UPDATE: Washoe County Sheriff Darin Balaam today announced he was pulling the item from the agenda, citing community feedback. Read that story here.
The intent and letter of Nevada’s Public Records Act are clear: Government agencies are producers and stewards of records that belong to citizens. More so, those records should be made available upon request to anybody, hopefully free of charge.
Many taxpayer-funded agencies, however, find the NPRA to be a nuisance to their day-to-day operations. The contortions political subdivisions, like the Nevada System of Higher Education, Incline Village General Improvement District and Washoe County School District, engage in to avoid following the NPRA are well documented.
From charging excessive fees, to simply ignoring legally mandated timelines to respond, the first instinct of public records stewards is often to find ways to bypass the NPRA’s mandate of openness.
When in doubt, the law and associated public records court cases say to err on the side of openness. There are plenty of examples from entities like the Nevada System of Higher Education — with its many lawyers at the ready — to find an exception, cite it and then deny information that demonstrates how well they are maintaining taxpayer resources.
The City of Reno and its associated entities were raking in a quarter million dollars in public records fees collected from people in a single year. The Public Records Act, however, says records fees should not be a revenue-generating source for a government agency.
Despite changes to the NPRA in 2019, which were designed to dissuade agencies from balking at public records orders, the only viable remedy remains to take the government to court.
There are exceptions to the NPRA, and those exceptions are frequently abused. Most agencies in Nevada claim to value openness, but when push comes to shove, agencies frequently ignore requests, mandate rigmarole or engender hostility in the face of handing over public documents.
The Washoe County Sheriff’s Office is the latest highly funded agency to claim hardship for having to be transparent. Bodycams were championed by local leaders. They were said to ensure transparency and maybe improve officer behaviors. They also serve to protect police officers, who face deadly and highly charged situations daily.
But the real-world roll-out of bodycams in Nevada is much different than what was promised. The reason is largely due to a Nevada law that gives to law enforcement extraordinary personal protection.
NRS 289.025 mandates images of police officers can only be made public if the officer gives permission to his or her agency. Privacy For Cops, a nonprofit, which wants more privacy for cops, reports that only seven states have similar protections in place for officers. The website offers services to remove officer data from online databases.
But it only offers those services in seven states because, the website maintains, those are the states that have privacy protections for law enforcement.
“We are currently offering services in California, Colorado, Idaho, Texas, Florida, Nevada and Utah. We are actively pursuing other States and their legislature to offer our services. If you are located in a state other than the ones we work in and know of legislature, which covers officers in your state, please contact us so we can provide services to you,” the organization posts on its website.
Most of those laws mandate keeping confidential officers’ residential addresses, addresses of relatives, social security numbers and telephone numbers.
According to the website, states such as California, Nevada and Florida have laws on the books that specifically prohibit publishing officer images.
Police agencies in Nevada, therefore, have to redact officer images from bodycam footage. That’s a lot of work.
The Washoe County Sheriff’s Office wants citizens to pay $200 an hour for the service. This proposal is up for consideration to the Washoe County Board of Commissioners at Tuesday’s meeting.
“The fee charged will be less than the actual cost to the Sheriff’s Office for providing the footage,” WCSO claims.
WCSO’s request, however will functionally dissuade average people from ever seeking access. Washoe County claimed people can come into the office and watch the video unredacted. It has not explained why it could do this but would redact the videos that are copied.
NRS 289.025 in practice is also absurd. While anyone can film cops in action in public, officer faces can only be made public by their respective agencies if cops give their permission.
Here’s how that plays out: This Is Reno requested in June bodycam footage from one of a Reno Police officer’s bodycams. The video shows Police Officer Ryan Gott making denigrating, threatening statements to the homeless near the Wells Avenue overpass. His bodycam footage shows people inside their tents, in obvious despair, but only the officers’ faces are blurred.
They were in a public area, conducting public business and were photographed and videotaped by the news media earlier in the day. Their identities are no secret.
But RPD had to redact their faces — because of NRS 289.025.
Similarly, when University of Nevada, Reno, cop Adam Wilson charmingly threatened to shoot a Black student, because the student was large in stature, UNR initially published bodycam footage of the encounter on YouTube and publicized it.
“I never had an officer make such repugnant comments to a member of the community,” then-UNR Police Chief Adam Garcia said at the time.
The university then, without notice to anyone, deleted the video. It cited NRS 289, even though the cat was out of the bag. UNR tossed aside one Nevada law — the NPRA — kowtowing instead to Nevada’s cop protection act.
An effort to make citizens pay for bodycam footage, and redactions in general, will face challenges. The California Supreme Court in May, for example, ruled that bodycam footage must be paid by agencies, not citizens.
Jim Ewert, general counsel for the California News Publishers Association, said the California Supreme Court’s ruling was “one of the most important Public Records Act cases that has been handed down by the Supreme Court in a while.”
Had California ruled otherwise, the state risked creating “insurmountable obstacles to the public’s right to know,” Ewert added.
Holly Welborn of the Nevada ACLU said law enforcement agencies should not be redacting officer images from bodycam footage at all. During the 2019 legislature, Senate Bill 242 originally included a provision to keep officer faces confidential, but that was later removed.
“They shouldn’t be blurring images,” Welborn said.
If Washoe County’s item passes, the Nevada Open Government Coalition, including the Nevada ACLU, Kenny Guinn Center, Nevada Policy Research Institute, Nevada Press Association and media organizations should then work to modify NRS 289 at the 2021 session of the Nevada Legislature.
Along with it, the Legislature needs to tighten up the NPRA so that agencies can’t continue to charge the public for employee time to produce public records. This widespread practice was supposed to have been eliminated by the legislature in 2019. It continues unabated.
This is evident when, here in Nevada, laws such as NRS 289 are propped up as an excuse to bilk the public and erect even larger barriers to transparency.
UPDATE: This article was updated to include the statements from Welborn.
