The public’s right denied

The law says in clear language that the public can examine and copy all of a public agency’s records, except those declared confidential by other laws.

In reality, however, ordinary citizens, activists and journalists in Nevada are every day denied access to information that is legally public. They are also denied other information that logically ought to be public, but has been exempted by statutes which principally benefit special interests.

Such secrecy doesn’t merely frustrate the curious journalist; it also frustrates the intelligent citizen trying to exercise due diligence when selecting a physician or lawyer, investing money, taking a job at a Nevada business or hiring somebody to work at his own.

Recognizing that the same struggle proceeds in nearly every state and city as well as at the federal level, journalists mark National Sunshine Week, an annual period beginning today, by celebrating that struggle and evaluating who’s winning. In Nevada, the final score remains in doubt: While thoughtful legislators made significant improvements on behalf of open government in the 2007 session, much remains to be done.

Some Nevada journalists are pledging to ask candidates in the 2008 elections pointed questions about open government. These questions were suggested by Barry Smith, executive director of the Nevada Press Association.

1. "How would you balance privacy concerns with public access to information collected by government agencies? In Nevada, who should be making the decision on what material should be released to the public?"

The perfectly clear Nevada law, explained Smith, was compromised by a Nevada Supreme Court decision requiring that when public records are requested, the holder of the records should decide whether the public interest in releasing the records outweighs the public interest in withholding them. "As it works now, it’s up to any administrator to make that decision," he said. Decisions are inconsistent and sometimes poorly explained, reflecting different personalities, education levels and backgrounds among administrators. Smith suggests the Legislature should designate a single authority, perhaps an ombudsman in the secretary of state’s office, to make such rulings.

2. "How much public information should be available online? Do you see a difference between physical access, such as going to an office to look at documents, and making those documents available on the Internet?"

Smith points out that many who need access to documents aren’t able to get to the courthouse during business hours, and online access is now the expectation of the society at large.

Review-Journal columnist Jane Ann Morrison has pointed out that the Nevada Board of Medicine, which used to list online any malpractice judgments against a doctor licensed in Nevada, has removed that information from its Web site. Other states typically provide it.

3. "Do you support continuing the legal requirement of public notices in newspapers?"

There’s a tendency for public meeting notices to be posted on an agency’s Web site, and some sentiment to post them nowhere else. But Smith argues that one idea behind the long-standing publication requirement is to have a third party certify that the necessary information was published where anybody could get it. Some government Web sites are difficult to negotiate, he points out.

4. "How well do you think Nevada’s open meeting law serves the public in informing them of the actions of state and local elected officials?"

5. "Are there types of decisions by elected officials you think would be better made behind closed doors?"

There are appropriate Legislative exemptions for some decisions such as real estate negotiations, but Nevada public agencies have long been noted for creatively interpreting those loopholes to keep all sorts of discussions from public scrutiny. However, state Sen. Terry Care, D-Las Vegas, whose open records bill in the 2007 Legislature eventually incorporated improvements from several other legislators, said, "I took the position that regents would get used to conducting the evaluations of university presidents in the open, and they have."

6. "How would you balance homeland security concerns with public access to government information? Are there categories that should never be available to the general public?"

Smith explained, "This is just a good discussion to have. Some of the material being withheld borders on the absurd. There was a company going before the Nevada Tax Commission, and part of their submission was a list of all their offices. They contended this list should not be made a public part of the court record, yet these offices are all listed in the phone book."

7. "Do Nevada’s campaign-finance reporting laws provide enough information to tell voters who is providing the money to support political campaigns? "

Smith thinks they don’t. "There’s not a lot of detail required. You see just list after list of acronyms and a post office box, and unless you put in the time and effort to check them out one by one, it’s hard to know who’s making a donation." Besides the alphabet-soup of political action committees, Nevada allows corporate contributions, and a person perusing reports runs into numerous limited liability corporations fronting for special interests.

Similarly, an ordinary consumer seeking to perform due diligence about some company with which he is contemplating doing business will find it hard to do in Nevada. Nevada’s incorporation laws in recent years have actually required less information than formerly, and have endeared themselves to professional frauds and white-collar criminals.

Exposed for unethical business practices, the con man need only form and hide behind another limited liability corporation to escape his well-earned negative reputation.

"The LLC lobby really bamboozles the Legislature," said Barbara Buckley, a Las Vegas Democrat and Assembly speaker. Whenever lawmakers suggest requiring limited liability companies to reveal actual ownership and management, she said, their lobbyists say "Nevada won’t be the Delaware of the West anymore. We’re going to lose all that business." The 2007 Legislature did succeed, she noted, in passing bills requiring more disclosure when LLCs deal with certain state agencies, but the private citizens and private businesses, when acting as an LLC’s customers, get no such protection.

Nevada has made some progress in reopening closed government records. Care pointed out that legislators in 2007 closed an important loophole by requiring public agencies to respond to open records requests within five days; some formerly took their time.

Assemblyman Bernie Anderson, D-Reno, who in 2007 chaired the Assembly Judiciary Committee, also noted that Nevada recently limited judges’ discretion to seal civil court cases from public perusal. Following a Review-Journal investigation which showed Clark County District Court judges sealed many cases involving the wealthy and well-connected, legislators proposed laws to restrict the practice, but abandoned its effort when the Nevada Supreme Court offered to handle the problem. The court did pass statewide rules which would limit the extent and circumstances under which cases can be sealed, he noted. "Now we’re going to see whether they follow their rule or whether we’ll have to take it up in the Legislature."

That’s a good idea. Ordinary citizens should watch too, and see whether they have to take it up in the voting booths.

Contact A.D. Hopkins at ahopkins@reviewjournal.com or (702) 383-0270.