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On October 18, 2018, the Nevada Supreme Court published Public Employees’ Retirement System of Nevada v. Nevada Policy Research Institute, Inc., which will mean big changes for those who are part of the Nevada Public Employees’ Retirement System (“PERS”).
The Nevada Policy Research Institute, Inc. (“NPRI”) made a public records request to PERS to obtain payment records for retired government employees for the year 2014. NPRI planned to post this information, including the names of the retirees, on their website for public viewing.
PERS had given NPRI the same information in 2013 but refused to disclose it for 2014. PERS claimed it had no duty to create a new document for NPRI, as PERS’ own data did not contain retiree names, which had forced them to create a new list with names for NPRI.
In response, NPRI revised their records request to only retiree names, years of service, the gross pension benefit amount, their year of retirement, and their last employer. PERS, however, still refused to release that information, so NPRI filed a petition in the district court for the information.
In the district court case, NPRI argued that the information they sought was not confidential because it was a public record. There was an evidentiary hearing (essentially, a bench trial) in the district court, and the district court found that the information was not confidential, and that any risks associated with its disclosure did not overcome the public’s interest in access to the records. The district court also found that PERS had a duty to create the document with the requested information and ordered PERS to release the requested information to NPRI. PERS then appealed the decision to the Nevada Supreme Court.
PERS argued that the information sought was confidential, and that the risks in making this information public outweighed the public interest in the record. PERS also argued that it was improper to force it to create a new document to respond to NPRI’s request per the Nevada Supreme Court’s previous decisions on the matter.
In response, NPRI argued that the information requested was, in fact, a public record because the information is stored on a governmental computer. NPRI cited a previous decision, Las Vegas Metropolitan Police Department v. Blackjack Bonding, Inc., which involved NRS 239.010 – the statute that dictations that governmental agencies must make nonconfidential public records within their legal custody available to the public.
In Blackack Bonding, a bonding company made a public records request to the Las Vegas Metropolitan Police Department (“LVMPD”), for call records from the Clark County Detention Center (“CCDC”), specifically seeking call records for calls between bail bond agents and CCDC inmates. LVMPD denied the request, claiming it did not have the records because a private telecommunications provider provided the telephone services for CCDC.
The Nevada Supreme Court stated that the records did fall under the Nevada Public Records Act (NRS 239.010) which states:
[A]ll public books and public records of a governmental entity, the contents of which are not otherwise declared by law to be confidential, must be open at all times during office hours to inspection by any person, and may be fully copied or an abstract or memorandum may be prepared from those public books and public records.
The Nevada Supreme Court concluded in Blackjack Bonding that the records were public and had to be disclosed (as long as the inmates’ names and numbers were redacted).
In PERS v. NPRI, the Court noted that the Nevada Public Records Act was originally put into place to “foster democratic principles” and “promote government transparency and accountability by facilitating public access to information regarding government activities.” Due to the importance of this goal, the Act’s provisions are to be “liberally construed to maximize the public’s right of access” to information.
There is a presumption in favor of the disclosure of information in such circumstances. The governmental entity seeking to withhold the records is the one with the burden of overcoming the presumption by showing, by a preponderance of the evidence, that the information requested in confidential. In order to be confidential, a statute must state the information is confidential or that the interest in nondisclosure clearly outweighs the public’s interest in access to the information.
The Court concluded that the information requested by NPRI was limited in scope and “helps promote government transparency and accountability by allowing the public access to information that could reveal, for example, if an individual is abusing retirement benefits,” and, thus, was not confidential pursuant to statute.
The Court then addressed whether the request improperly required that PERS create a new record. It stated that PERS was correct in its assertion that a public agency does not have a duty to create a new record in response to a public records request but disagreed that NPRI’s request required that.
The Court cited to decisions from other states that distinguished between requests that simply required an agency to search its electronic database and requests that required an agency to compile a document or report about the information contained in the database. The Court held that the Act does not require an agency to compile a document or report about the information, but that it does require an agency to “search its database to identify, retrieve, and produce responsive records for inspection[.]”
Finally, PERS argued that satisfying the request would cost staff time and money. This argument was also negated because the statute allows for PERS to charge NPRI for the cost of providing copies of the records.
The Court concluded that PERS would need to produce the requested records. The case was remanded to the district court, however, to determine whether PERS could fulfill the document request, as the record indicated that the PERS database is “not static” and that PERS “may not be able to obtain the information as it existed when NPRI requested it in 2014.”
Four Nevada Supreme Court Justices signed off on the majority opinion for PERS v. NPRI. Three other Justices, however, issued a dissenting opinion. The dissenting Justices argued that the decision would force PERS to create records “so long as a court determines that the agency has the technology to readily compile the requested information” against the Court’s previous decision. They argued that the information requested by NPRI “goes far beyond” simply requiring PERS to search its electronic database, and also that the database itself is confidential (though not all of the information contained in it is necessarily confidential).
This decision has major ramifications for PERS employees and retirees. The public will now, presumably, be able to locate a retiree by name and obtain information about how long they held their PERS-qualified position, how much they get each month for their pension, when they retired, and the name of their last employer.