Bill aims to increase government transparency, but experts wary

Nevada agencies often reject the public’s requests for government records, leaving a lengthy and costly litigation process as the only recourse to obtain the information.

A bill on the table this legislative session aims to fix that problem by allowing public records requesters to seek help from a mediator, though experts are wary it may not be the best system to improve government transparency.

Assembly Bill 128, sponsored by the Assembly Committee of Government Affairs, would create a public records ombudsman, appointed by the governor, to investigate disputes and provide a decision, such as requiring the agency to provide the records or upholding the denial.

Access to public records difficult

Research shows the practical benefits of open records, said David Cuillier, director of the Freedom of Information Project at the University of Florida’s Brechner Center for the Advancement of the First Amendment. It leads to cleaner drinking water, safer restaurants, more efficient governments and better services, he said.

“It’s so important that we the people have access to our government information, because if we don’t know what the government’s doing, how in the world are we going to be in charge?” Cuillier said.

Governments across the country have become more secretive, he said. Ten years ago, governments would provide records about 50 percent of the time; today it is about 13 percent, Cuillier said.

In Nevada, attempting to get public records in accordance with the Nevada Public Records Act is extremely difficult, said Bob Conrad, the publisher, editor and co-founder of This Is Reno. Conrad has a lot of experience fighting for access to public records.

If an agency rejects the request for any reason, requesters are out of luck unless they can afford to enter a lengthy legal battle, he said.

Nevada’s bill was recommended by the Joint Interim Standing Committee on Government Affairs after a hearing last February about other states’ public records laws and concerns about the public’s ability to access records.

About a quarter to a fifth of all states have an ombudsman of some kind, according to William Clark, program principal of National Conference of State Legislatures, who spoke during a Feb. 22, 2024, session of the Joint Interim Standing Committee on Government Affairs.

Stephen Bates, a journalism and media studies professor at UNLV, said the bill has a lot of potential, from allowing an independent review and avoiding a costly court process to giving the ombudsman the power to subpoena the government agency involved.

“If nothing else, it’s a statement of seriousness on the part of the state government, where they’re saying that transparency isn’t just a sort of vague buzzword. It’s an actual obligation,” he said.

Changes need to be made

The Nevada Open Government Coalition, a nonprofit organization promoting government accountability through transparency, supports the concept of an ombudsman, though it believes changes need to be made to the bill as proposed, said Maggie McLetchie, vice president of the coalition and an attorney who represents requesters of public records, including the Las Vegas Review-Journal.

As written, the bill would allow either party to seek judicial relief if they oppose the ombudsman’s determination. Requesters should not be dragged into court by the government agency if the agency doesn’t like the ombudsman’s ruling, McLetchie said.

“I think what’s most important is retaining the right for a requester to go to court and quickly get relief,” McLetchie said. “I think this recognizes not everybody can necessarily represent themselves or hire an attorney.”

She said she is concerned with how the ombudsman’s office would work as a practical matter, whether it would advance the Nevada Public Records Act and if the ombudsman would help people navigate dealing with government agencies.

‘Whim of whoever is in charge’

While the creation of an ombudsman office in the executive branch is well-intentioned, it is not effective, according to Cuillier, who has done research on journalists’ and citizens’ abilities to acquire government information.

“They’re really at the whim of whoever is in charge,” he said.

Ombudsman offices within the executive branch are more likely to rule in favor of the agency rather than requester, Cuillier said. If they rule too often for the requester and are too effective in providing access, governments try to repeal them, he said.

In Oregon, a public records advocate resigned in 2019, allegedly after pressure from the governor’s office. Mexico had the best independent information commission system, in which 80 percent of its decisions ruled in favor of the people, but it was dissolved through a constitutional amendment because the new administration didn’t want that scrutiny, Cuillier said.

“That’s why independence is critical to make this work,” he said. “If it’s in the governor’s office or the AG’s office, it’s a waste of money.”

Some states have more effective systems, such as an independent commission or a freedom of information court. Ohio’s Court of Claims, a freedom of information court in the judiciary branch, is a better model, according to Cuillier. About two-thirds of the decisions go in favor of the requester, the decisions are binding, and it’s a timely process, he said.

Cuillier said an ombudsman’s office is not a good system, and it would be better not to implement anything than to pass a law creating an ineffective system, making it more difficult for a better process to begin.

“This is really the most important thing you can do in this country to save freedom of information, to save democracy,” he said. “We just gotta balance the scales for the citizen, because it’s out of whack right now.”

Other public records-related legislation to keep an eye on:

AB 51 allows the government to charge a fee for its use of personnel and technological resources to fulfill a request in addition to other authorized fees. It also requires a records request to be in writing and to identify the person making the request and requires the requester to “make a reasonable effort to assist the governmental entity in focusing the request.”

AB 152 exempts a state and local governmental entity from providing a public record that the agency is authorized to dispose of in accordance with a retention and disposal schedule of records.

McLetchie has concerns about both of those bills because they would leave it up to government agencies to decide what records can be accessed. They can decide whether to destroy them and decide to charge an additional cost to the actual cost already allowed in the Nevada Public Records Act, McLetchie said.

“That to me is really troubling,” she said.

Government agencies have destroyed records that had already been requested, McLetchie said. For example, in 2021 the Review-Journal repeatedly requested a copy of a surveillance video that showed an altercation between Las Vegas City Councilwomen Michele Fiore and Victoria Seaman. The city of Las Vegas destroyed the record after those requests were made.

“I think what the Legislature should be doing is assuring something like that isn’t happening, that if somebody needs a public record, the government shouldn’t delay responding — as they often do — and destroy the record and then say, ‘Oops, we don’t have it anymore.’”

Contact Jessica Hill at j ehill@reviewjournal.com. Follow @jess_hillyeah on X.

Maggie McLetchie is an attorney who represents the Las Vegas Review-Journal in legal disputes.