MINUTES OF THE ASSEMBLY COMMITTEE ON GOVERNMENT AFFAIRS Sixty-eighth Session April 12, 1995 The Committee on Government Affairs was called to order at 8:00 a.m., on Wednesday, April 12, 1995, Chairman Bache presiding in Room 330 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Mr. Douglas A. Bache, Chairman Mrs. Joan A. Lambert, Chairman Mrs. Deanna Braunlin, Vice Chairman Mr. P.M. Roy Neighbors, Vice Chairman Mr. Max Bennett Mrs. Marcia de Braga Mr. Pete Ernaut Mrs. Vivian L. Freeman Mr. William Z. (Bill) Harrington Ms. Saundra (Sandi) Krenzer Mr. Dennis Nolan Mrs. Gene Wines Segerblom Mrs. Patricia A. Tripple Mr. Wendell P. Williams STAFF MEMBERS PRESENT: Denice Miller, Senior Research Analyst OTHERS PRESENT: Chris Brown, citizen; Donald Klasic, R. Michael Turnipseed, State Engineer; Karen Kavanau, Dept. Of Info. Services; George Cotton, Clark County Manager's Office; Bill Isaeff, City of Sparks; May Shelton, Washoe County; Denell Hahn, Clark County; Melanie Meehan Crossley, Deputy Attorney General; Mary Liveratti, Aging Services; Guy Louis Rocha, State Library and Archives; Larry Struve, Dept. Of Business and Industry; plus all others listed on the attendance Roster, (Exhibit B). ASSEMBLY BILL 401 - Requires charges for public records to be reasonable. (BDR 19-1126) Assemblyman Freeman introduced A.B. 401 as one of the three bills being heard that came out of a study committee last session. A number of recommendations came out of that study committee but two of the bills were not passed at that time. The one that did was not able to address the whole issue. The state currently faces the choice of access to the information highway as opposed to the right to privacy. The state has to decide what is good public policy. Mrs. Freeman had been asked by several members of the study committee to bring these issues back into focus for reconsideration this year. Assemblyman Nolan was not here last session and wondered why the bills failed and what changes now make them better. Mrs. Freeman asked Bill Isaeff to come forward to answer some of the technical questions. It was a political issue, Mrs. Freeman stated, that got caught up in a subcommittee and simply did not make it through the process; it was never voted on. She wanted to move on to the particulars of the bill. William Isaeff, Deputy City Manager for the city of Sparks, spoke on behalf of the city council in support of all three bills. He briefly summarized all three, beginning with A.B. 401. They realize the legislature was being presented the opportunity to clean up a large mess in the Nevada Public Records laws. There is a statute on the books which does not even have the definition of what a public record is. There is also very little case law in the state on that subject. Most of the law that exists now does so because of various attorney general's opinions that have been issued over the years. These opinions are not binding on anyone. There has been constant turmoil over the years as to what truly does constitute a public record. There is no procedural law in this state whatsoever to guide the public to access of public records and documents. There is no uniform consistency at any level of government in a given agency. Charges for copies of public documents vary from department to department and must be made more constant. A.B. 401 provides for a charge for personnel time in the event of extensive records searches, which currently is not the case. Additional charges may also be calculated for reformatting documents for other agencies. ASSEMBLY BILL 402 - Establishes procedure for inspection of public records. (BDR 19-1125) Mr. Isaeff went on to summarize A.B. 402 stating it addressed the critical issue of uniformity and the distinct lack of it in Nevada's state agencies regarding public records. This statute would set forth uniform procedures at all levels of government; city, county and state, indicating people can request records by various means and the officer in custody of that record will ensure the requester has access to the record and capability to reproduce it. He also has to provide a code, if needed, to decipher the record. If requested information is both confidential and non-confidential, the officer having custody will conceal the confidential material and make the non-confidential portion available. Asked by a councilwoman whether or not a charge would be applicable for this service, Mr. Isaeff replied he was not quite sure himself at this point. He suggested the subcommittee take a look at that aspect of the bill. He stated the heart of the bill was in some other sections. Section four indicates inquiry cannot be made as to the reason the requester wants the record. That has been a hot topic over the years. The only exception would be at the DMV, where they are able to ask the requester why the record is needed. This bill also provides for an immediate explanation to the requester for denial or delay of his request for inspection along with information on his rights for an appeal. The officer having custody who receives an appeal within five days must then allow inspection of the record, inform the requester if special circumstances exist, inform the requester you do not have the record and direct them to the person who does, or deny the appeal with a written explanation. Three of the reasons set forth in the law for unusual circumstances that might cause a short delay in the presentation of the document requested: 1. The request involves an unusually large volume of records. 2. The officer must conduct a search for the record. 3. The officer must consult with or obtain the record from another officer. The Sparks City Attorney has suggested a fourth condition which would be the need of the officer to consult with legal counsel for advice. Any of these procedures would have to be concluded within 20 working days. A.B. 402 also, for the first time, would change the term public agency to government entity so it will be able to cover all types of agencies in the state. ASSEMBLY BILL 408 - Makes various changes regarding access to public records. (BDR 19-1127) Mr. Isaeff proceeded with A.B. 408, indicating it was the heart of the entire bill package. He felt this would give the legislature the opportunity to make some drastically needed improvements in the statutes regarding this issue. This bill will contain a definition of what a public record is. It is very broad and inclusive. The intent is to make as much information as possible available to the public, recognizing the need for confidentiality and rights to privacy. There is also a list of what would be considered open to the public types of documents and what would not be considered public records. There are many types of records considered public but are not disclosed for obvious reasons. Section three of the bill recognizes the fact there will probably be some records that have not been thought of that will exist in the future. This codifies a test in statutory form for balancing those records and deciding which unaddressed records would be classified as public or private. He wrote an Attorney General's opinion several years ago which announced this test for the first time and it was considered appropriate to continue to use it. The bill states ..."the public record must be disclosed unless, with respect to the particular record, the general policy in favor of open records is outweighed by a reasonable expectation of privacy or a substantial justification for nondisclosure based on public policy." All together, these bills will once and for all clarify the public records policy in Nevada. Assemblyman Bennett commended the presentation of A.B. 402. He stated he was a classification officer at the Nevada Test Site and terms such as confidential, protected, sensitive were very familiar to him. He saw the incongruity of the term confidential as a flaw in the bill. He felt it was being used too loosely. It must be defined. At a federal government level it means the release of information which can damage national security. Mr. Bennett wanted a state definition brought forward or the term changed to "sensitive". Mr. Isaeff indicated he would give that some consideration, but at this level there is no involvement with national security. Mr. Bennett emphasized Nellis Air Force Base, Fallon, Hawthorne, and the Nevada Test Site and that some of the information flowing in and around these organizations on the federal level could be confidential. Mr. Isaeff indicated he would be happy to address Mr. Bennett's concerns in the subcommittee meeting. Assemblyman de Braga said last session the big stumbling blocks in these bills were personnel records and section three. She wondered if the problems had been corrected sufficiently for the bill to pass this time. Mr. Isaeff thought the language was fair and reasonable. He mentioned A.B. 402 sets forth a procedure to deal with record access denials. Assemblyman Harrington pointed out A.B. 408 section two states that a governmental entity would include any agency that would receive some public money. Would that allow access to private corporations that do business with the state, he queried. Mr. Isaeff said there is a provision in the bill on page two, lines 28-32 that states a public record does not include records in the private sector, even in the case of public/private partnerships. Only the public or government records would be available for examination. Mr. Harrington wanted to know if public utility records would be completely accessible. Public utilities were a special situation, allowing for disclosure of their records under confidential procedures. Chris Brown, legislative intern and concerned citizen, spoke in favor of the bill package. He remarked A.B. 401 provided a consistent fee structure for reproduction of public records which was sorely needed. He handed out two documents, one a copy of a statute (Exhibit C) and one of a privacy book from the Supreme Court Library (Exhibit D). He stated there has never been a court case or requirement that the government or Legislature open their records. The government chooses to open their records and can set any standards they want to with regard to the first amendment. Assemblyman Segerblom asked Mr. Brown if he was suggesting that every county and city have the same fees. Mr. Brown felt that would be determined by the type of record and the time and cost involved in its reproduction. Currently, all counties are charging different prices for the same type of work and some consistency is needed. Mrs. Segerblom mentioned some counties are short handed and need to charge more. Mr. Brown was sure that would be a consideration. Assemblyman Nolan questioned what a reasonable fee would be and did the language still allow too much discrepancy for various agencies to charge exorbitant fees. Mr. Brown indicated they would have to document the actual costs of reproduction. Mr. Nolan said someone could attempt to justify their supply costs without a cap on the cost of photocopies. Mr. Brown stated that was what the reasonable fee portion of the bill was supposed to do but was doubtful if it would succeed. Assemblyman Tripple wanted an explanation why Mr. Brown did not support the inclusion of time spent by personnel for making copies. Mr. Brown thought the problem would entail funding a part-time person's wage in an agency and would become complex and burdensome for the agency. Donald Klasic, General Counsel at the University and Community College System in Nevada, emphasized the Board of Regents had not taken a position on the bill. He was a member of the advisory committee on this bill in 1992. He answered Ms. Tripple's question why personnel costs were not involved. He said it was a compromise reached by the advisory committee. There was a split as to whether these costs should be included or not. The committee or subcommittee would have the final say on the terms and verbiage of the bill. Melanie Crossley, Deputy Attorney General, was also on the advisory committee for these three bills and was in support of all of them. She pointed out in most cases where more money is charged for copies, there is a statutory regulation dictating the cost. It remains a public policy decision as to the cost of reproduction of documents. No one wants the cost to act as a barrier to the access of public records. Guy Rocha, State Archives Administrator, spoke on behalf of all three bills. He introduced Jeff Kintop, State Records Manager. Mr. Rocha had been involved in all the interim studies on this issue since its inception. He felt these studies have indicated what the problems are but have not addressed the solutions. A.B. 401 is an attempt to do that. The State Archives has had statutory authority regulating fee structure for copies for several years. Jeff Kintop explained some of their other fee structures. The State Archives receives requests for information all the time. The requests range from one page to thousands of pages of documents. The staff is very small; currently there are two. The charge has always been .15 per page for individuals to make their own copies. These are copies of publications such as the NRS, which are replaceable. The charge is .30 each if a staff member has to do it. This includes all one-of-a- kind records stored in the Archives. They do not want any of these to be taken or damaged by a photocopy machine. All fees from copy charges are put into a fund in their budget account to help with the research costs, mailing, preparing packages, purchase of microfilm reader-printers and photocopy machines. This was necessary to fill the demand for the records when the money was not in the budget for these items. Some of the money is also used for records preservation, using archival quality, acid free materials for proper storage of documents. A portion of the money is also used to microfilm those records and make them available in libraries throughout the state and nation so people do not have to come here and make copies from the originals. These microfilms can be loaned on the interlibrary loan system. This was instituted in 1983 and it has covered a lot of the costs and/or replacement of photocopy machines and to cover the mailings of the information. Guy Rocha indicated there was a research fee charged at the State Library and Archives. There are walk-in research requests as well as those that come by phone, written correspondence and via INTERNET. There is a procedure followed and fees associated with each type of request. Mr. Rocha asked Mr. Kintop to explain the fees for substantial research requests. Mr. Kintop stated there were two levels of fees charged for requested research information. Anyone that comes into the archives to do research on their own simply pay for the copies they take with them. People who cannot come to the archives for whatever reason, can request archives staff to do research for them. All clients are given an hour of free staff time to look for information. They get three types of requests: 1. Request for a document. 2. Requests for information on individuals, which requires a search through multiple records as people do business with government; those are genealogical requests. 3. Requests for information. This takes staff through all types of records to find the requested data. After an hour search, Nevada residents are charged $15 per hour for research; $20 per hour is the fee for out-of-state requests. That research money goes into a fund in their general fund budget and is used to create indexes, to do copy machine repairs, and to buy new ones. In summation, Mr. Rocha reiterated the research request process and fee structure. The State Library and Archives represents a lot of small entities, both state and local, that have research fee structures because they are just so small and have to take care of over-the-counter business daily as well as manage their records. This is how they survive. It generates a little income, defrays some of their costs, and they do not become paralyzed by research requests. Often, companies or individuals with large requests will fly in themselves and the archives staff will assist them in their search. Assemblyman Ernaut indicated A.B. 401 would preclude State Archives from using the same fee structure they do now. Mr. Rocha read from section one, subsection two to reaffirm it was appropriate to maintain the current fee structure. Mr. Ernaut said sections one and two were incongruent the way they were written, one saying the opposite of the other. No, Mr. Rocha explained. One relates to the actual photocopying process and an additional fee being charged for the person's time. The other requires actual research fees to go into Governor's records, Supreme Court decisions, executive files and Attorney General's records. All that amounts to a lot of physical staff time to find the requested materials in all those various places. Subsection one states an expense may be charged for the copy but not for the person's time. Mr. Ernaut wanted to know if the two charges were differentiated. Mr. Rocha said they did. Mr. Ernaut mentioned the public could go to the Legislative Counsel Bureau (LCB) research library and get publications for free. Many times research for the LCB is done by the State Archives because they do not have the time to do the extensive research involved in some of the requests. Mr. Rocha did agree there were two policies in place and they were incongruent and could be used for someone's advantage. He felt this would need to be examined as these bills were considered. Mr. Kintop pointed out the legislative committee minutes which the LCB provides access to, are microfiched and distributed to libraries throughout the state to create less of a burden on the LCB and the staff of State Archives. Mr. Kintop has been working with staff there to determine where to send these publications to help lawyers in all parts of the state. Mr. Ernaut thanked him and recalled he could get anything he wanted from the research library and never has been charged. The efforts will need to be standardized to avoid putting unnecessary burden on any particular agency. Mr. Rocha supported consistency and encouraged the same in consideration of the public policy for state and local governments. Karen Kavanau, Director of the Department of Information Services, also served as a member of the advisory committee on this issue in 1992. She stated agencies have no guidelines when responding to requests for access to electronic records. The department believes these bills would provide those guidelines and they were in support of all three. Chairman Bache closed the hearing on A.B. 401. Chris Brown briefly covered privacy in Nevada and how it has been treated by the courts and local government. Nevada is only one of four states that does not recognize the right to privacy in either its constitution or statutory law. Nevada has no special laws to regulate electronic information which is often collected by the government. Idaho does have an electronic documents law. Even so, Mr. Brown was able to access information via INTERNET from Idaho that should have been more guarded by their law. The Nevada law regarding public records dates to 1911 and defines a public record as a book or record of the government, which can certainly be broadly interpreted. Electronic data needs special safeguards that are not required for paper data. He referred to (Exhibit D) and pointed out the summary of Utah's electronic documents law. They have a huge high tech industry there and this type of law is definitely needed. Nevada has virtually no laws that regulate school or university electronic records. The only records at schools that are confidential are those kept between counselors and students. Often phone numbers and addresses are given out to inquiring individuals and these should be confidential. As a student aid, he was able to access certain grade records for his teacher's classes. Students are generally the ones who shelve the files and they are not given any type of training in confidentiality. Some states have strong statutes indicating students have the right to privacy in their school records. Nevada has nothing in this regard. Social security numbers are another issue that concerned Mr. Brown. Under the 1975 Privacy Act, social security numbers are not supposed to be used as identification numbers, but they are. With a social security number and an address you can get a TRW report and possibly access confidential information. The social security number is used for school identification numbers, state agency identification numbers and on driver's licenses. This information should be requested and it often is not. Mailing lists were Mr. Brown's final concern regarding privacy. These are lists given or sold to other companies for solicitation purposes. Mr. Brown said the main issues addressed by A.B. 402 were a time frame for the release of public records and the privacy issue, currently handled at the regulatory level, which needs attention. Mr. Bennett returned to the topic of confidentiality and cited the Desert Research Institute, affiliated with the University of Nevada, Reno as having government classified employees and access to government, classified, confidential information. That could be a source of trouble. Mr. Bennett asked Mr. Brown if he would object to amending section seven, page three, defining confidential. Mr. Brown pointed out in terms of federal records, that was covered in A.B. 408. If a record is sealed by federal statute, it cannot be released by the state. Anything done at the federal level would not be superseded by state law. Mr. Nolan commended Mr. Brown on his research efforts. He mentioned section four of the bill which addresses the confidentiality matter and wondered if there were other agencies that could arbitrarily release confidential information to just anyone who walked in with a name and license number. Mr. Brown stated under the current statute that was a risk. The statute simply says all books and records in the state are open to the public except for what is excluded by regulation. Mr. Nolan questioned what agencies were involved. Mr. Brown mentioned some allegations surrounding UNR, but knew of nothing specific. People who are responsible to the public should be the ones who make the decisions concerning access to public records. Ms. Tripple asked Mr. Brown about lines 23-24 on page one and why it should be in the bill. Mr. Brown felt it should read "shall" inquire, not "shall not inquire" . He referred once again to (Exhibit C) and stated that type of protection should be required for all departments, not just the DMV. Mrs. Freeman indicated Mr. Hettrick had a bill addressing the availability of records for the public. Donald Klasic said there were a number of media representatives concerned that a person in a government agency could use the reason a record was needed as an excuse not to release the record. They felt there was no need for the agency to know the reason for the record's request. Sometimes questions do need to be asked in order to locate the record, so that is the reason that language was put in the bill in the first place. Mrs. Freeman asked Mr. Klasic why he was shaking his head when Mr. Bennett said DRI was part of the university system. He said DRI would be mortified to hear him say that. Mr. Bennett said the reference was in their literature. Alan Glover, Carson City Clerk Recorder opposed the bill. He pointed out a peculiar problem on page one, lines 14-19, dealing with confidential and non-confidential information. Their problem is in the court records, there are 130 years of indexes that are both confidential and non-confidential records combined. Normally, a research request comes in and the indexes are researched by court staff, not the public. Confidential indexes are kept separate from non-confidential indexes at the present time, but until the system was automated several years ago, the records were mixed together; thousands of records. He wondered if there was some way to prevent the general public from accessing these confidential indexes. Joseph Guild, State Farm Insurance representative presented some concerns on A.B. 402. In insurance matters, when the insurance commissioner is conducting an investigation a lot of the information is confidential and trade secret type of data. The bill does not have a definition of what confidential information consists of. State Farm would ask that during the subcommittee deliberations, this issue be discussed and a definition be supplied so consistency is assured in settling insurance cases. He made a comment on A.B. 408 and indicated they would provide information for the committee alluding to the exemption of confidential information that is provided to the department of insurance during investigations. He wanted this to be discussed by the subcommittee. They were not opposed to either bill. Mary Liveratti, Deputy Administrator of the Division of Aging Services spoke on behalf of the Chief of Elder Rights, Betsy Kolkoski. She read from prepared testimony on their support for both A.B. 402 and 408 (Exhibit E). She had many concerns for the confidentiality of seniors' records and indicated perhaps the bill would cause more difficulty in obtaining necessary information from their clients. Again, the confidentiality issue came to light in Ms. Liveratti's testimony. There needs to be a definition of exactly what is considered confidential and what is not. She went on to conclude with the Division's support in the effort to define public records and the procedures for pubic inspection but respectfully requests that the Divisions's duty to provide its clients certain privacy be accommodated in the process. Melanie Crossley stated the Attorney General's Office was in support of A.B. 402. She responded to some of the topics already spoken on and said that while it was true that A.B. 402 does not clarify what is confidential and not confidential, that was not the task of this bill. That clarification is in A.B. 408. It is in that bill both specifically and non-specifically. She asked the committee to keep in mind that A.B. 408 does say the record must not be disclosed if it is confidential by state statute or regulation or by federal statute or regulation. Mrs. Crossley pointed out that expression is scattered throughout various chapters in the statutes, particularly in the human services section. She said there was a lot of protection and a definition of what is confidential in the human services area. Many of the statutes mimic federal requirements. She indicated it would be difficult to write a short definition that would cover the array of records that exist. She always directs clients to the specific statute or regulation that addresses their area. If there is no guidance there, the balancing test remains the determining factor on the issue of confidentiality. Her office would not be opposed to finding a way to separate those mixed files to protect the confidential aspects of a file and yet allow the non- confidential portions to be viewed. Mr. Ernaut questioned the problem of co-mingled documents. Mrs. Crossley said part of the problem is that agencies do not maintain their records for the primary purpose of convenience of access. They maintain them for the convenience of carrying out their mission. Mr. Ernaut asked how the Attorney General's Office has handled this situation in the past. Mrs. Crossley said the records of the A.G.'s Office come under the attorney/client privilege. The files that she has contains materials obtained from the client and that is where the problem lies. Mr. Bache closed the hearing on A.B. 402. Denell Hahn, Director of Clark County Social Service, expressed appreciation for the work that has been done on the bill package. The bill would help clarify what records should be released and under what circumstances. She offered an amendment because for the purposes of county social service and public guardian programs, they wanted further clarification on what types of records could be released. Although many times the language in A.B. 408 will solve their problems as far as not releasing those records to the general public, many requests come from the client or from a family member. They would like to secure the right to hold some of those records confidential for very sound reasons. A typical example would be a reported incidence of domestic violence one day and the next day the spouse comes in and wants to review their partner's file. That would be a good reason not to make that record totally public. It would also protect the professional work products of social workers, nurses and other professionals in formulating case plans, in collecting information for other confidential sources such as police agencies, domestic violence counselors, social security and other federal agencies. They also felt it was necessary to ensure the safety and security of county staff when their records include anonymous tips on fraud cases, child abuse and any reports from the public on senior exploitation or abuse. George Cotton, Clark County Manager's Office, expressed the concern of the business license department regarding what constitutes a public record. Certain information is required for the issuance of a business license and the release of some types of information could be detrimental to various kinds of businesses. The Attorney General's Office was concerned with section two, paragraph 1d, where the governor is not granted the right to obtain a patent and where a governmental patent such as the county seal could be used indiscriminately by a public entity. Blueprints, Mr. Cotton said, should be excluded from the public record classification as well. In section four, the exclusion requested would be the record of disciplinary action taken against an employee. In section two, subsection 2b, Mr. Cotton did not see why the reference to gender was required. In section four, 2h, Mr. Cotton felt records should not be disclosed even after an investigation is closed because it can hurt people. Mr. Bache requested any concerns or amendments be submitted in writing as soon as possible for the subcommittee's perusal. Mr. Larry Struve, Chief of Industrial Development and Planning for the Nevada Department of Business and Industry, spoke on behalf of Director of that department, Rose McKinney James, who was unable to attend. Their department was in support of the bill package. Mr. Struve explained the function of his department. They are a very large department that regulates business, issues licenses, provide consumer protection and assist businesses through their industrial development revenue bond program. They maintain a wide variety of records and are always asked for records search assistance by other agencies. Their clients have requested them to maintain legitimate rights of privacy, particularly business clients who have proprietary information that they do not want to be released to competitors. Mr. Struve also served on the advisory committee in 1991-1993 and was very hopeful after much exhaustive effort that this legislature would clarify the public records law along with a working definition and guidelines to determine what is a public record. As a major state agency, the Department of Business and Industry requested three guidelines be kept in mind when determining the final format for these bills: 1. Is the language defining a public record clear? Can any person understand it or can an agency administrator understand it when it becomes an issue as far as access to that information is concerned. 2. Is the language capable of being consistently applied? Is it being made clear enough so that regardless of who is dispensing the law, it will be done consistently and not be up to one individual. 3. Are the rules protecting both the legitimate right to privacy and the public's right to know? Both considerations have to be accommodated. They were concerned about this issue because of a study done by the LCB. It was an interpretation of what is in current law, NRS 239.010. In A.B. 408, page three, emphasis is made on public books and public records of a public agency, not otherwise declared by law to be confidential. Assumptions have been made by many that means all records in a government office are public records. The LCB said in 1965, the law was amended by inserting the term "public" when describing government records. The previous law declared that "all" records of the state were open to the public. In common law, the right of access to government records was restricted to public records. Therefore, the 1911 law was actually an expansion of the right to access because of its failure to qualify the records as public. That right was restricted in 1965 by adding the term public. That was the most significant change to the law since it was enacted. The vast majority of records their department maintains are classified in the gray area and must be classified according to the balancing test which means individuals will be judging what would remain confidential and what would be looked at as a public record. He encouraged consistent language and mutual protection for all concerned. Mr. Ernaut asked if he were to assume from Mr. Struve's testimony that he did not think the bill did that now. Mr. Struve indicated general support for the bills as proposed. He referred to section three and the codification of the balancing test which he felt would be workable in his department. This would be the legal guideline they would follow in determining whether a document was considered public or not. They would weigh the public's right to know against a reasonably expected right to privacy. Mr. Ernaut asked Mr. Struve if he thought the language was clear in A.B. 408. Mr. Struve indicated it was generally all right and their main interest was the necessity of the bill and a clear definition of what is public and what is confidential. They wanted to work with the subcommittee as the bill did appear to need a bit more work. May Shelton, Director of Washoe County Social Services, welcomed the legislature's efforts to enact statutes to define and clarify public records and attempt to protect the citizens' right to privacy. She said they were in support of the amendment presented by Ms. Hahn of Clark County (Exhibit F). Mr. R. Michael Turnipseed, State Engineer, was in agreement with the bill package as a whole but disagreed with two words; electronic data. His main concern was access to computer information via disk or taped information. He has many files on database which changes every day. He has no problem giving people a printout with a stamped notification that the information was subject to change daily. He did not have that opportunity if the information were to be transmitted to a disk or a tape. Any information on a disk or tape would be taken as verbatim and accurate. He would not want to allow access to the public by disk or tape, only by printout. Mrs. Freeman appreciated his concern and asked how then would he prefer data to be transmitted. Mr. Turnipseed said he did not see a need to transmit data by disk or tape, that paper copies were sufficient. Mr. Bennett agreed no one should have access rights to Mr. Turnipseed's database. Even though a floppy disk can be changed in another computer, the database would still be regarded as the final authority. Mr. Turnipseed wished he could be assured those would never be misused. He had experienced some problems with disks in the past. Debbie Cahill, Nevada State Education Association, wanted to go on record in support of A.B. 408. They worked extensively on the bill last session and their main concern was that personnel records should not be included in the definition of public records. Ms. Cahill referred to page two, line 43, number of sick days taken. They did not object to giving information about the provision, but the actual number of sick or annual days taken by an employee should remain confidential. They wanted to work with the subcommittee to amend the language in that section. Chris Brown spoke once again, this time on A.B. 408. He pointed out the specific issues addressed by A.B. 408 were key issues. The definition of what is a public record was primary. The exclusion of personnel records, employee statistics on leave and the balancing test were all key factors needing to be addressed. He was in full support of A.B. 408 but had some concerns. He indicated that the release of personal information such as home address and telephone number was prohibited by regulations but not in the statutes; he felt it should be. Another issue Mr. Brown brought up was in other states, a citizen has the right to appeal the information in their public record. Nevada does not have that provision. These bills do not grant that right, either. He wanted to see an amendment to include that provision for all citizens. He also wanted to see a study of the regulations surrounding the bills that are already on the books. He felt things needed to be cleaned up. Mrs. Freeman commented on some bills being heard this session regarding regulations. She thanked the committee for allowing her intern, Mr. Brown, to testify. Mr. Klasic wanted to fill in a couple of gaps in the testimony. He said it had been brought out that all public records had to be disclosed, but we know there are exceptions. There is a substantial government public policy interest that sometimes requires records to be kept confidential. Hospital medical records are confidential. Prison plans kept by state public works are most certainly kept confidential. These are two obvious examples of types of materials that necessitate confidentiality. The advisory committee has attempted to put together a bill as specific as possible to make these decisions without having to guess at the appropriate course of action. He felt the contents of section four gave a great deal of information on what should and should not be kept confidential. Nevertheless, section three is there to cover anything that is not already covered. He did not believe another definition was needed for the term confidential. Number one, when the Legislature declares a statute confidential, the public policy determination has already been made that the record would be harmful if allowed public access. The balancing test does provide a confidentiality definition that is the law in Nevada and the law throughout the United States. The criteria for confidentiality is will the disclosure affect a reasonable expectation of privacy by substantial justification of non- disclosure. He supported the bills and offered assistance to the subcommittee. Mr. Bennett asked Mr. Klasic where he stood. Mr. Klasic stood on the fact that the definition of confidentiality was already in the bill and a further definition was not needed. Mr. Isaeff remarked on A.B. 408 on some important points raised by those present. He pointed out the term electronic data was included in the definition of public records not so that people would be able to have access to governmental computers, but so the government would not turn around and say their records were not accessible because they were not on paper. The solution the state engineer proposed was a natural one, a printout. He reiterated the necessity to have the bill package examined by the subcommittee and offered his assistance. Mr. Nolan questioned page two, line 16, where proprietary software would create files or work products for individuals which could then become public records. Mr. Nolan pointed out line four indicating personal notes and correspondence were not considered public records although they were not confidential. Mr. Isaeff mentioned this would be the section to address those issues as he did not know exactly what language to suggest at the time. Guy Rocha added the Archives and Records staff would be at the disposal of the committee and indicated ultimately a consensus needed to be reached regarding these bills. He said that technology was outstripping their public policy. He also mentioned critical issues of privacy and public access were not being addressed and Nevada was getting way behind in the national scheme of things. This was something that could no longer be put off. Mr. Stan Warren, representing Sierra Pacific Power Company, offered his assistance on the bills. Jim Richardson, urged support of the bill package. He shared the concern of Ms. Cahill regarding the amount of sick or annual leave taken by employees. He felt that records involving things such as sexual harassment should really be scrutinized and should not be made available to the public. Mr. Neighbors asked why the public should have access to an employee's sick or annual leave records. Mr. Richardson shared his view and felt it was no one else's business. It should be deleted. L. Mark Balen, President of the Clark County Fire Fighters Union, stated they were adamantly opposed to anything in personnel files being considered as public records. They wanted all personnel records kept confidential. Mr. Bache closed the hearing on A.B. 408. He appointed a subcommittee to deal with Assembly Bills 401, 402 and 408. Mrs. Freeman would chair the subcommittee, with Mrs. Krenzer, Mr. Williams, Mr. Ernaut, Mrs. Braunlin and Mr. Bennett comprising the rest of the group. Mr. Bache had some BDR's to introduce. BDR 22-1794 - Revises provisions governing actions against certain planning and zoning agencies. ASSEMBLYMAN NOLAN MOVED TO INTRODUCE BDR 22-1794. ASSEMBLYMAN TRIPPLE SECONDED THE MOTION. THE MOTION PASSED UNANIMOUSLY. BDR R-1783 - Assembly Concurrent Resolution - Provides for recognition of certain associations that represent state employees. ASSEMBLYMAN WILLIAMS MOVED TO INTRODUCE BDR R-1783. ASSEMBLYMAN KRENZER SECONDED THE MOTION. Mrs. Lambert wanted to let the committee know this bill draft came from the committee on government affairs and there were a couple of ways they could be requested; either by a vote of the committee or by one of the other chairmen requesting it. She did not request this and wanted to let everyone know. Mr. Bache indicated he had made the request on behalf of some constituents. THE MOTION PASSED UNANIMOUSLY. Carole Vilardo, Nevada Taxpayers Association and Marvin Leavitt of Clark County had two bill requests. Ms. Vilardo said a general law was needed to help White Pine County that would allow for a legislative finding of financial hardship because they may have to exceed the property tax cap of $3.64, isolate that from the rest of the property tax and pay bills with it. Because it deals with article 10 of the constitution, they cannot do it especially for White Pine County. Something has to be put into law that would apply to any local government. On the advice of the LCB legal division, something like a legislative finding would work. They will probably need that mechanism and now is the time to act. ASSEMBLYMAN WILLIAMS MOVED TO REQUEST A BDR ON THE WHITE PINE COUNTY ISSUE. ASSEMBLYMAN BENNETT SECONDED THE MOTION. THE MOTION PASSED UNANIMOUSLY. Marvin Leavitt said the second request related to the condition of financial difficulty in White Pine County. Several years ago, he related, in most of the local government statutes, there was involvement by the state board of finance. Almost everything since then has been changed to the Nevada Tax Commission because they are the ones who work with the department of taxation, not the state board of finance. For some reason, the financial difficulty statute still has references to the State Board of Finance and if work is going to be done with White Pine County school district and the Department of Taxation over the next four or five years, the Nevada Tax Commission needs to be the entity involved and this bill would simply substitute the Nevada Tax Commission for the State Board of Finance. ASSEMBLYMAN NEIGHBORS MOVED TO REQUEST A BDR ON THIS ISSUE. ASSEMBLYMAN LAMBERT SECONDED THE MOTION. THE MOTION PASSED UNANIMOUSLY. Mr. Neighbors wondered if these two BDR's could be moved through as emergency measures. Mr. Bache indicated that would be discussed with the bill drafting staff. Mr. Leavitt stated there was a problem putting together a budget for White Pine County and no one in the district was competent enough to do the job. Some individuals have been approached for providing assistance in that area and they were concerned that since they are not officially employees of the district, they might incur some liability requiring some kind of declaration by the legislature that they do not incur any personal liabilities through providing assistance in that area. ASSEMBLYMAN ERNAUT MOVED TO REQUEST A BDR FOR PROTECTION FROM LIABILITY FOR THE LOCAL GOVERNMENT ADVISORY COMMITTEE. ASSEMBLYMAN KRENZER SECONDED THE MOTION. THE MOTION PASSED UNANIMOUSLY. With no further business to come before the committee, the meeting was adjourned at 11:00 a.m. RESPECTFULLY SUBMITTED: Denise Sins, Committee Secretary APPROVED BY: Assemblyman Douglas A. Bache, Chairman Assemblyman Joan A. Lambert, Chairman Assembly Committee on Government Affairs April 12, 1995 Page