Fact Check: Did The City’s Lobbyist Mislead Council About Public Records Bill? (Subscriber Content)

The City of Reno’s new lobbyist, Dylan Shaver, last week said the news media was spinning the city’s opposition to a bill that would strengthen the Nevada Public Records Act. “We tried to be very clear in our presentation that the city is a very transparent body and that is something we value,” Shaver told the City Council. “We want to make sure people have access to speedy records, but there are a couple things in this bill; for example, exposing the [city] clerk to a $250,000 personal fine should we somehow fail to comply.”

But the Nevada Policy Research Institute, a conservative think-tank based out of Las Vegas, which is pushing the bill as part of a bipartisan coalition (ThisisReno is a member), said it was Shaver who was doing the spinning.

Two of four reasons he cited for the city’s opposition the bill were false, said NPRI’s Robert Fellner, and another was misleading.

“The original language imposed a fine between $1,000 and $250,000, per the court’s discretion, not a mandatory $250,000 fine,” Fellner said. “The amendment we gave Mr. Shaver [the day before he spoke to the Reno City Council] changed that fine to $500.”

Shaver, however, said that the amendment wasn’t worth talking about.

“There was no real appetite among the committee for their proposal, so to discuss it in front of the Council would be a waste of time,” he said in an emailed statement. “As a manner of course, the city will not support measures that expose municipal staff to personal fines for their work on the job, especially in an environment where the employee … would not receive any kind of exemption for working in good faith.

“This means, even if they were doing their job as advised by counsel or municipal policy or what-have-you, they would still face the penalties established in this bill.”

Fellner also said that Shaver’s characterization that the city would have to delay responding to the more difficult requests and to answer easier requests first is a “total fabrication. No such requirement exists in the bill.”

Shaver said the ramifications of the bill would, in practice, prioritize records requests.

“New language … requires that [if] requests are ‘readily available’ that they must be filled ‘as expeditiously as practicable,’ he said. “I’m not sure how else this could be interpreted other than how we describe: easy requests (ones where the record is on hand) must be filled as quickly as practicable. By virtue of resource allocation, this means that other requests would get in line behind those.”

Shaver also said part of the city’s opposition to the bill were turnaround timeframes for public records “that were just unrealistic.”

Fellner: “Another complete fabrication; there are no turnaround timeframes whatsoever included in the bill.”

Nevada law mandates that government entities respond as to the availability of public records within five business days.

Changes proposed to SB287 and the timing for release of records clarifies the existing law: “the governmental entity shall provide to the person, in writing, an explanation of the reason the public record is not available and a date and time after which the governmental entity reasonably believes the public record will be available for the person to inspect or copy or after which a copy of the public record will be available to the person.”

Moreover, “if a public record of a governmental entity is readily available for inspection or copying, the person who has possession, custody or control of the public record shall allow a person who has submitted a request to inspect, copy or receive a copy of a public record as expeditiously as practicable.”

Shaver:

“What this bill does is add to the duties of things staff must do within these timeframes, both set by their bill and their own… Furthermore, the measure enforces those timeframes with penalties entirely up to the court… The bill then goes on to establish other timeframes as well, for example: Sec. 2 establishes as policy of the State that access to public records is to be ‘prompt,’ without creating any guidance as to what that might mean. Sec. 7 creates the ‘unreasonable delay’ timeframe, wherein a citizen can bring a cause of action against the City if they believe we are just taking too long, regardless of the other timeframes captured in the bill.

“These ill-defined terms would be precedent-setting, especially when applied to a service-oriented organization like our own.”

Conclusion

Was Shaver intentionally misleading council and the mayor? It does not appear that way, but his presentation could have benefitted from more context.

The city is clearly opposed to these changes, but his cursory presentation was simply too short to explain the bill in detail, especially when the city is following more than 350 other pieces of legislation.

While it’s clear that the new bill would strengthen Nevada’s public records laws, at this point the bill is still being developed.

NPRI has taken a harder line on the bill, and Shaver’s presentation of SB287 did contain his own interpretations, as noted above, and those interpretations were certainly favorable to the city’s position.

Importantly, Fellner told me that the bill’s supporters incorporated most all of the major objections to the bill in their amendment, including removing the penalties against individuals.

The city council did not hear that part of the story.

In would be impractical to cover the nuances of lawmaking in such a short presentation; however, statements could be couched with caveats to ensure interpretations are noted as such.

It’s understandable how NPRI believed Shaver’s presentation was misleading.

What’s Next

The bill, SB287, was given an extension Friday and therefore is still under consideration by the legislature. Local government agencies widely oppose the law’s changes, while the news media and citizens have overwhelmingly testified in the bill’s favor.

City council has a meeting scheduled Friday to discuss it’s legislative priorities. The meeting is at 4 p.m. at City Hall.

UPDATE (4/16/19): The ACLU’s bill amendments and the bill draft are included below.

Disclosure: ThisisReno supports the bill, and I testified in its favor as part of the Right To Know Nevada campaign, the bipartisan effort aimed at strengthening Nevada’s Public Records Act. I also suggested the bill needed modifications. Read the testimony here.