Law enforcement wants open investigation records kept secret. What does that mean for Nevadans?

The Nevada Supreme Court is weighing a decision that could severely limit the public’s understanding of how law enforcement does its job, experts warn.

The battle over public records stems from a traffic stop where a Reno police officer is accused of taking a woman’s phone and copying “intimate” photos from it.

The woman’s lawyer, Luke Busby, filed a public records request, but, after he was rebuffed, sued neighboring cities Reno and Sparks after the investigation had been referred to Sparks police.

Now, the records dispute is before the state’s high court.

Law enforcement and governmental entities are trying to use the case to obtain a ruling that declares records related to an open criminal case or investigation can be kept secret in Nevada.

First Amendment experts are worried about the consequences for the state if the high court returns such a decision.

“It’s hard for the public to trust what they’re not being allowed to see and sometimes there may be legitimate reasons why something does need to remain secret, but a blanket rule that says, anytime there’s an open investigation they can withhold everything, it’s excessive,” said Matt Topic, a national expert on public records law.

What law enforcement wants

In the last few weeks, law enforcement agencies and city attorneys have filed court papers making the case for a ruling that endorses secrecy. Several entities have submitted court documents, saying they have a stake in the case, in efforts to sway the court to their position.

A Sept. 22 brief filed by a group including attorneys for the Metropolitan Police Department, Las Vegas and North Las Vegas encouraged the high court to “announce a bright-line rule that investigative records in open criminal cases are confidential as a matter of law.”

“There is no question that the public has a strong interest in government transparency,” they wrote. “But the public also has a strong interest in protecting the integrity of criminal cases to ensure that those who commit crimes face appropriate consequences after receiving a fair and unbiased jury trial, and to provide justice for victims.”

Nevada Attorney General Aaron Ford’s office filed a separate brief, similarly advocating that records related to an active criminal investigation should be exempt from disclosure via the state’s public records law.

“(A) consideration of various approaches adopted in other jurisdictions demonstrates that strong public and private interests sufficiently supporting confidentiality under this Court’s balancing tests are present virtually every time someone seeks records pertaining to an open, active criminal investigation,” the attorney general’s office wrote.

Attorneys for Sparks also asked the Supreme Court to “declare via published opinion that active criminal case files created by law enforcement in anticipation of future criminal prosecutions are confidential as a matter of law until the criminal prosecution is fully resolved.”

Releasing active files “implicates the ability of the defendant to have a fair trial,” undermines criminal discovery, risks the integrity of the investigation and prosecution and could bias the jury pool, Sparks attorneys argued.

First Amendment experts’ concerns

Topic said what Sparks seeks would be “a pretty Draconian rule that goes well beyond what many or most states do, which is to require a showing of interference with that investigation.”

Currently, “There is no categorical exemption for records related to an open investigation,” said Las Vegas Review-Journal Chief Legal Officer Ben Lipman.

Review-Journal Executive Editor Glenn Cook said police investigative records have been made public in many cases for decades.

“Especially in cases of high public interest, police, while too often withholding records without justification, have disclosed body camera video and investigative findings that are part of ongoing investigations. Justice was never compromised,” Cook said. “These disclosures are essential to maintaining public trust. Adding more secrecy to law enforcement will only create a distrustful public.”

A ruling that open investigations are confidential would “allow the police to hide from the people what they’re doing,” Lipman said. It would diminish government oversight and could result in agencies keeping investigations open indefinitely.

The Review-Journal, Nevada Open Government Coalition and Nevada Press Association have also provided input in the case, saying that if the court follows law enforcement’s urging, it would “eviscerate the (Nevada Public Records Act) and shield law enforcement from public accountability.”

“Law enforcement agencies would be incentivized to claim investigations were open indefinitely while maintaining discretion to publicly disseminate records (or portions thereof) they choose,” they wrote. “Effectively exempting law enforcement from the (Nevada Public Records Act) would give law enforcement control over the flow of information regarding the criminal system, which is antithetical to democracy.”

The open investigation exemption is one of the “most abused exemptions in open records laws,” said Brendan Healey, a Chicago First Amendment attorney.

If agencies can withhold records during a pending criminal case, the public won’t know if law enforcement is doing its job and “any form of law enforcement misconduct will be a lot harder to discern,” he said.

Can transparency and victims’ rights co-exist?

Erica Bluth was stopped by Reno officer Tyler Baehr on New Year’s Eve 2023, according to her attorney.

During the traffic stop, the filing alleged, the officer took her phone to his patrol vehicle and copied “intimate photographs” of her.

“The city took appropriate and timely administrative action by swiftly launching an investigation and immediately removing Mr. Baehr’s police powers,” Reno Police Chief Kathryn Nance said in a statement.

Baehr resigned in October 2024 during the investigation, according to the statement. He is charged in federal court with two counts of deprivation of rights under color of law.

His attorney, John Arrascada, declined to comment on the allegations because the case is pending. Baehr is scheduled to go to trial in June 2026.

Bluth and another woman making similar allegations are also suing Baehr and Reno in federal court. Baehr invoked his Fifth Amendment rights and denied the allegations.

In February, Washoe County District Judge Barry Breslow ordered that Bluth receive redacted records that pertain to her.

Lawyers for Sparks argued that the judge “abused (his) discretion” by ordering partial disclosure and said the order should be reversed.

Bluth’s lawyer, Busby, appealed the District Court’s decision to limit the release of records to those related to Bluth’s case.

Sparks asserted records were kept secret to protect the rights of victims. That Bluth was herself an alleged victim was “wholly irrelevant to the analysis,” Sparks said.

“In this case, which involves the sexually explicit images and videos of numerous individuals, the then-unnamed and uncharged suspect, the various witnesses, the one identified victim (Ms. Bluth), and other unidentified victims all have substantial privacy interests that the City is required to consider before disseminating any records in this open, active, and unfinished criminal case file,” Sparks’ lawyers argued.

The ACLU of Nevada and the Survivor Representation &Advocacy Clinic at UNLV’s law school said in a brief that transparency is important for protecting victims and the public.

“State entities, including police departments, who enable abuse, should be preempted from using victims’ privacy rights to prevent the disclosure of misconduct,” they said.

Chris Peterson, legal director for the ACLU of Nevada, said the brief argues that “privacy is an interest that victims have, but so is accountability, so is justice.”

Contact Noble Brigham at nbrigham@reviewjournal.com. Follow @BrighamNoble on X.