EDITOR’S NOTE: This column was written in honor of Sunshine Week (March 14-20, 2021), an annual national initiative to promote a dialogue about the importance of open government and freedom of information. Go to sunshineweek.org to learn more.
Unbeknownst to Nevada officials, the state has been conducting a natural experiment in public policy for many years now: What would happen if one of the state’s two main open-government laws had an enforcement mechanism and criminal penalties for government officials who violate the law, and the other one left malfeasors completely unmolested? You probably wouldn’t be surprised to learn that the law that imposes sanctions and a means to enforce them has been more effective in shaping the behavior of the state’s elected officials and civil servants. Nevada’s Open Meeting Law was approved by the state legislature in 1960. It was intended to ensure that the actions of all public bodies “be taken openly and that their deliberations be conducted openly.” In 1977, the statute was amended to establish criminal penalties for government officials who knowingly participate in a meeting in which members of the public are unlawfully barred from attendance.
It also authorized the Attorney General to investigate and prosecute infractions of the law. In 2011, civil penalties now as high as $2,500 were added. In 2015, a process was established for local residents and open-government organizations to file open-meeting complaints with the Attorney General’s office. By and large, the enforcement mechanisms and penalties have worked. Most public officials in our state are keenly aware of the law’s mandates and generally do their best to comply with them. In the two-plus years I’ve been executive director of the Nevada Press Association, I’ve heard few complaints from journalists about state officials holding unlawful secret meetings. Meanwhile, Nevada’s Public Records Act (NPRA) — the state’s other primary statute compelling government transparency — is chock full of rights but has few practical remedies.
If a government official unlawfully withholds a document or other public record, a requestor’s only option is to file an expensive lawsuit and hope for eventual redress in the court system. It’s a slow, cumbersome and prohibitively expensive process. Only relatively large corporations and the wealthy can afford to pursue it. The Act's toothlessness incentivizes public officials to slow-walk or stonewall records requests they view as problematic or just plain irksome. Civil penalties and fines of up to $10,000 were added to the law in 2019, but they apply only to government entities, not the individuals who violate the law. Those fines may ultimately prove to have some deterrent effect, but the record suggests the effect will be limited. Take a recent case involving the Clark County Coroner’s Office. The Las Vegas Review-Journal sued the coroner’s office in 2017 for access to juvenile autopsies it sought for an investigation into failures by child protection workers to protect children from neglect or abuse.
It took almost four years and two rulings by the Nevada Supreme Court to finally convince Clark County to release the records a day after the deadline set by now-retired District Judge Jim Crockett.
“Everything demonstrates the coroner’s office is bound and determined to circumvent and avoid the Nevada Public Records Act by stonewalling and obfuscating,” said Judge Crockett.
Obstructing the Review-Journal’s records request also cost Clark County at least $80,000 in legal fees, and earlier this month the district court ordered the county to pay the news organization $167,000 to cover some of its legal expenses as well.
Would the government officials who decided to spend so much time and taxpayer money on this obviously losing battle have made different decisions if their own money and criminal records were on the line?
The evidence accumulated over the years of official compliance with Nevada’s Open Meeting Law suggest they would have.
Richard Karpel is the executive director of the Nevada Press Association, which represents newspapers, online news websites and magazines based in the Silver State, including the Northern Nevada Business Weekly.
