By Karen Gray, Nevada Policy Research Institute
Why does Nevada Attorney General Catherine Cortez Masto keep running legal interference for politicians who want to keep the public in the dark?
Nevada’s open meeting laws are very clear: Government deliberations are to be open to the public, says NRS 241.010:
The Legislature finds and declares that all public bodies exist to aid in the conduct of the people’s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.
Lawmakers also held—see NRS 241.020 (5) and (6)—that a necessary part of public and open deliberations is ensuring that not only members of governing boards but also interested members of the public must have access to predecisional backup materials on agenda items. The law makes exceptions for materials in only three categories: 1) those with nondisclosure agreements related to proprietary information, 2) those reflecting the closed portion of meetings or 3) those declared confidential by law.
Despite the Nevada Legislature’s clearly demonstrated intent, however, the office of Attorney General Catherine Cortez Masto has chosen to sidestep the explicit provisions of state statutory law and instead insert blanket executive privilege into open meeting law questions—assisting other government officials in ignoring the plain language of the open meeting law and concealing their deliberations from the public.
The beneficiary of this latest offensive against the public’s right to know was the Clark County Board of School Trustees, last year. Late in 2008 and right before a public board meeting, Superintendent Walt Rulffes sent to trustees and certain staffers a lengthy e-mail memo discussing an agenda item of great interest to the economically hard-hit Southern Nevada community—the district’s looming budget review. In the document, Rulffes provided trustees with background information and tentative numbers on contemplated staff cuts, while also proposing strategies for dealing with the public. When a Las Vegas Review-Journal reporter requested the e-mail as back-up material under the open-meeting law, however, Rulffes and the district refused to release it, notwithstanding the clear requirement to do so under Nevada law (NRS 241.020 (5) and (6)).
Within four days, the R-J filed a complaint with the AG’s office against the CCSD school board. Attorney General Cortez Masto and Senior Deputy AG George Taylor then took 148 days to render a decision—again running out the clock on the 60- and 120-day statutes of limitations that plaintiffs face when they contemplate filing lawsuits to enforce the open meeting law.
Siding with the school district, the opinion deployed an argument that, if accepted as valid, would nullify central provisions of the open meeting law. It took the very subject matter that the law was written to open up to the public and made it, by definition, something to which the public had no right.
“Superintendent Rulffes’ December 9, 2008 e-mail communication to staff and the ,” wrote Taylor, “is shielded by executive privilege, as it was both predecisional and deliberative.”
As authority for this view, the opinion cited a “deliberative process” test that the Supreme Court had discussed in 2000 when it was interpreting the scope of a different law, the Nevada Public Records Act, in deciding the case of DR Partners vs. Board of County Commissioners of Clark County. Interestingly, even in that case the court had nevertheless rejected the bid for secrecy of Clark County commissioners and ordered the district court to “compel the disclosure of complete unredacted records ….”
Taylor makes much of a long-existing understanding in common and statutory law that materials qualify as part of the deliberative process if they consist of opinions, recommendations or advice about agency policies and an agency decision or policy can be identified to which the documents contributed. Nevertheless, the opinion fails to address the legislature’s explicit statement, in NRS 241.010, that its intent in producing the open meeting law was to ensure that “deliberations (emphasis added) be conducted openly” by public bodies.
Taylor also ducks the fact that the legislature, while mandating that backup materials be made available to the public, had also spelled out what exceptions it was making to that general mandate. The explicit and narrow nature of those exemptions — plus the legislative record — strongly suggest that lawmakers did not intend to give politicians and bureaucrats anything like the additional blanket executive privilege on agenda documents the AG’s office is now construing into the law.
The very nature of backup materials, quite frequently, is precisely to provide recommendations, opinions and advice to public bodies regarding policy decisions facing them. Indeed, supporting materials are by definition predecisional and deliberative. And it was the deliberative process of these public bodies that the legislature intended to be open to the people of Nevada.
Is it revealing that another opinion written by Taylor takes a tack that is significantly different? AG File No. 08-005, he notes, “is not an official attorney general opinion; it has not received internal review or approval; it is solely the opinion of the author.” Yet it approaches the arguable conflict between common law tradition and Nevada statutory law mandating open meetings with significantly more nuance than does the official AG File No. 08-040 opinion of the AG’s office, which went out under Cortez Masto’s name.
In that official opinion, the AG’s office insinuates that the doctrine of executive privilege mandates absolute privilege for the Rulffes memo. The reality, however, is that in common law, executive privilege is nearly always qualified—conditioned and limited by circumstances. And an obvious such limiting circumstance would be when lawmakers—as here in Nevada—have passed statutory law preempting areas of common law.
Thus, notes Taylor in his own opinion, “Confidentiality of information contained in public records is determined by examining statutes and regulations.” And, he points out, any withholding of a public record without statutory privilege—such as in the CCSD Rulffes case—must apply the balancing test to which the Nevada Supreme Court referred in the DR Partners case, one from an earlier decision, Donrey of Nev. v. Bradshaw.
Taylor explains this as balancing the interests of non-disclosure against the general policy in favor of open government:
In balancing the interests …, the scales must reflect the fundamental right of a citizen to have access to the public records as contrasted with the incidental right of the agency to be free from unreasonable interference … the burden is cast upon the agency to explain why the records should not be furnished.
That this decision is unpublished and the other is the official AG interpretation speaks volumes about the AG’s office under Cortez Masto and its commitment—or lack thereof—to open government and the open meeting law.
At the very least, the office should have acknowledged the merely qualified nature of executive privilege and directed the school district to release the Rulffes memo to the Review-Journal, redacting if necessary the candid personal views and strategies he shared with trustees.
Instead, Cortez Masto issued a blueprint to every public official in the state as to how to claim a bogus executive privilege for virtually any documents or materials.
Regularly, this attorney general places the public behind the eight-ball and rides to the assistance of politicians who view taxpayers and the public as uncalled-for meddlers in the conduct of government by their betters.
In this instance, as in others, the AG’s office seems perversely interested in raising the odds significantly against open and transparent government.
Karen Gray is an education researcher at the Nevada Policy Research Institute. For more visit npri.org.