From the Fall 2000 issue of The News Media & The Law, page 32.
The state Supreme Court released the records of county-owned cellular phones to a requesting newspaper after rejecting the county’s claims that the records were protected from disclosure because of privacy and pre-decisional communications concerns.
The dispute began when the Las Vegas Review-Journal received the records of county-owned cellular phone calls and it was apparent the Clark County manager had not given the newspaper the most important piece of information. The newspaper wanted the records for a story on possible government waste, but the county had redacted the last four digits of every telephone number in the records, making it impossible to determine the identity of the people called and the purpose for which they were called.
In a response letter to the newspaper’s request, the county cited three reasons for the redactions. The county claimed the records did not have to be disclosed because they revealed information about pre-decisional communications of government officials. In addition, the information was protected by a statute that prohibits the questioning of a public official about confidential communications. Finally, it claimed releasing the records violated the privacy of individuals with unlisted phone numbers and citizens who called expecting to have a confidential conversation.
The newspaper, supported by the Nevada Press Association’s friend-of-the-court brief, argued there was no protection for pre-decisional communications of government officials under state law. However, even if the court did find such a protection, the newspaper argued, cellular phone records would not be exempt. Records of the phone calls contained only factual material, not “pre-decisional” communications.
The newspaper also argued the public’s right of access would outweigh a claim of protected pre-decisional communication. In support of its position, the newspaper pointed to several states, including Indiana and Georgia, which have similar laws and where the courts have held that the records are open.
The newspaper countered the city’s argument that the records could not be disclosed by citing another statute as prohibitive of questioning an official about confidential communications. The newspaper said that this statute was not implicated by the records it was seeking because the newspaper was not seeking any testimony.
Finally, the newspaper argued the county had provided no proof of any privacy right violations implicated in revealing the records.
In August, the state supreme court unanimously agreed that cell phone records must be public.
The court rejected the county’s argument for sealing the records. The justices held the statute barring questions of an elected official regarding confidential conversation inapplicable because there was no testimony from any officials in this case.
Although the court recognized the pre-decisional communication protection in some situations, it was likewise inapplicable in this case, it said. Purely factual material, not attributable to a decision-making process, is not exempt from the state’s open records law.
Furthermore, the court agreed that the public interest in the information outweighed an interest in keeping the records sealed, even if the records of the calls qualified as decision-making.
As a result, the court ordered the county to comply with the entire request submitted by the newspaper.