NV Legislators Looking To ‘Clarify’ Open Records Laws By Making Responses More Expensive, Easier To Deny

Open records laws are in place to force governments into public accountability. The word “force” isn’t hyperbolic. There’s plenty of evidence strongly suggesting most government entities are still very resistant to the idea. Lawsuits, public figures using personal email addresses, excessive fees, abuse of FOIA exemptions… all of these run contrary to the spirit of open records laws. Some run contrary to the letter.

Out in Nevada, legislators are crafting the “worst bill of the 2015 legislature” — one that targets the state’s open records laws specifically in hopes of further separating public officials from accountability.

Meet Senate Bill 28, which has its first hearing this afternoon before the Senate Government Affairs Committee. Brought on behalf of the Nevada League of Cities and Municipalities, SB28 attempts to make the release of public records so expensive that no one bothers asking for them.

Enter the Nevada League of Cities and Municipalities, which has been working for many months on a plan to spare its members from all those annoying records requests. Under Nevada’s public records law, governments can charge a fee if a request requires an “extraordinary use” of personnel or resources. So SB28 defines “extraordinary use” as a threshold that’s absurdly common…

Under the bill, “extraordinary use” of a government’s personnel or technological resources totals more than 30 minutes of work or “requires the governmental entity to produce or copy more than 25 pages of records or, for a request for a record to be delivered electronically, the equivalent amount of electronic data that, if printed using a type size not greater than 12 characters per inch, would produce more than 25 pages of records, to comply with the request.”

The world has shifted to digital, but governments cling to paper — or “equivalents.” This isn’t some endearingly old-school trait, handed down by aged reps who have waged legislative wars for decades using nothing more than typewriters, fountain pens and dead trees. There’s nothing quaint about it. It’s simply a way to escalate fees while pretending to be “burdened” by the public’s desire for transparency and accountability.

Agencies could charge 50 cents per page for documents as well as the cost for employees’ time to fill the request. An amendment offered by the Nevada League of Cities and Municipalities (NLCM) would reduce the cost per page to 25 cents for physical documents and charge the cost for any storage media used to fill requests electronically.

Either amount is ridiculous, considering most open records requests will be responded to digitally. (Even PACER’s more “reasonable” $0.10/”page” charge for electronically-accessed documents… or search results… or search results that return nothing… is ridiculous. But it’s still cheaper than many municipalities’ per-page charges.)

Equally ridiculous is the proposal that any request taking “longer than 30 minutes” to fulfill be designated “extraordinary.” This would push nearly every request into this category, making them subject to excessive fees or outright refusal. The same goes for the 25-page limit. Government employees are paid to fulfill these requests. It’s part of their job, and they have no business claiming that fulfilling open records requests is an imposition and a hardship.

Very occasionally, outside help (usually of the legal counsel variety) will be needed, and government entities have every right to recoup fees paid. But they should err on the side of under-reimbursement, considering taxpayers have already paid for:

a) the generation of the records being sought

b) the wages of the person(s) fulfilling the request, and

c) the fees paid to outside consultants

Only the offset of direct costs can be justified (so as to keep agencies from carving holes in their own budgets). Everything else is prepaid. Per-page fees are nothing more than agencies skimming a bit more cash from the public’s collective income.

In defense of this terrible bill, supporters cited “abusive” records requests, including a former government employee’s “weekly records request,” which is apparently being deployed as some sort of blackmail.

Brian MacAnallen, representing the City of Las Vegas, discussed two extraordinary requests. One required the city to review more than 2,500 emails. It took more than 250 hours to meet and resulted in 14,352 pages of documents being released. The city and the reporter who made the request scheduled a time to review the documents, but the reporter did not show up.

The other required the review of 7,434 emails of which 204 were determined to meet the request requirements. The review required 160 hours of employees’ time. Senior-level employees, including the city attorney, were required to review the documents before release.

A representative of the City of Henderson mentioned that his city was forced to complete weekly requests made by a disgruntled former employee. The former employee told city officials these requests would continue unless the city paid the former employee a sum of money.

In every case but the last, there are existing legal remedies in place. Excessively large requests can be handled either by charging the requester for reasonable expenses or by asking him or her to narrow the scope. This is common practice everywhere, and Nevada is no exception. The only change this bill would make is that it would allow normal requests for small amounts of documents to be refused for passing the 30-minute time limit and make larger requests (for a few hundred pages) prohibitively expensive.

As for the latter — while tricky to navigate without further damaging open records laws — the city could certainly gather documentation concerning the employee’s stated motive and run it by the judicial branch for possible remedies. The danger, of course, is that any remedies may allow government entities to deny requests based solely on perceived motive. (This, too, has been part of the government’s FOIA abuse. The FBI and other agencies have denied documents to certain prolific FOIA requesters solely on the theory that the requesters are seeking to trick agencies into releasing exempt information by sending multiple, overlapping requests for the same subject matter.)

Government agencies — funded and sustained by tax dollars — shouldn’t be a worse deal for citizens than a trip to the local copy shop. And these agencies certainly shouldn’t aspire to Domino’s Pizza levels of bureaucratic opacity. “Thirty minutes or it’s DENIED!” isn’t exactly a slogan that inspires confidence in these agencies’ trustworthiness.

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