Assembly Bill No. 289-Committee on Government Affairs
(On Behalf of the Office of the Secretary of State)
March 19, 1997
____________
Referred to Committee on Government Affairs
SUMMARY--Revises provisions governing access to public records of governmental entities. (BDR 19-508)
FISCAL NOTE: Effect on Local Government: Yes.
Effect on the State or on Industrial Insurance: Yes.
EXPLANATION - Matter in italics is new; matter in brackets [ ] is material to be omitted.
AN ACT relating to public records; requiring a governmental entity to make certain public records in its custody available to a person to inspect, copy or prepare an abstract therefrom in certain circumstances; requiring a governmental entity to make available certain information pertaining to its employees; requiring a governmental entity to ensure that the purchase of certain equipment will not impair or impede the ability of the entity to make public records available; and providing other matters properly relating thereto.
Whereas, As the state and federal constitutions recognize and guarantee, all political power is inherent in the people; and
Whereas, The authority of public officers, employees and agents to receive or record information in the course of their duties or to delegate to others the receipt or recordation of information arises exclusively from the authority of the people, and the right to be informed regarding the receipt, recordation, management and use of all such information belongs to the people; and
Whereas, It is the public policy of this state that the people are entitled to know and be informed fully about the conduct and activities of their government, although that entitlement does not authorize every person to have access to every record that the government may obtain or to which the government has access; and
Whereas, The purpose of this act is to ensure and facilitate the right of the people to have access to information concerning the conduct and activities of their government, while simultaneously protecting other interests of the general public, including, without limitation, the protection of personal and other private interests; and
Whereas, Such access is necessary to enable the people to understand their government, monitor their government to ensure that it is being conducted in the public interest and make informed judgments about the manner in which to exercise their political power; now, therefore,
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN
SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1 The legislature hereby finds and declares:
1. Ensuring access to information regarding the government is a matter of statewide concern and significantly affects the health, safety and welfare of the people. Accordingly, this act must be construed liberally to require public access to information concerning the conduct and activities of the government of this state.
2. The provisions of this act must not be construed to:
(a) Repeal an exemption from public disclosure currently granted by a state statute or regulation.
(b) Prohibit a law enforcement agency or an auditor employed by a governmental entity from inspecting records during the course of an authorized investigation or audit.
(c) Interfere with the normal course of discovery in a legal action or to designate as confidential any record before a court of this state that is not otherwise designated as confidential.
Sec. 2. Chapter 239 of NRS is hereby amended by adding thereto the provisions set forth as sections 3 to 13, inclusive, of this act.
Sec. 3. "Committee" means the committee to approve schedules for the retention and disposition of official state records created pursuant to NRS 239.073.
Sec. 4. "Division" means the division of state library and archives of the department of museums, library and arts.
Sec. 5. "Governmental entity" means:
1. An elected or appointed officer of this state or of a political subdivision of this state;
2. An institution, board, commission, bureau, council, department, division, authority or other unit of government of this state or of a political subdivision of this state;
3. A university foundation, as defined in NRS 396.405; or
4. An educational foundation, as defined in NRS 388.750, to the extent that the foundation is dedicated to the assistance of public schools.
Sec. 6. "Information system" means any communication network or computer hardware, computer software, procedures, personnel or data used to collect, process, distribute or store the information of a governmental entity.
Sec. 7. (Deleted by amendment.)
Sec. 8. "Peace officer" has the meaning ascribed to it in NRS 289.010.
Sec. 9. 1. "Public record" means a record that is prepared, used, received, retained or maintained by a governmental entity in connection with:
(a) The transaction of public business;
(b) The expenditure of public money; or
(c) The administration of public property, as that term is defined in NRS 528.096,
regardless of its physical form or characteristics, including, but not limited to, a book, letter, document, paper, final budget, proposed budget and supporting information as submitted by the originating governmental entity for approval or adoption, roster, map, plan, photograph, film, card, tape, recording, electronic data or electronic communications.
2. Except as otherwise provided by specific statute or regulation, "public record" includes:
(a) A report of arrest prepared by a peace officer.
(b) The contents of an initial crime report prepared by a peace officer, including, but not limited to:
(1) The date, time, location and nature of the complaint, incident or offense;
(2) The name of the victim, unless a specific statute requires that the name of the victim be kept confidential;
(3) The general nature or scope of the initial actions taken in response to the complaint, incident or offense by the peace officer or the law enforcement agency that employs him;
(4) A description of the general nature of injuries or an assessment of damages sustained in the incident or as a result of the offense;
(5) The name, address and other information that identifies a person arrested or charged in connection with the complaint, incident or offense; and
(6) The identity of the peace officer who initially responded to the complaint, incident or offense, unless the peace officer is working as an undercover officer or agent.
(c) The contents of a "911" or other emergency telephone call received by or on behalf of a law enforcement agency.
(d) A report pertaining to an accident involving a motor vehicle.
(e) As used in this subsection:
(1) "Initial crime report" means a written or recorded report prepared by a peace officer that describes the elements of the crime as the elements occurred and which is prepared in response to:
(I) A complaint that alleges a violation of law; or
(II) The discovery of an incident or offense which constitutes an apparent violation of law.
(2) "Initial crime report" does not include a follow-up or investigative report that is prepared after the initial crime report.
3. "Public record" does not include:
(a) A temporary or preliminary draft, note or memorandum that is not retained by a governmental entity in the ordinary course of business, unless the governmental entity uses the draft, note or memorandum as the basis of a final decision.
(b) A record that is legally owned by an officer, employee or agent of a governmental entity in his private capacity.
(c) A record relating to an audit conducted by a governmental entity, except a final audit report.
(d) Proprietary computer software, including, without limitation, programs and systems that are developed by or for the use of a governmental entity.
(e) Mail or publications received by a governmental entity that consist solely of advertisements.
(f) A record that contains employment information regarding a peace officer, to the extent that disclosure would impair the effectiveness of an investigation or endanger a person.
(g) Books, publications and other records that are:
(1) Cataloged, indexed or inventoried; and
(2) Included in the collection of a public library or museum.
(h) Records of a public library or other library that contain the identity of a user and the books, documents, films, recordings or other property of the library which he used.
(i) Property acquired by a library or museum for exhibition.
(j) Artifacts and nondocumentary tangible property.
(k) Except as otherwise provided in section 10 of this act, a record retained in the personnel file of an employee of a governmental entity.
Sec. 10. 1. Except as otherwise provided in paragraph (f) of subsection 3 of section 9 of this act, the following information regarding each employee of a governmental entity must be made available for public inspection:
(a) The name of the employee;
(b) The gross compensation and perquisites paid by the governmental entity to the employee, except any compensation that has been reimbursed by a private person or entity;
(c) The title of the position held by the employee;
(d) A description of the position held by the employee;
(e) The qualifications established by the governmental entity for the position held by the employee;
(f) The address and telephone number of the employee's place of employment, unless the place of employment is a fire station;
(g) The number of hours the employee is scheduled to work in each pay period or, if this information is not readily available, an indication of whether the employee works full time or part time;
(h) The date on which the employee began his employment with the governmental entity, unless that date is used as a security code for access to computerized records; and
(i) The date, if applicable, on which the employment of the employee was terminated.
2. A governmental entity may comply with the provisions of this section by providing the information set forth in subsection 1 upon request or by establishing and maintaining a roster that contains the information.
Sec. 11. 1. A governmental entity shall not contract for or take delivery of an information system or information technology that is designed for the storage, manipulation or retrieval of public records, unless the governmental entity determines that the information system or information technology will not impair or impede its duty pursuant to subsection 1 of NRS 239.010 to make a public record available to a person to inspect, copy or prepare an abstract therefrom. This subsection must not be construed to require a governmental entity to retain obsolete hardware or software.
2. Each governmental entity shall create an index listing all electronic data bases that it compiles or creates. The governmental entity shall, upon request, make the index available to a person to inspect.
Sec. 12. 1. Except as otherwise provided in NRS 440.650 and 481.063, an officer, employee or agent of a governmental entity who has custody of a public record may question a person who requests to inspect, copy or prepare an abstract from the public record only to the extent necessary to clarify the request or determine the appropriate fees.
2. A person may request a copy of a public record in any medium in which the public record is readily available. An officer, employee or agent of a governmental entity who has custody of a public record shall not refuse to provide a copy of that public record in a readily available medium because he has already prepared or would prefer to provide the copy in a different medium.
Sec. 13. 1. An officer, employee or agent of a governmental entity shall not:
(a) Deny a person the right to inspect, copy or prepare an abstract from a public record; or
(b) Deny a request for copies of a public record,
because the public record contains information that must not be made available pursuant to subsection 2 of NRS 239.010.
2. If a person requests to inspect, copy or prepare an abstract from a public record that contains information which must not be made available pursuant to subsection 2 of NRS 239.010, an officer, employee or agent of the governmental entity shall delete, redact or separate the information that must not be made available and shall allow the person who requested the public record to inspect, copy or prepare an abstract of the information that must be made available. An officer, employee or agent of a governmental entity shall not deliberately include in a public record information that must not be made available pursuant to subsection 2 of NRS 239.010 to make inspection of, copying or preparation of an abstract from a public record or information contained in a public record more difficult.
3. If a request to inspect, copy or prepare an abstract from a public record that contains information which must not be made available pursuant to subsection 2 of NRS 239.010 requires an officer, employee or agent of a governmental entity to make extraordinary use of the entity's technological resources or personnel to delete, redact or separate the information that must not be made available, the governmental entity may, in addition to any other charge or fee authorized pursuant to this chapter, charge a fee for such extraordinary use. Such a fee must be reasonable and must be based on the cost that the governmental entity actually incurs for the extraordinary use of its technological resources or personnel. The governmental entity shall not charge such a fee if the governmental entity is not required to make extraordinary use of its personnel or technological resources to fulfill additional requests for the same information.
Sec. 14. NRS 239.005 is hereby amended to read as follows:
239.005 As used in this chapter [:
1. "Committee" means the committee to approve schedules for the retention and disposition of official state records; and
2. "Division" means the division of state library and archives of the department of museums, library and arts.] , unless the context otherwise requires, the words and terms defined in sections 3 to 9, inclusive, of this act have the meanings ascribed to them in those sections.
Sec. 15. NRS 239.010 is hereby amended to read as follows:
239.010 1. [All public books and] Except as otherwise provided in subsection 2 and section 13 of this act, public records of a [public agency, a university foundation or an educational foundation, the contents of which are not otherwise declared by law to be confidential,] governmental entity 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. Any such copies [, abstracts or memoranda] or abstracts may be used to supply the general public with copies [, abstracts or memoranda] or abstracts of the records or may be used in any other way to the advantage of the [public agency, university foundation or educational foundation or of] governmental entity or the general public. This section does not supersede or in any manner affect the federal laws governing copyrights or enlarge, diminish or affect in any other manner the rights of a person in any written book or record which is copyrighted pursuant to federal law.
2. [A public agency may not reject a book or record which is copyrighted solely because it is copyrighted.] Except as otherwise provided in section 13 of this act, a public record must not be made available for a person to inspect, copy or prepare an abstract therefrom if:
(a) Access to the record is restricted or the record is declared to be confidential:
(1) By a specific federal statute or regulation;
(2) By a specific statute of this state or a regulation authorized specifically by a statute of this state to declare such a restriction;
(3) As a condition of participation in a state or federal program;
(4) As a condition of receiving state or federal money; or
(5) Pursuant to the provisions of a contract.
(b) It contains information regarding a person's medical, psychiatric or psychological history, diagnosis, condition, treatment, evaluation or similar data, unless the disclosure is in a form which does not associate the information with a particular person.
(c) Disclosure would jeopardize:
(1) The physical security of a correctional facility, detention facility, juvenile facility or other governmental facility or property;
(2) The safety of employees of the governmental entity; or
(3) A current or future plan or tactical operation of a law enforcement agency.
(d) It would reveal information compiled by a governmental entity to prevent or prosecute violations of the law, including, without limitation, information derived from witnesses, laboratory tests, surveillance, investigators, confidential informants, photographs and measurements. This paragraph prohibits the disclosure of that information only if:
(1) The release of the information would:
(I) Interfere with the ability to prosecute a defendant or the right of a defendant to receive a fair trial;
(II) Jeopardize an investigation that has not been closed; or
(III) Discourage the reporting of illegal governmental action or discourage cooperation in a related investigation regarding the action of a governmental entity or an employee of the governmental entity.
(2) The information concerns an investigation of an employee of the governmental entity.
(e) Except as otherwise provided in this paragraph, it contains information concerning the appraisal of real property that a governmental entity may acquire, unless the property has already been acquired. An administrator or negotiator of a governmental entity may disclose information relating to a current appraisal of real property only to another party with whom the administrator or negotiator is negotiating.
(f) It is a record:
(1) Prepared by or on behalf of a governmental entity in connection with existing or anticipated litigation that is not available under the rules of discovery;
(2) Disclosing an attorney's work product, including, without limitation, mental impressions or legal theories of an attorney or other representatives of a governmental entity concerning litigation;
(3) Concerning the strategy of a governmental entity relating to collective bargaining or pending litigation;
(4) Revealing the contents of settlement negotiations before the settlement is final;
(5) Revealing communication between a governmental entity and an attorney representing, retained or employed by the governmental entity, if the communication is privileged; or
(6) Revealing communication between or among attorneys or their support staff regarding their representation of a governmental entity, if the communication is privileged.
(g) It is material that a natural person donated to a library, archive or museum and, as a condition of the donation, the donor requested that his name or the material remain confidential for a specified period which has not expired. If the donor and the custodian of the material did not agree upon a period of nondisclosure, the material must not be made available pursuant to subsection 1 until after the death of the donor or until 30 years have expired since the library, archive or museum received the material, whichever is later.
(h) It would reveal the identity of a person who donated a gift to a governmental entity, if the person has declared an intent to remain anonymous.
(i) It contains questions or answers used in, or preparatory information relating to, an academic examination or an examination to determine fitness for licensure, certification or employment, but only to the extent that:
(1) Disclosure would compromise the security, fairness or objectivity of the examination; or
(2) A contract governing the use of the examination requires that the questions or answers remain confidential.
(j) It contains administrative or technical information, including that contained in computer systems or programs and operating procedures or manuals, the disclosure of which would jeopardize the security of a recordkeeping system.
(k) It is information which:
(1) Is in the custody of a governmental entity that performs an information service, microfilming or similar services; and
(2) Is the property of another governmental entity that is using those services.
(l) It concerns:
(1) The eligibility of a person to receive benefits; or
(2) The level of benefits that a person is eligible to receive,
from a governmental entity, including, but not limited to, unemployment insurance, welfare assistance or other social services.
(m) It contains information related to the identity of a confidential informant or a person participating in a program for the protection of witnesses.
(n) It contains information related to an investigation of alleged sexual harassment, regardless of whether the investigation is pending or has been closed.
(o) It contains trade secrets or other confidential or proprietary information of a governmental entity, the disclosure of which would cause commercial or financial injury to the governmental entity or would interfere with a commercial or financial transaction planned by the governmental entity.
(p) Except as otherwise provided in NRS 378.290, it is correspondence sent or received by the governor or employees of his office in the performance of governmental duties.
3. As used in this section [:
(a) "Educational foundation" has the meaning ascribed to it in subsection 3 of NRS 388.750.
(b) "Public agency" means any officer of the state or a county, city, district, governmental subdivision or quasi-municipal corporation and any office of this state.
(c) "University foundation" has the meaning ascribed to it in subsection 3 of NRS 396.405.] , "information service" has the meaning ascribed to it in NRS 242.055.
Sec. 16. NRS 239.011 is hereby amended to read as follows:
239.011 If a request [for inspection or copying of a public book or record open to inspection and copying] to inspect, copy or prepare an abstract from a public record is denied, the requester may apply to the district court in the county in which the [book or] public record is located for an order permitting him to inspect , [or] copy or prepare an abstract from it. The court shall give this matter priority over other civil matters to which priority is not given by other statutes. If the requester prevails, he is entitled to recover his costs and reasonable attorney's fees in the proceeding from the agency whose officer , employee or agent has custody of the [book or] public record.
Sec. 17. NRS 239.012 is hereby amended to read as follows:
239.012 A public officer , [or] employee or agent who acts in good faith in disclosing or refusing to disclose information and [his employer] the governmental entity which employs him are immune from liability for damages, either to the requester or to the person whom the information concerns.
Sec. 18. NRS 239.013 is hereby amended to read as follows:
239.013 [Any records] 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 he used [are confidential and not public books or records within the meaning of NRS 239.010. Such records] may be disclosed only in response to an order issued by a court upon a finding that the disclosure of such records is necessary to protect the public safety or to prosecute a crime.
Sec. 19. NRS 239.030 is hereby amended to read as follows:
239.030 [Every officer having] Except as otherwise provided in subsection 2 of NRS 239.010 and section 13 of this act, an officer, employee or agent of a governmental entity who has custody of public records [, the contents of which are not declared by law to be confidential,] shall furnish copies [certified to be correct to any] to a person who requests them and pays or tenders such fees as may be prescribed for the service of copying and [certifying.] , if requested, shall certify the authenticity of the public records.
Sec. 20. NRS 378.290 is hereby amended to read as follows:
378.290 1. The records of the governor's office, which include correspondence sent or received by the governor or employees of his office in the performance of governmental duties, are the property of the State of Nevada and must be transferred to the division before the governor leaves office.
2. [The] Except as otherwise provided in subsection 3, the division shall make the records of a former governor available for inspection, except:
(a) If that correspondence identifies or can be readily associated with the identity of any person other than a public officer or employee acting in his official capacity and has been in the possession of the division for less than 10 years, the name and facts which identify that person must be deleted before the correspondence is disclosed, unless the person so named or identified is deceased or gives his prior written permission for the disclosure.
(b) Any records that have been declared by law to be confidential are not subject to the provisions of this subsection during the period of confidentiality specified in NRS 378.300.
(c) Any agreement between a former governor and the division made before the passage of this act which provides for a period of confidentiality is unaffected by the provisions of this section.
(d) Records of the governor's office which are transferred to the division during the governor's term of office remain in the custody of the governor and are not subject to the provisions of this subsection until after he leaves office.
3. The division shall not make available correspondence sent or received by the governor or employees of his office in the performance of governmental duties until 2 years after the date on which the governor has left office.
Sec. 21. The provisions of subsection 1 of section 11 of this act do not apply to any contracts for an information system or information technology that a governmental entity has entered into before the effective date of this act.
Sec. 22. 1. This section, sections 1 to 10, inclusive, subsection 1 of section 11 and sections 12 to 21, inclusive, of this act become effective on October 1, 1997.
2. Subsection 2 of section 11 of this act becomes effective on July 1, 1998.