The Washoe County Board of County Commissioners on Tuesday will hear a proposal — being pushed by Washoe County Manager Eric Brown’s office and deputy district attorneys — to give the county the ability to hike public records fees.
Open government advocates say the proposal before commissioners violates the specific language of the Nevada Public Records Act (NPRA).
County attorneys said the fee hike is necessary to curtail what they say are voluminous and vexatious requests by a small handful of people. Their requests for records — such as millions of emails from one county employee’s email account — are the reason for the agenda item for the commission’s Tuesday meeting.
The Nevada Open Government Coalition, which includes the Nevada Press Association and the ACLU of Nevada, this weekend issued a rebuke of the proposal, which it said was based on the county’s faulty interpretation of 2019 changes to the NPRA.
“Never at any time was there a concession to allow governmental entities to charge for their regular personnel time,” the group wrote in a statement published online. “While there was some discussion about allowing government entities to charge for costs such as weekend overtime work for ‘incredibly onerous or incredibly large’ requests, that does not support allowing regular staffing time to be charged or any time to be charged except in very rare and unique circumstances.”
Assistant district attorneys, however, said statements by Nevada Senator Melanie Scheible (D-Clark County), when changes to the NPRA were being mulled in 2019 for Senate Bill 287, demonstrated her preference for governments to be able to charge for staff time. That’s what gives the county, therefore, the authority to charge for staff time.
Fees would kick in after a staff member spent two hours working on a public records order, according to the county proposal.
“The original draft of SB 287 included a prohibition on charging personnel costs,” said Lindsay Liddell, deputy district attorney, told This Is Reno. “That prohibition was removed in Amendment 1075 …. This shows an intent to include personnel costs as actual costs in cases where personnel costs exceed regular operating costs.”
County spokesperson Bethany Drysdale also said, “The legislative history of SB 287 sheds light on any ambiguity and shows that personnel costs can be charged as actual costs under the Nevada Public Records Act.”
The ACLU’s Holly Welborn called the county’s reasoning faulty. She was instrumental in the changes to the NPRA in 2019.
“A mere question or statement about fees during a legislative hearing is not enough to prove legislative intent,” she said. “The primary thing to recognize when making a legislative intent inquiry is that the statute must be liberally construed to benefit the requestor.”
Attorney Maggie McLetchie, vice president of the Nevada Open Government Coalition, also said the county’s proposal would violate the NPRA.
“The NPRA is crystal clear that governmental entities are not allowed to pass along overhead – including regular staff time – to people exercising their right to access public records,” she wrote in a statement to This Is Reno. “It now only allows for actual costs to be charged, and that term is defined to exclude regular staffing costs. And, even if the text weren’t clear, the NPRA says right in there that the government should apply it in a manner that furthers access, not limits it.”
McLetchie, who has successfully litigated against government entities in the Las Vegas area on public records matters, further said that it is a government’s responsibility to make available its records to those who want them.
“Washoe’s contorted interpretation runs afoul of the legislative mandate to apply the NPRA liberally and restrictions narrowly,” she added. “It’s important to remember that public records requests serve as a check on government power. That central purpose is rendered meaningless when governments charge high fees for access and if governments have discretion to punish requesters and avoid scrutiny by assessing improper fees.”
Robert Fellner with the Nevada Policy Research Institute suggested the county’s proposal — which is similar to public records fee structures it has already approved for the Truckee Meadows Fire Protection District and Washoe County Health District — is ripe for a legal challenge.
“Maybe it’s time to litigate,” he said in an email. “Including [costs for staff time] that the governmental entity would incur regardless of whether the NPRA request was made is expressly prohibited by [Nevada law].”
Welborn agreed.
“They will not win in court,” she said.
