text of the Act (little changed from the original 1911 statute) broadly declares that "all public books and public records" of a public agency, the contents of which are not otherwise declared by law to be confidential, must be open to inspection by any person. N.R.S. 239.010.

The purpose of the Public Records Act is to ensure the accountability of the government to the public by facilitating public access to vital information about governmental activities. DR Partners v. Board of County Comm'rs of Clark County, 6 P.3D 465 (2000).

The obvious limitation on the applicability of the Act comes from the language: "not otherwise declared by law to be confidential." Over the years, the Nevada legislature has declared different types of records to be confidential in whole or in part. Since these exemptions are not contained in the Act itself, but are scattered throughout Nevada law, determining whether a specific public record is disclosable almost always requires extensive research in the statutes, the Nevada Administrative Code and Opinions of the State Attorney General..

To complicate matters further, a second, less-obvious limitation on the applicability of the Act results from the fact that the terms "public books" and "public records" are not defined by the Act. The Nevada Attorney General has determined that a balancing test must be applied to determine whether a record in the possession of a public agency is a "public record" subject to the provisions of the Act. In 1990, the Nevada Supreme Court implicitly adopted the balancing test approach. Donrey of Nevada v. Bradshaw, 106 Nev. 630, 798 P.2d 144 (1990).

The Donrey court never explicitly held that a balancing test should be applied in every instance to determine when a record is public. The Donrey court used a balancing test to determine that criminal investigative information, already the subject of an ambiguous statutory provision, may be disclosed when public policy considerations so merit.

In a post-Donrey case mentioning the Act, the Nevada Supreme Court did not mention a balancing test, but instead bluntly stated that "all records submitted to the Department [of Human Resources] are public unless 'otherwise declared by law to be confidential.'" Neal v. Griepentrog, 108 Nev. 660, 665, 837 P.2d 432 (1992).

A flaw in the Act is the lack of an effective enforcement mechanism, particularly post-Donrey. Agencies often adopt the balancing test, which requires expensive, and often protracted, litigation, to secure records.

Open Meetings. The Nevada legislature adopted the initial version of the state's Sunshine Law in 1960. As a result of significant amendments in 1977, Nevada's Open Meeting Law became one of the nation's most stringent.

The Nevada legislature's attitude toward open government is best expressed in the opening section of the law: "In enacting this chapter, the legislature finds and declares that all public bodies exist to aid in the conduct of the people's business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly." N.R.S. 241.010.

The Attorney General is the chief enforcement officer for violations of the law and takes an aggressive approach to open government. The Attorney General publishes the respected Nevada Open Meeting Law Manual (Tenth Edition, published in December 2005, hereinafter A.G.O. Manual). The Manual is an excellent resource for both public agencies and the public and is available online at http://ag.state.nv.us.oml/oml.htmalong with open meeting law opinions and other resources.

Unlike the Open Records Act, there has been considerable litigation involving the Open Meeting Law.

In 2000, the Court addressed new technological means of communications when it held that a quorum of a public body using "serial electronic communication to deliberate toward a decision or to make a decision on any matter over which the public body has supervision, control, jurisdiction or advisory power violates the Open Meeting Law." Del Papa v. Board Of Regents Of The University and Community College System Of Nevada, 956 P.2d 770, 114 Nev. 388, 956 P.2d 770 (2000).

This outline updates the earlier editions by Hon. James W. Hardesty, Kevin D. Doty, Esq. and Dominic Gentile, Esq.whose efforts are greatly appreciated.