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Nevada

Open Government Guide

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Author

Kristen Gallagher, Esq.

Adam Hosmer-Henner, Esq.
McDonald Carano LLP
2300 W. Sahara Avenue

Suite 1200

Las Vegas, NV 89102

(702) 873-4100

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Foreword

Nevada’s public records act was originally enacted in 1911 and “for many years, the law simply stated that ‘all books and records of the state and county officers . . . shall be open at all times during office hours to inspection by any person, and the same may be fully copied.’” Public Records, Policy and Program Report, Research Division, Nevada Legislative Counsel Bureau April 2016, available at:

https://www.leg.state.nv.us/Division/Research/Publications/PandPReport/16-PR.pdf; see also City of Reno v. Reno-Gazette-Journal, 119 Nev. 55, 59 (2003). The initial law did not contain a definition of “precisely what constituted a public record [and] . . . since 1913, over two dozen Attorney General’s opinions have attempted to clarify the intent of the public records law, determine whether a particular document constitutes a public record, and define when a public record should be stored and preserved.” Id. NRS 239.010(1) currently creates a functional definition of a public record as “all public books and public records of a governmental entity” unless they are “otherwise declared by law to be confidential.” The public record must be supplied to the requestor in “any medium in which the public record is readily available.” NRS 239.010(4) (emphasis added).

Judicial analysis of the Nevada Public Records Act (“NPRA”) begins with Donrey of Nevada, Inc. v. Bradshaw in 1990. 106 Nev. 630 (1990). In Bradshaw, the appellants filed a petition for writ of mandamus based on NRS 239.010 seeking to obtain a police investigative report. Id. at 631. The Court found that NRS 179A.070(1) rendered certain criminal records confidential and exempt from disclosure, but did not “expressly declare criminal investigative reports to be confidential.” Id. at 634. The Court held that the initial legislative balancing expressed in the statutes did not preclude judicial balancing of “public policy considerations when release of records other than those specifically defined as criminal history records is sought.” Id. at 635. Therefore, the Court weighed “the absence of any privacy or law enforcement policy justifications for nondisclosure against the general policy in favor of open government.” Id. at 636. Based on the specific circumstances, the Court ordered the release of the entire police investigative report.

A decade later, this Court again considered the NPRA in DR Partners v. Bd. of Cnty. Comm'rs, 116 Nev. 616, 621, 6 P.3d 465, 468 (2000). The appellant filed a petition for writ of mandamus seeking disclosure of “unredacted records documenting use of publicly owned cellular telephones.” Id. at 619. Clark County was asked to produce records “documenting the use, over a two-year period, of publicly owned cellular telephones issued to the individual respondents.” Id. Clark County responded by providing the records but redacting the last four digits of each incoming and outgoing telephone number on the grounds that this information was confidential because it was subject to a deliberative process privilege, an official information privilege, or would violate the individual callers’ privacy.

The Court analyzed Bradshaw as recognizing that “any limitation on the general disclosure requirements of NRS 239.010 must be based upon a balancing or ‘weighing’ of the interests of non-disclosure against the general policy in favor of open government.” Id. at 622. The en banc Court ordered complete disclosure of the phone records, writing: “having weighed the public policy considerations inherent in our Public Records Act, we respectfully disagree with the district court and conclude that these records are not protected under a deliberative process privilege.” Id. at 622. The Court stated that the County did not make an “offer of proof of any kind . . . for the purpose of balancing important or critical privacy interests against the presumption in favor of public disclosure of these redacted records.” Id. at 628. Thus, the County could not satisfy its burden by voicing “non-particularized hypothetical concerns” about privacy.

In City of Reno v. Reno Gazette-Journal, 119 Nev. 55 (2003), the respondent filed a petition for mandamus seeking documents related to a major public works project, which was partially financed with federal funds. Id. at 59. The Court, sitting en banc, held that applicable federal regulations declared the subject records confidential and thus exempt from disclosure. Id. at 61.

In 2010, the en banc Court analyzed whether “NRS 202.3662, which makes applications for concealed firearms permits confidential, includes within its scope the identity of the permittee of a concealed firearms permit and any records of investigations, suspensions, or revocations that are generated after the permit has issued.” Reno Newspapers v. Haley, 126 Nev. 211, 214 (2010). The Court unanimously construed NRS 202.3662 narrowly, finding that it did not explicitly declare post-permit records confidential, and required the disclosure of the requested documents. Id. at 212. Based on legislative amendments to the NPRA, the Court recognized a presumption that “all public records are open to disclosure unless either (1) the Legislature has expressly and unequivocally created an exemption or exception by statute . . . [or] (2) balancing the private or law enforcement interests for nondisclosure against the general policy in favor of an open and accessible government requires restricting public access to government records.” Id. at 215.

The public agency argued that “because an application for a concealed firearms permit and information related to the applicant are confidential under NRS 202.3662, any information generated in a permit that is derived from the application would remain confidential.” Id. While NRS 202.3662 “clearly and unambiguously” created an exception to disclosure for “applications, information within the applications, and information related to the investigation of the applicant,” it was silent with respect to the information generated after the application is approved or rejected. Id. at 216. The Court found post-permit records were not explicitly confidential even though they contained the same information as in the application. Id. at 217. The Court then recognized “that an individual’s privacy is also an important interest, especially because private and personal information may be recorded in government files.” Id. Using the Bradshaw balancing test, the Court found that the public agency had not met its “burden to show that the law enforcement or individual privacy concerns outweigh the public’s right to access the identity of the permit holder.” Id. at 219.

Next in 2011, the Court considered a request for access to a former governor’s e-mail communications. Reno Newspapers, Inc. v. Gibbons, 127 Nev. 873 (2011). The primary holding was that the “requesting party generally is entitled to a log unless, for example, the state entity withholding the records demonstrates that the requesting party has sufficient information to meaningfully contest the claim of confidentiality without a log.” Id. at 883. Additionally, a public agency must cite to specific authority that makes the public book or record confidential. Id.

The Court relied upon its own “inherent authority to manage its own affairs” to determine that information held by the AOC was explicitly declared confidential by law and that the “AOC acted within its power by maintaining the requested documents as confidential in order to protect the privacy of [foreclosure mediation program] participants.” Civil Rights for Seniors v. AOC, 313 P.3d 216, 220 (2013). The Court held that even if it “were to conclude that the requested documents were public court records . . . the AOC’s interest in maintaining the confidentiality of participant information is justified, given the personal and sensitive nature of the information involved.” Id. Moreover, holding otherwise “would expose highly sensitive personal and financial information to the public and thus have a chilling effect on open and candid FMP participation, undermining the Legislature’s interest in promoting mediation.” Id.

In 2013, the Court decided Reno Newspapers, 313 P.3d 221, 225-26. The Court held, in accordance with the reasoning of Haley, that “NRS 286.110(3) only protects as confidential the individuals' files held by PERS, not all information contained in separate media that also happens to be contained in individuals' files.” Id. So where “information is contained in a medium separate from individuals' files, including administrative reports generated from data contained in individuals' files, information in such reports or other media is not confidential merely because the same information is also contained in individuals' files.” 313 P.3d at 224. But, the public agency did not need to “create new documents or customized reports by searching for and compiling information from individuals’ files or other records.” Reno Newspapers, 313 P.3d at 228.

Finally, in Blackjack Bonding in 2015, the Court found that the record revealed that “Blackjack's request does not involve searching through individual files and compiling information from those files” like it would have in Reno Newspapers. 343 P.3d at 613–14. Because CenturyLink had previously produced the requested information and could so again in the future, the Court held that the records should be disclosed. Id.

The NPRA is the sole governing authority for most public records cases, but Nevada does recognize a common law and constitutional right to the disclosure of public records. See Civil Rights for Seniors v. AOC, 129 Nev. 752, 313 P.3d 216, 220 (2013) (noting potential arguments related to a common law right to inspect public records but citing to Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597–98 (1978), for the proposition that the public's “general right to inspect and copy public records” is not absolute and courts have inherent authority to deny public access to its records when justified).

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Open Records

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I. Statute

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A. Who can request records?

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1. Status of requester

Any person may request records under the Nevada Public Records Act (“NPRA”). NRS 239.0107(1).

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2. Purpose of request

Any person may request records under the Nevada Public Records Act (“NPRA”). NRS 239.0107(1).

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3. Use of records

The NPRA does not restrict the requester's use of the information provided.

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4. Can an individual request records on behalf of a third party or organization?

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B. Whose records are and are not subject to the Act

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1. Executive branch

The NPRA applies to any "governmental entity." NRS 239.010(1). A governmental entity is defined as 1) an "elected or appointed officer of this State or of a political subdivision of this State” or 2) an "institution, board, commission, bureau, council, department, division, authority or other unit of government of this State including, without limitation, an agency of the Executive Department or of a political subdivision of this State" 3) a university foundation, or 4) an educational foundation. NRS 239.005(5). The Office of the Governor is subject to the NPRA. See Reno Newspapers, Inc. v. Gibbons, 127 Nev. Adv. Op. 79 (Dec. 15, 2011).

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2. Legislative bodies

The NPRA has been interpreted not to apply to the Nevada Legislature. The Legislative Counsel Bureau concluded that the NPRA cannot constitutionally be applied to legislative materials because (1) such an application would conflict and interfere with the exclusive and paramount constitutional powers of each House of the Legislature under Article 4, Section 6 of the Nevada Constitution to determine the rules of its proceedings; (2) such an application would conflict and interfere with the constitutional doctrines of separation of powers and legislative privilege and immunity as recognized under Article 3, Section of the Nevada Constitution and statutorily codified in NRS 41.071; (3) the Legislature and its agencies, members, officers and employees do not come within the statutory definition of "governmental entity" and; (4) legislative materials do not come within the ordinary definition of "public books and public records" as those terms are used in the Public Records Law. LCB Memorandum re: Written response to public records request made by Ms. Michelle C. Rindels, March 3, 2016; see also NRS 41.071.

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3. Courts

The Supreme Court of Nevada has not explicitly ruled as to whether the NPRA applies to the judicial branch. “As a separate branch of government under the Nevada Constitution, the judiciary has the inherent authority to manage its own affairs, make rules, and carry out other incidental powers when ‘reasonable and necessary’ for the administration of justice.” Civil Rights for Seniors v. AOC, 129 Nev. 752, 313 P.3d 216, 220 (2013) (internal citations omitted). “In exercising this power, we have adopted rules declaring that “[a]ll court records in civil actions are available to the public, except as otherwise provided in these rules or by statute.” SRCR 1(3). “Court records” are then defined to include “information ... that is maintained by a court in connection with a judicial proceeding.” SRCR 2(2)(a). This “does not include data maintained by or for a judge pertaining to a particular case or party, such as ... working papers; or information gathered, maintained, or stored by a government agency or other entity to which the court has access but which is not entered in connection with a judicial proceeding.” SRCR 2(2)(b).

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4. Nongovernmental bodies

The Supreme Court of Nevada has not explicitly ruled as to whether the NPRA applies to the judicial branch. “As a separate branch of government under the Nevada Constitution, the judiciary has the inherent authority to manage its own affairs, make rules, and carry out other incidental powers when ‘reasonable and necessary’ for the administration of justice.” Civil Rights for Seniors v. AOC, 129 Nev. 752, 313 P.3d 216, 220 (2013) (internal citations omitted). “In exercising this power, we have adopted rules declaring that “[a]ll court records in civil actions are available to the public, except as otherwise provided in these rules or by statute.” SRCR 1(3). “Court records” are then defined to include “information ... that is maintained by a court in connection with a judicial proceeding.” SRCR 2(2)(a). This “does not include data maintained by or for a judge pertaining to a particular case or party, such as ... working papers; or information gathered, maintained, or stored by a government agency or other entity to which the court has access but which is not entered in connection with a judicial proceeding.” SRCR 2(2)(b).

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5. Multi-state or regional bodies

Multistate and regional bodies are generally "governmental entities," and are therefore covered by the NPRA. NRS 239.005(5).

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6. Advisory boards and commissions, quasi-governmental entities

The NPRA applies to an “institution board, commission, bureau, council, department, division, authority or other unit of government of this State, including, without limitation, an agency of the Executive Department, or of a political subdivision of this State.” NRS 239.005(5).

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7. Others

The NPRA’s scope has not been extended beyond the definitions of NRS 239.005.

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C. What records are and are not subject to the act?

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1. What kinds of records are covered?

“All public books and public records of a government entity,” which are not confidential are subject to the NPRA. “Public books" and "public records" are not defined by the NPRA. Generally, a document is a public book or public record if (1) the agency required the creation or submission and maintenance of the record; (2) the record was used to conduct or facilitate agency business; (3) the record was distributed to other offices or agencies for formal approval or reporting purposes; (4) the record documents official business action.

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2. What physical form of records are covered

A person may request a copy of the public record in any medium in which the public record is readily available. NRS 239.010(4).

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3. Are certain records available for inspection but not copying?

Privatization contracts executed by or on behalf of a governmental entity are open to public inspection during the regular business hours of the governmental entity, but presumably not for copying. NRS 239.0103.

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4. Telephone call logs

Records containing the name, address, telephone number or other identifying information of a natural person can be considered confidential. NRS 239.0105. The Nevada Supreme Court held that call logs maintained by the Las Vegas Metropolitan Police Department were public records. LVMPD v. Blackjack Bonding, 131 Nev. Adv. Op. 10, 343 P.3d 608, 611 (2015).

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5. Electronic records (e.g., databases, metadata)

The NPRA applies to electronic records. NAC 239.861.

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a. Can the requester choose a format for receiving records?

Yes, a person may request a copy of the public record in any medium in which the public record is readily available. NRS 239.010(4). The public agency may not deny a request because it would prefer to produce the records in a different format.

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b. Can the requester obtain a customized search of computer databases to fit particular needs

No. However, computer software can generate public records which are deemed to exist so long as a computer is already programmed to generate these records.

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c. Does the existence of information in electronic format affect its openness?

No.

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d. Online dissemination

There are no restrictions placed on the subsequent use of the public records by the NPRA.

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6. Email

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7. Text messages and other electronic messages

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8. Social media posts

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9. Computer software

Computer software developed by the government is not a public record, but the computer software may generate public records. The software can generate public records which are deemed to exist so long as computer is already programmed to generate these records.

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10. Can a requester ask for the creation or compilation of a new record?

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D. Fee provisions

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1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

A governmental entity may charge a fee for providing a copy of a public record. NRS 239.052(1). The fee cannot exceed the actual cost to the governmental entity except as otherwise set by statute. NRS 239.052(1). An agency must prepare and maintain a list of the fees that it charges. An agency must not charge a fee for determining whether a record is a public record, searching for or retrieving records, staff time for complying with a public records request, a requester’s use of a personal device to copy or photograph public records, or recouping the original cost of developing or producing the records.

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2. Particular fee specifications or provisions

An agency must not charge a fee for determining whether a record is a public record, searching for or retrieving records, staff time for complying with a public records request, a requester’s use of a personal device to copy or photograph public records, or recouping the original cost of developing or producing the records. NAC 239.864.

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3. Provisions for fee waivers

Fee waivers and partial fee waivers are available at the discretion of the governmental entity if the entity adopts a written policy that waives all or a portion of the charges for copies of public records and the entity posts notice detailing the terms of the policy in a conspicuous area. NRS 239.052(2). All fee waivers must be standardized by a written policy and evenly applied.

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4. Requirements or prohibitions regarding advance payment

An agency may request payment of the fees prior to releasing the records. Additionally, an agency may require the requester to pay a deposit of not more than the estimate of the actual cost of providing the copy. NAC 239.864.

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5. Have agencies imposed prohibitive fees to discourage requesters?

N/A

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6. Fees for electronic records

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E. Who enforces the Act?

The requester can apply to the district court in the county in which the book or record is located for an order compelling the disclosure of the records.

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1. Attorney General's role

A governmental entity can consult with the Attorney General’s office when presented with extraordinary or legally complex requests for public records.

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2. Availability of an ombudsman

N/A

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3. Commission or agency enforcement

N/A

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F. Are there sanctions for noncompliance?

The requester can recover his or her costs and reasonable attorney’s fees in the proceeding from the governmental entity. NRS 239.011. An officer who mutilates, destroys, conceals, erases, obliterates or falsifies any record or paper appertaining to his or her office, is guilty of a category C felony. NRS 239.310.

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G. Record-holder obligations

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1. Search obligations

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2. Proactive disclosure requirements

There is no requirement under the NPRA for affirmative disclosure. There are various provisions throughout the Nevada Revised Statutes compelling certain public disclosures and posting of public records.

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3. Records retention requirements

The Committee to Approve Schedules for the Retention and Disposition of Official State Records (State Records Committee or Committee) was created in NRS 239.073 to review and approve the minimum retention periods of official records. The official records created and preserved by an agency must be retained for the length of time established by the Committee. Agency records retention schedules are made readily available to agencies and to the public on the Nevada State Library, Archives and Public Records’ website. https://nsla.libguides.com/home.

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4. Provisions for broad, vague, or burdensome requests

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A. Exemptions in the open records statute

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1. Character of exemptions

NRS 239.001(3) declares that “[a]ny exemption, exception or balancing of interests which limits or restricts access to public books and records by members of the public must be construed narrowly.” NRS 239.010 sets forth a lengthy list of specific statutes that contain exemptions to the NPRA as well as a general provision that records “declared by law to be confidential” fall outside of the NPRA.

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2. Discussion of each exemption

NRS 239.0105 provides that records of a local governmental entity are confidential and not public records if they contain “(a) the name, address, telephone number or other identifying information of a natural person; and (b) [t]he natural person whose name, address, telephone number or other identifying information is contained in the records provided such information to the local governmental entity for the purpose of:

(1) Registering with or applying to the local governmental entity for the use of any recreational facility or portion thereof that the local governmental entity offers for use through the acceptance of reservations; or

(2) On his or her own behalf or on behalf of a minor child, registering or enrolling with or applying to the local governmental entity for participation in an instructional or recreational activity or event conducted, operated or sponsored by the local governmental entity.”

NRS 239.013 provides that any “records of a public library or other library which contain the identity of a user and the books, documents, films, recordings or other property of the library which were used are confidential and not public books or records within the meaning of NRS 239.010.”

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B. Other statutory exclusions

The Nevada Legislature has created exemptions to the NPRA either designating records to be confidential or not subject to public inspection. These exemptions are scattered throughout the Nevada Revised Statutes. Exceptions are also found in the Nevada Administrative Code.

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C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

Donrey of Nevada, Inc. v. Bradshaw in 1990. 106 Nev. 630 (1990) recognized the ability of the judiciary to balance “public policy considerations when release of records other than those specifically defined as criminal history records is sought.” Id. at 635. Therefore, the Court weighed “the absence of any privacy or law enforcement policy justifications for nondisclosure against the general policy in favor of open government.” Id. at 636. Based on the specific circumstances, the Court ordered the release of the entire police investigative report.

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D. Protective orders and government agreements to keep records confidential

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E. Interaction between federal and state law

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1. HIPAA

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2. DPPA

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3. FERPA

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4. Other

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F. Segregability requirements

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G. Agency obligation to identify basis of redaction or withholding

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III. Record categories - open or closed

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A. Autopsy and coroners reports

Autopsy and coroners reports are likely public records. See The Las Vegas Review-Journal v. Dist. Ct. (Hartfield), 134 Nev. Adv. Op. 7 (Feb. 27, 2018).

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B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)

NRS 618.341 provides that:

 

1.  Except as otherwise provided in this section, the public may inspect all records of the Division which contain information regarding:

(a) An oral or written complaint filed by an employee or a representative of employees alleging the existence of an imminent danger or a violation of a safety or health standard that threatens physical harm;

(b) The manner in which the Division acted on any such complaint;

(c) Any citation issued by the Division to an employer and the reason for its issuance; and

(d) Any penalty imposed by the Division on an employer and the reason therefor.

 

2.  The Division shall, upon oral or written request and payment of any applicable charges, provide to any person a copy of any record of the Division which is open to public inspection pursuant to subsection 1. The first six pages reproduced pursuant to each such request must be provided without charge. The charge for each additional page copied must not exceed the cost of reproduction.

 

3.  Except as otherwise provided in subsection 4 and NRS 239.0115, the Division shall keep confidential:

 

(a) The name of any employee who filed any complaint against an employer or who made any statement to the Division concerning an employer; and

(b) Any information which is part of a current investigation by the Division, but the fact that an investigation is being conducted is public information.

 

4.  The Division shall, upon the receipt of a written request from a law enforcement agency, disclose otherwise confidential information to that law enforcement agency for the limited purpose of pursuing a criminal investigation.”

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C. Bank records

Many bank records are closed by statute.

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D. Budgets

There is no statutory or case law addressing the issue, but NRS 353.205 contains certain provisions regarding the confidentiality of parts of proposed state budgets.

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E. Business records, financial data, trade secrets

Generally closed.

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F. Contracts, proposals and bids

Presumably closed. Invitations to bid are open. Nev. Op. Att'y Gen. 94-06 (April 7, 1994).

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G. Collective bargaining records

Presumably open.

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H. Economic development records

Records or other documents of clients will be kept confidential if so requested and approved by the agency. NRS 231.069.

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I. Election Records

See NRS Chapter 239 generally for election related questions

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J. Emergency Medical Services records

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K. Gun permits

The Nevada Supreme Court held that identity of the permittee of concealed firearms permit, are public records open to inspection, unless the records contained information that was expressly declared confidential by statute making applications for concealed firearms permits confidential. Reno Newspapers v. Haley, 234 P.3d 922 (2010).

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L. Homeland security and anti-terrorism measures

NRS Chapter 239 et. seq. deals with Homeland Security measures. The Nevada Homeland Security Commission is charged with proposing goals and programs to prevent terrorism.

NRS 239C.220 allows a “reporter or editorial employee who is employed by or affiliated with a newspaper, press association or commercially operated and federally licensed radio or television station and who uses the restricted document in the course of such employment or affiliation” to copy a restricted document.

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M. Hospital reports

Generally closed.

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N. Personnel records

Presumably open. Also, see NAC 248.718 regarding confidentiality of certain types of state personnel records.

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1. Salary

Presumably open

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2. Disciplinary records

Presumably open

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3. Applications

Presumably open

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4. Personally identifying information

Generally redacted pursuant to Donrey of Nevada, Inc. v. Bradshaw, 106 Nev. 630 (1990).

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5. Expense reports

There is no statutory or case law addressing the issue

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6. Evaluations/performance reviews

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7. Complaints filed against employees

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8. Other

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O. Police records

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1. Accident reports

Presumably open, but in the Nevada Op. Aty General 2009-05 (2009), it held that accident reports submitted by a driver involved in a traffic accident are confidential.

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2. Police blotter

Presumably open.

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3. 911 tapes

Presumably open. NRS 179.070(1)

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4. Investigatory records

See Donrey of Nevada, Inc. v. Bradshaw, 106 Nev. 630 (1990).

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5. Arrest records

See Donrey of Nevada, Inc. v. Bradshaw, 106 Nev. 630 (1990).

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6. Compilations of criminal histories

See Donrey of Nevada, Inc. v. Bradshaw, 106 Nev. 630 (1990).

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7. Victims

See Donrey of Nevada, Inc. v. Bradshaw, 106 Nev. 630 (1990).

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8. Confessions

See Donrey of Nevada, Inc. v. Bradshaw, 106 Nev. 630 (1990).

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9. Confidential informants

See Donrey of Nevada, Inc. v. Bradshaw, 106 Nev. 630 (1990).

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10. Police techniques

See Donrey of Nevada, Inc. v. Bradshaw, 106 Nev. 630 (1990).

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11. Mugshots

See Donrey of Nevada, Inc. v. Bradshaw, 106 Nev. 630 (1990).

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12. Sex offender records

See Donrey of Nevada, Inc. v. Bradshaw, 106 Nev. 630 (1990). See NRS 62h320(3) regarding juvenile sex offenders.

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13. Emergency medical services records

See Donrey of Nevada, Inc. v. Bradshaw, 106 Nev. 630 (1990).

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14. Police video (e.g, body camera footage, dashcam videos)

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15. Biometric data (e.g., fingerprints)

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16. Arrest/search warrants and supporting affidavits

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17. Physical evidence

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P. Prison, parole and probation reports

See Donrey of Nevada, Inc. v. Bradshaw, 106 Nev. 630 (1990).

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Q. Professional licensing records

See Donrey of Nevada, Inc. v. Bradshaw, 106 Nev. 630 (1990).

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R. Public utility records

See NRS 703.296.

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S. Real estate appraisals, negotiations

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1. Appraisals

There is no statutory or case law addressing the issue but see NAC 645C.040 regarding confidentiality of certain records regarding appraisers.

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2. Negotiations

There is no statutory or case law addressing the issue

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3. Transactions

There is no statutory or case law addressing the issue

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4. Deeds, liens, foreclosures, title history

There is no statutory or case law addressing the issue

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5. Zoning records

There is no statutory or case law addressing the issue

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T. School and university records

See Donrey of Nevada, Inc. v. Bradshaw, 106 Nev. 630 (1990).

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1. Athletic records

See Donrey of Nevada, Inc. v. Bradshaw, 106 Nev. 630 (1990).

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2. Trustee records

See Donrey of Nevada, Inc. v. Bradshaw, 106 Nev. 630 (1990).

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3. Student records

See Donrey of Nevada, Inc. v. Bradshaw, 106 Nev. 630 (1990).

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4. School foundation/fundraising/donor records

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5. Research material or publications

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6. Other

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U. State guard records

See Donrey of Nevada, Inc. v. Bradshaw, 106 Nev. 630 (1990).

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V. Tax records

See Donrey of Nevada, Inc. v. Bradshaw, 106 Nev. 630 (1990).

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W. Vital Statistics

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1. Birth certificates

See NAC 440.021.

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2. Marriage and divorce

Presumably open, but see NRS 125.130(3). See NRS 122.040(8) regarding openness of marriage licenses.

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3. Death certificates

Presumably open.  See 1990 Nev. Op. Atty Gen., Opinion 90-8.

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4. Infectious disease and health epidemics

There is no statutory or case law addressing the issue

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IV. Procedure for obtaining records

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A. How to start

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1. Who receives a request?

The public records official of the agency. Each public agency in Nevada must adopt a policy with respect to public records requests and this should include an identification of the public records official.

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2. Does the law cover oral requests?

Yes. NRS 239.0107(1) permits written or oral requests, either one of which is sufficient to allow the requester to inspect or copy the public book or record. While written requests are preferred, an oral request is valid although the governmental entity may ask the requester to confirm the request in writing in order to eliminate any confusion regarding the request.

If the request is denied, the governmental entity must provide, in writing, notice of this fact to the requester along with sufficient information to explain the basis for the denial. NRS 239.0107.

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3. Required contents of a written request

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4. Can the requester choose a format for receiving records?

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5. Availability of expedited processing

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B. How long to wait

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1. Statutory, regulatory or court-set time limits for agency response

The law requires a response from the public agency not later than the end of the fifth business day after the records request is received. NRS 239.0107.

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2. Informal telephone inquiry as to status

There is no prohibition against an informal telephone inquiry.

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3. Is delay recognized as a denial for appeal purposes?

No case authority recognizes delay as a denial for appeal purposes.

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4. Any other recourse to encourage a response

The public records official has a duty to assist the requester in making focused and effective requests. Outside of formal legal action, there is no recourse to expedite the public records request.

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C. Administrative appeal

The NPRA makes no provision for administrative review of denials.

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1. Time limit to file an appeal

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2. To whom is an appeal directed?

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3. Fee issues

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4. Contents of appeal

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5. Waiting for a response

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6. Subsequent remedies

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D. Additional dispute resolution procedures

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1. Attorney General

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2. Ombudsperson

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3. Other

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E. Court action

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1. Who may sue?

Any requester of records may apply to the district court for an order permitting inspection or copying or for an order requiring the governmental entity to provide a copy to the requester. NRS 239.011(1).

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2. Priority

The NPRA states: “The court shall give this matter priority over other civil matters to which priority is not given by other statutes." NRS 239.011(2).

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3. Pro se

Pro se representation is permitted at the District Court level.

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4. Issues the court will address

The NPRA specifically provides only for an action addressing permission to inspect or copy the requested record.

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a. Denial

There is no statutory or case law addressing the issue

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b. Fees for records

There is no statutory or case law addressing the issue

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c. Delays

There is no statutory or case law addressing the issue

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d. Patterns for future access (declaratory judgment)

There is no statutory or case law addressing the issue

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5. Pleading format

Either a suit filed under the Nevada Rules of Civil Procedure or a petition for a writ of mandate under Chapter 34 of Nevada Revised Statutes may be appropriate.

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6. Time limit for filing suit

The NPRA provides no time limit for filing suit. A suit may be filed after a request for inspection or copying has been denied.

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7. What court?

Suit should be filed in "the district court in the county in which the book or record is located." NRS 239.011.

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8. Burden of proof

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9. Judicial remedies available

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10. Litigation expenses

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a. Attorney fees

Recoverable. NRS 239.011(2).

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b. Court and litigation costs

Recoverable. NRS 239.011(2).

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11. Fines

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12. Other penalties

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13. Settlement, pros and cons

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F. Appealing initial court decisions

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1. Appeal routes

A district court’s order is appealable to the Nevada Supreme Court. NRAP 3.

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2. Time limits for filing appeals

The time limit for filing an appeal is within thirty (30) days after written notice of entry of the final judgment is served. NRAP 4(a)(1).

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3. Contact of interested amici

Interested amici may be allowed to participate in an appeal. NRAP 29. A likely amicus in public records cases is the Nevada Press Association. The association, located in Carson City, may be reached at (702) 885-0866.

The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state's highest court.

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G. Addressing government suits against disclosure

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Open Meetings

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I. Statute - basic application

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A. Who may attend?

Nevada's Open Meeting Law (“OML”) states: "all meetings of public bodies must be open and public, and all persons must be permitted to attend any meeting of these bodies." NRS 241.020(1).

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B. What governments are subject to the law?

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1. State

Any administrative, advisory, executive or legislative body of the State is covered by the OML. NRS 241.015(4)(a). However, the Legislature of the State of Nevada is excluded from the OML as are Legislative committees. NRS 241.016(2)(a).

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2. County

County governments are covered by the OML. NRS 241.015(4)(a).

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3. Local or municipal

Local and municipal governments are covered by the OML. NRS 241.015(4)(a).

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C. What bodies are covered by the law?

A public body must consist of more than two persons and be connected to state or local government. NRS 241.015(4). A public body is specifically defined by NRS 241.015(4) as:

 

(a) Any administrative, advisory, executive or legislative body of the State or a local government consisting of at least two persons which expends or disburses or is supported in whole or in part by tax revenue or which advises or makes recommendations to any entity which expends or disburses or is supported in whole or in part by tax revenue, including, but not limited to, any board, commission, committee, subcommittee or other subsidiary thereof and includes an educational foundation as defined in subsection 3 of NRS 388.750 and a university foundation as defined in subsection 3 of NRS 396.405, if the administrative, advisory, executive or legislative body is created by:

(1) The Constitution of this State;

(2) Any statute of this State;

(3) A city charter and any city ordinance which has been filed or recorded as required by the applicable law;

(4) The Nevada Administrative Code;

(5) A resolution or other formal designation by such a body created by a statute of this State or an ordinance of a local government;

(6) An executive order issued by the Governor; or

(7) A resolution or an action by the governing body of a political subdivision of this State;

(b) Any board, commission or committee consisting of at least two persons appointed by:

(1) The Governor or a public officer who is under the direction of the Governor, if the board, commission or committee has at least two members who are not employees of the Executive Department of the State Government;

(2) An entity in the Executive Department of the State Government consisting of members appointed by the Governor, if the board, commission or committee otherwise meets the definition of a public body pursuant to this subsection; or

(3) A public officer who is under the direction of an agency or other entity in the Executive Department of the State Government consisting of members appointed by the Governor, if the board, commission or committee has at least two members who are not employed by the public officer or entity; and

(c) A limited-purpose association that is created for a rural agricultural residential common-interest community as defined in subsection 6 of NRS 116.1201.

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1. Executive branch agencies

Any commission, committee, or board appointed by the Governor with at least two members who are not employees of the State Executive Department are defined as a public body and subject to the OML. NRS 241.015(4)(a). The Governor, acting in his or her or official executive capacity, is not subject to the OML.

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a. What officials are covered?

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b. Are certain executive functions covered?

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c. Are only certain agencies subject to the act?

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2. Legislative bodies

The Legislature of the State of Nevada is excluded from the OML as are Legislative committees. NRS 241.016(2)(a). Article 4, section 15 of the Nevada Constitution provides that the “doors of each House shall be kept open during its session, and neither shall, without the consent of the other, adjourn for more than three days nor to any other place than that in which they may be holding their sessions. The meetings of all legislative committees must be open to the public, except meetings held to consider the character, alleged misconduct, professional competence, or physical or mental health of a person.”

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3. Courts

Judicial proceedings including the Commission on Judicial Selection and, except for NRS 1.4687, the Commission on Judicial Discipline are exempt from the OML. NRS 241.016(2)(b).

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4. Nongovernmental bodies receiving public funds or benefits

The receipt of public funds will not automatically make the organization a public body. A nongovernmental body composed of private citizens will be considered to be a public body though if it performs any administrative, advisory, executive, or legislative function of state or local government and it expends or disburses or is supported in whole or in part by tax revenue.

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5. Nongovernmental groups whose members include governmental officials

The membership of a few government officials in the nongovernmental group will not automatically make the organization a public body. A nongovernmental group whose members include governmental officials will be subject to the OML if it is supported in part by tax revenue and is formed by a public body and performs local governmental functions.

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6. Multi-state or regional bodies

If the multi-state or regional body is an administrative, advisory, executive or legislative body composed of public bodies or is created by a governmental entity, then it likely is subject to the OML.

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7. Advisory boards and commissions, quasi-governmental entities

An advisory board, commission, or quasi-governmental entity will be considered a public body if it performs any administrative, advisory, executive, or legislative function of state or local government and it expends or disburses or is supported in whole or in part by tax revenue.

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8. Other bodies to which governmental or public functions are delegated

Other bodies performing administrative, advisory, executive, or legislative function of state or local government will be covered by the OML if they expend or disburse or are supported in whole or in part by tax revenue.

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9. Appointed as well as elected bodies

Both appointed as well as elected bodies are generally subject to the OML.

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D. What constitutes a meeting subject to the law

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1. Number that must be present

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a. Must a minimum number be present to constitute a "meeting"?

To have a meeting, a quorum of the members of a public body must be present. NRS 241.015(5).

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b. What effect does absence of a quorum have?

To have a meeting, a quorum of the members of a public body must be present. NRS 241.015(5).

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2. Nature of business subject to the law

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a. "Information gathering" and "fact-finding" sessions

Private briefings among staff of a public body and a non-quorum of members of a public body are not meetings for purposes of the OML. Furthermore, the OML does not apply to most internal agency staff meetings where staff members make individual reports and recommendation to a superior.

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b. Deliberation toward decisions

Deliberations toward decisions are subject to the OML, even if they are informal.  NRS 241.015(3); Op. Nev. Att’y Gen. No. 241; Op. Nev. Att’y Gen. No. 380 (Jan. 1, 1967).

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3. Electronic meetings

A meeting can occur in person or electronically. NRS 241.015(3)(a). The law states that electronic communication "must not be used to circumvent the spirit or letter of this chapter in order to discuss or act upon a matter over which the public body has supervision, control, jurisdiction or advisory powers." NRS 241.030(4).

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a. Conference calls and video/Internet conferencing

A conference call or video/internet conferencing will be subject to the OML if a quorum participates. The meeting will be subject to the notice requirements of the OML and the public must have an opportunity to listen to the discussions and votes of the electronic meeting.

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b. E-mail

Email communications that are used by a quorum of the members of a public body to deliberate towards a decision or that are used to poll members of a public body are likely covered by the law. See also, Del Papa v. Board of Regents, 956 P.2d 770, 114 Nev. 388, 956 P.2d 770 (2000).

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c. Text messages

Text messages that are used by a quorum of the members of a public body to deliberate towards a decision or that are used to poll members of a public body are likely covered by the law.

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d. Instant messaging

Instant messages that are used by a quorum of the members of a public body to deliberate towards a decision or that are used to poll members of a public body are likely covered by the law.

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e. Social media and online discussion boards

Social media messages that are used by a quorum of the members of a public body to deliberate towards a decision or that are used to poll members of a public body are likely covered by the law. The OML does not define or distinguish regular meetings, except as opposed to an emergency meeting.

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E. Categories of meetings subject to the law

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1. Regular meetings

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a. Definition

The OML does not define or distinguish regular meetings, except as opposed to an emergency meeting.

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b. Notice

Written notice of all meetings of all public bodies must be posted in at least four places within the jurisdiction of the public body and mailed at least three working days before the meeting is to occur. NRS 241.020.

Written notice must be mailed to any person who has requested notice of the meetings of the body. A request for notice lapses six months after it is made. The notice must be delivered to the postal service used by the body not later than 9 a.m. of the third working day before the meeting. N.R.S. 241.020(3)(b). A public body does not satisfy the requirements of the Open Meeting Law by sending an e-mail to an individual who has requested personal notice of public meetings although the individual may waive his or her statutory rights and instead may elect to receive timely notice by e-mail. See NRS 241.020(3)(c)(2) and Op. Nev. Att'y General No 2001-01 (February 9, 2001).

An agenda must include: (1) a clear and complete statement of the topics scheduled to be considered during the meeting; (2)  list describing the items on which action may be taken and clearly denoting that action may be taken on those items; (3) a period devoted to comments by the general public; (4) if any portion of the meeting will be closed to consider the character, alleged misconduct or professional competence of a person, the name of the person whose character, alleged misconduct or professional competence will be considered; (5) if, during any portion of the meeting, the public body will consider whether to take administrative action against a person, the name of the person against whom administrative action may be taken; (6) notification that items on the agenda may be taken out of order, two or more agenda items may be combined; and the public body may remove an item from the agenda or delay discussion on the item at any time. NRS 241.020(2)(d)(1).

Failure to give adequate notice implicates the full range of remedies provided under the OML, including having any action taken by a public body without proper notice declared void. NRS 241.037.

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c. Minutes

Minutes must include: (1) the date, time and place of the meeting; (2) those members of the public body who were present and those who were absent; (3) the substance of all matters discussed and, at the request of any member, a record of each member's vote on any matter decided by vote; (4) the substance of any remarks made by members of the public who address the body if they request that the minutes reflect their remarks, including any written remarks; and (5) any other information which any member of the public body requests to be included or reflected in the minutes. NRS 241.035(1). Minutes of public meetings are public records and must be available within 30 days and preserved for at least 5 years NRS 241.035(2).

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2. Special or emergency meetings

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a. Definition

In an emergency, a public body may act without complying with certain OML requirements related to notice and agendas. “Emergency” means “an unforeseen circumstance which requires immediate action and includes, but is not limited to: (a) Disasters caused by fire, flood, earthquake or other natural causes; or (b) Any impairment of the health and safety of the public." NRS 241.020(10). Except for the exemptions from the notice and agenda requirements, all other requirements of the OML must continue to be observed for emergency meetings.

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b. Notice requirements

The law does not provide a time limit for giving notice of emergency meetings. Emergency meetings are exempt from the three-working-day notice requirement. N.R.S. 241.020(2).
Since emergency meetings are not required to provide notice within any given time frame, it is not clear whether any of the other, regular notice provisions apply. Presumably, a public body holding an emergency meeting should attempt to comply with the remaining notice requirements, if possible, in order to comply with the spirit, if not the letter, of the law.
Since emergency meetings are not required to provide notice within any given time frame, it is not clear whether any of the other, regular notice provisions apply. Presumably, a public body holding an emergency meeting should attempt to comply with the remaining notice requirements, if possible, in order to comply with the spirit, if not the letter, of the law.
Since emergency meetings are not required to provide notice within any given time frame, it is not clear whether any of the other, regular notice provisions apply. Presumably, a public body holding an emergency meeting should attempt to comply with the remaining notice requirements, if possible, in order to comply with the spirit, if not the letter, of the law.
Since emergency meetings are not required to provide notice within any given time frame, it is not clear whether any of the other, regular notice provisions apply. Presumably, a public body holding an emergency meeting should attempt to comply with the remaining notice requirements, if possible, in order to comply with the spirit, if not the letter, of the law.
To the extent that notice requirements may apply to emergency meetings, the remedies for failure to give adequate notice would be the same as in regular meetings. N.R.S. 241.037.

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c. Minutes

Minutes of emergency meetings must contain the same information as minutes of regular meetings and are still considered public records. NRS 241.035(1)(2). The minutes should reflect the nature of the emergency and why notice could not be timely given.

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3. Closed meetings or executive sessions

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a. Definition

Closed sessions may be held under a number of specific statutes. NRS 241.020. Where there is a specific statute authorizing a closed meeting, this statute prevails over the OML.
(1) By any public body to consider character, alleged misconduct, professional competence, or the physical or mental health of a person, with some exceptions, or to prepare, revise, administer, or grade examinations administered on behalf of the public body, or to consider an appeal by a person of the results of an examination administered on behalf of the public body. See NRS 241.030 and § 9.04.
(2) By the Public Employees Retirement Board: (1) to meet with investment counsel, provided the closed session is limited to planning future investments or the establishment of investment objectives and policies, and (2) to meet with legal counsel provided the closed session is limited to advice on claims or suits by or against the system. NRS 286.150(2).
(3) By the State Board of Pharmacy to deliberate on the decision in an administrative action (subsequent to a public evidentiary hearing) or to prepare, grade, or administer examinations. See NRS 639.050(3) and Op. Nev. Att’y Gen. No. 81-C (June 25, 1981).
(4) By any public body to take up matters or conduct activities that are exempt under the Open Meeting Law. See Part 4 of this manual. If the public body has other matters that must be considered in an open meeting, the Office of the Attorney General believes that a public body may take up an exempt matter during the open meeting if it desires. However, by virtue of the exemption, none of the open meeting requirements will apply to the exempt activity, although it is recommended that a motion or announcement be made identifying the activity as an exempt activity to avoid confusion between an exempt activity and a closed session to which certain open meeting requirements may otherwise apply.
(5) By public housing authorities when negotiating the sale and purchase of property, but the formal acceptance of the negotiated settlement should be made in an open meeting. See Op. Nev. Att’y Gen. No. 372 (December 29, 1966).
(6) As authorized by a specific statute. NRS 241.020(1).

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b. Notice requirements

Closed meetings are subject to the same requirements as open meetings.

In addition to the notice requirements for open meetings, a closed meeting to consider the character, misconduct, competence or health of a person may not be held unless the subject of the meeting is served with written notice of the meeting. NRS 241.033. The agenda must state the purpose for the closed meeting and the name of the person whose character, alleged misconduct or professional competence will be considered in a closed meeting. NRS 241.020(4).

The penalties for failing to give adequate notice of a closed meeting are the same as for open meetings.

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c. Minutes

Minutes of closed meetings must contain the same information as minutes of open meetings. NRS 241.035(2). Minutes of closed meetings become public records when the body determines that the matters discussed no longer require confidentiality or other specific circumstances are satisfied. NRS 241.035(2)(a)(b)(c).

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d. Requirement to meet in public before closing meeting

A closed meeting may be held upon a motion, during a regularly noticed meeting, specifying the business to be considered during the closed session and the statutory authority pursuant to which the public body is authorized to close the meeting. NRS 241.030(3).

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e. Requirement to state statutory authority for closing meetings before closure

The law contains no specific requirement requiring a body to state the statutory authority for closing a meeting.

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f. Tape recording requirements

Closed meetings must be tape-recorded. NRS 241.035(4). The tape shall be made available to the Attorney General upon request. The tape must be retained for at least one year after the adjournment of the meeting at which it was transcribed. The tape must be made available to the public during the time the record is retained. NRS 241.035(4)(b).

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F. Recording/broadcast of meetings

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1. Sound recordings allowed

Sound recordings or any other means of sound reproduction are permissible so long as they do not interfere with the conduct of the meeting. NRS 241.035(3).

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2. Photographic recordings allowed

A meeting may be recorded using any means of video reproduction so long as it does not interfere with the conduct of the meeting. NRS 241.035(3).

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G. Access to meeting materials, reports and agendas

NRS 241.0200(6) states that a public body shall, at no charge, provide at least one copy of a meeting agenda, a proposed ordinance or regulation, and supporting reports or materials.

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H. Are there sanctions for noncompliance?

NRS 241.035(4) states that if a public body makes a good faith effort to comply with transcription requirements but is prevented from doing so because of factors beyond the public body's reasonable control, including, without limitation, a power outage, a mechanical failure or other unforeseen event, such failure does not constitute a violation of the OML.

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A. Exemptions in the open meetings statute

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1. Character of exemptions

Exemptions must be specific and will be strictly construed by the courts. McKay v. Board of Supervisors, 102 Nev. 644, 730 P.2d 438 (1986). In addition, the law itself declares that exemptions ". . . must not be used to circumvent the spirit or letter of this chapter in order to discuss or act upon a matter over which the public body has supervision, control, jurisdiction or advisory powers." NRS 241.030(4). Exemption means that certain public business may be conducted without regard to any requirement of the Open Meeting Law because the Legislature has weighed the benefits of secrecy with the OML’s policy of openness, while other statutes merely allow certain activities to be closed to the public. These statutes create exceptions to the OML, but a public body still must record and keep minutes of closed meetings under statutes allowing for exceptions.

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2. Description of each exemption

1. N.R.S. 241.030 permits a public body to close a meeting to consider the character, alleged misconduct, professional competence, or physical or mental health of a person. This provision cannot be used to close a meeting to consider the character, alleged misconduct, professional competence, or physical or mental health of an elected member of a public body or a person who is an appointed public officer or who services at the pleasure of a public body as a chief executive or administrative office or in a comparable position, including, without limitation, a president of a university or community college within the University and Community College System of Nevada, a superintendent of a county school district, a county manager and a city manager. NRS 241.031(1)(a)(b). This exception does not apply if the consideration does not pertain to the person's role as an elected member of a public body or as an appointed public officer. NRS 241.031(2).
2. Judiciary proceedings are exempt. NRS 241.030(4)(a).
3. Any person who willfully disrupts a meeting to the extent that its orderly conduct is made impractical may be removed. NRS 241.030(4)(b).
4. Witnesses may be excluded from a meeting during the examination of other witnesses. NRS 241.030(4)(b).

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B. Any other statutory requirements for closed or open meetings

1. Ethics commission meetings at which information concerning the propriety of the conduct of any public officer or employee is received may be closed. NRS 281.511(9).
2. Labor negotiations between public bodies and employees or their unions, including fact finding by negotiations, may be closed. NRS 288.220.
3. School board of trustee hearings concerning suspension or expulsion of students may be closed. NRS 392.467(3).
4. Investigative meetings of the Nevada Gaming Control Board may be closed. NRS 463.110.

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C. Court mandated opening, closing

The Nevada Supreme Court has clarified that votes must occur in open meetings, even if the vote is related to an issue discussed in a validly closed meeting. McKay v. Board of Supervisors, 102 Nev. 644, 730 P.2d 438 (1986).

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III. Meeting categories - open or closed

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A. Adjudications by administrative bodies

Except as otherwise provided by a specific exemption, all deliberations and adjudications of an administrative body are subject to the OML. NRS 241.016(1).

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1. Deliberations closed, but not fact-finding

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2. Only certain adjudications closed, i.e. under certain statutes

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B. Budget sessions

Open.

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C. Business and industry relations

Open.

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D. Federal programs

Open. See City of Reno v. Reno-Gazette-Journal, 119 Nev. 55, 59 (2003).

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E. Financial data of public bodies

Open.

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F. Financial data, trade secrets, or proprietary data of private corporations and individuals

If the purpose of a meeting is to receive information that is required by law to be kept confidential, the meeting may be closed for the limited purpose of receiving that information.

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G. Gifts, trusts and honorary degrees

Open.

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H. Grand jury testimony by public employees

Closed.

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I. Licensing examinations

Closed. NRS 241.030(1)(b).

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J. Litigation, pending litigation or other attorney-client privileges

A meeting held for the purpose of having an attorney-client discussion of potential and existing litigation pursuant to NRS 241.015(2)(b)(2) is not a meeting for purposes of the Open Meeting Law. However, NRS 241.015(2)(b)(2) does not permit a public body to take action during an attorney-client discussion.

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K. Negotiations and collective bargaining of public employees

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1. Any sessions regarding collective bargaining

Closed. NRS 288.020.

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2. Only those between the public employees and the public body

Closed. NRS 288.020.

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L. Parole board meetings, or meetings involving parole board decisions

Open.

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M. Patients, discussions on individual patients

A meeting may be closed to consider the health of a person. NRS 241.030(1).

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N. Personnel matters

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1. Interviews for public employment

Under NRS 241.030(4)(e), closed sessions may not be held "for the discussion of the appointment of any person to public office or as a member of a public body." Other interviews may be closed.

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2. Disciplinary matters, performance or ethics of public employees

May be closed. A person whose character, alleged misconduct, professional competence, or physical or mental health will be considered by a public body during a meeting may waive the closure of the meeting and request that the meeting or relevant portion thereof be open to the public. N.R.S. 241.030(2). The request must be honored unless the consideration of the character, alleged misconduct, professional competence, or physical or mental health of the requester involves the appearance before the public body of another person who does not desire that the meeting or relevant portion thereof be open to the public. NRS 241.030(2)(b) NRS 241.031(1)(a) provides that a public body shall not hold a closed meeting to consider the character, alleged misconduct or professional competence of: (a) an elected member of a public body; or (b) a person who is an appointment public officer or who serves at the pleasure of a public body as a chief executive or administrative office or in a comparable position, including, without limitation a president of a university or community college within the University and Community College System of Nevada, a superintendent of a county school district, a county manager and a city manager.

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3. Dismissal, considering dismissal of public employees

May be closed, but vote to dismiss employee must occur in an open meeting. McKay v. Board of Supervisors, 102 Nev. 644, 730 P.2d 438 (1986). See NRS. 241.030(2) supra.

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O. Real estate negotiations

Open.

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P. Security, national and/or state, of buildings, personnel or other

P. Security, national and/or state, of buildings, personnel or other.

The Nevada Homeland Security Commission may meet in closed session to receive security briefings, discuss procedures for responding to acts of terrorism and emergencies, and discuss deficiencies in security. NRS 239C.140(2).

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Q. Students, discussions on individual students

May be closed under general provision allowing closed meeting to consider character or alleged misconduct. In addition, school board of trustee hearings concerning suspension or expulsion of students may be closed. NRS 392.467(3).

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IV. Procedure for asserting right of access

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A. When to challenge

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1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?

There is no provision in the law for expedited proceedings.

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2. When barred from attending

An injunction may be attained before the meeting, pursuant to the Nevada Rules of Civil Procedure, to require compliance with the law. NRS 241.037.

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3. To set aside decision

A suit to void an action taken in violation of the law must be filed within 60 days. NRS 241.037(3).

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4. For ruling on future meetings

The law states that an injunction may be attained to require compliance with the law. NRS. 241.037(1).

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5. Other

A suit brought against a public body to require compliance with the provisions of this chapter must be commenced within 120 days after the action objected to was taken by that public body in violation of this chapter. NRS 241.037.

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B. How to start

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1. Where to ask for ruling

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a. Administrative forum

An administrative forum is not available for OML complaints.

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b. State attorney general

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c. Court

Any person or the Attorney General may file suit to have an action taken by a public body declared void or to require compliance with the OML. NRS 241.037.

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2. Applicable time limits

A suit to void an action taken in violation of the law must be filed within 60 days. A suit to require compliance with the law must be brought within 120 days after the action objected to was taken by the public body. NRS 241.037.

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3. Contents of request for ruling

While no ruling may be obtained, a complaint to the Attorney General for possible action should be in writing and describe the body, agenda, date of meeting and the events leading to closure. NRS 241.039.

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4. How long should you wait for a response

If the Attorney General does not respond quickly, then a complaint may need to be filed to meet the 60-day time limit for voiding actions taken in violation of the law.

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5. Are subsequent or concurrent measures (formal or informal) available?

No.

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C. Court review of administrative decision

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1. Who may sue?

The Attorney General and any person denied a right conferred by the law may sue. NRS 241.037.

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2. Will the court give priority to the pleading?

There is no provision in the law giving preference to these cases.

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3. Pro se possibility, advisability

Pro se representation is possible at the district court.

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4. What issues will the court address?

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a. Open the meeting

A court can grant an injunction requiring an open meeting.

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b. Invalidate the decision

A court can grant an injunction requiring an open meeting.

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c. Order future meetings open

A court can issue an injunction requiring future meetings to be kept open.

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5. Pleading format

A private party could either file a suit Nevada Rules of Civil Procedure or file a petition for a writ of mandate under Chapter 34 of Nevada Revised Statutes.

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6. Time limit for filing suit

A suit to void an action taken in violation of the law must be filed within 60 days. A suit to require compliance with the law must be brought within 120 days after the action objected to was taken by the public body. NRS 241.037.

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7. What court?

A person may file suit in the district court of the district in which the public body ordinarily holds its meetings or in the district in which the plaintiff resides. NRS 241.037(2).

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8. Judicial remedies available

Judicial remedies include injunctive relief and the voiding of actions taken in violation of the law.

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9. Availability of court costs and attorney's fees

The court may order the payment of reasonable attorney fees and court costs to a successful plaintiff in a suit brought pursuant to the law. NRS 241.037.

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10. Fines

A maximum of a $500 civil penalty.

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11. Other penalties

A violation of the OML may result in a misdemeanor for a member of a public body who attends a meeting where action is taken in violation of the OML, with knowledge of the fact that the meeting is in violation thereof. NRS 241.040(1). A person who willfully fails or refuses to comply with a subpoena issued by the Attomey General investigating violations of the OML is guilty of a misdemeanor.

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D. Appealing initial court decisions

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1. Appeal routes

A court's order granting or denying relief under the OML is appealable to the Nevada Supreme Court as a final judgment on the merits. NRAP 3.

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2. Time limits for filing appeals

The time limit for filing an appeal is within thirty (30) days after the notice of entry of judgment is served. NRAP 4.

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3. Contact of interested amici

Interested amici may be allowed to participate in an appeal. NRAP 29. A likely amicus in open meetings cases is the Nevada Press Association. The association, located in Carson City, may be reached at (702) 885-0866.

The Reporters Committee for Freedom of the Press often files amicus curiae briefs in cases involving significant media law issues before a state's highest court.

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V. Asserting a right to comment

Legislative history on Nevada law suggests that legislators intended to allow members of the public to bring "unagendized topics to the attention of a public body for discussion purposes only." See 1991 Nev. Op. Atty. Gen. 6 (May 23, 1991), fn 1.

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A. Is there a right to participate in public meetings?

A member of the public has a right to address the public body during the public comment period. NRS 241.020(2)(d)(3). A public body must adopt one of two alternative public comment agenda procedures. First, a public body may comply by agendizing one public comment period before any action items are heard by the public body and later it must hear another period of public comment before adjournment. Second, a public body must offer multiple periods of public comment, which heard after each agenda item, but before the public body takes action.

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B. Must a commenter give notice of intentions to comment?

No. See Nevada OMLO 99-11 where the Attorney General noted that a practice of requiring persons to sign up three and one-half hours in advance to speak at a public meeting can have the effect of unnecessarily restricting public comment.

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C. Can a public body limit comment?

C. Can a public body limit comment?

The Attorney General has opined that a public body may create reasonable rules and regulations regarding written remarks of members of the public. The rules and regulations may not discourage public comment. Nevada Op. Att'y Gen. 2005-08. The Attorney General believes that limits must be viewpoint neutral.

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D. How can a participant assert rights to comment?

A member of the public should sign up if a sign-up is provided before or during the meeting to speak or approach the podium during the public comment period.

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E. Are there sanctions for unapproved comment?

If a person willfully disrupts a meeting to the extent that its orderly conduct is made impractical, the person may be removed from the meeting. NRS 241.030(3)(b).

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Appendix

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