Sisolak Strengthens Nevada Open Records ACT

On June 3rd, SB287 dealing with Freedom of Information Act (FOIA) and records requests went from the senate committee with a do pass (41 Nays no Nays). That legislation declared an emergency measure under the Constitution.

On June 13, 2019, Nevada Governor Stephen F. Sisolak  signed SB287 strengthening the Nevada Open Records ACT (N.R.S. 239 et seq).

NRS 239.001 is amended to read as follows: “The Legislature at this moment finds and declares that the purpose of this chapter is to foster democratic principles by providing members of the public with prompt access to inspect, [and] copy or receive a copy of public books and records to the extent permitted by law.”

Existing law

1. NRS 239.8 requires: “The head of each governmental agency of the Executive Department to designate one or more employees of that agency to act as records official for the agency.”
2. Existing law authorizes a person to request a copy of a public record in any medium in which the public record is readily available.
3. Under existing law, if a person requests to inspect or copy a public book or record or receive a copy of a public book or record which the governmental entity is unable to make available by the end of the fifth business day after the request was received, the governmental entity is required to provide written notice of that fact to the person who made the request and the date and time after which the public record or the copy of the public book or record will be available. (NRS 239.0107)
4. Existing law provides that if the requester prevails (in a legal proceeding), the requester is entitled to recover his or her costs and reasonable attorney’s fees in the proceeding from the governmental entity whose officer has custody of the book or record. (NRS 239.011)

2019 Amendments

1. Section 1. Chapter 239 of NRS is amended by adding to it a new section to read as follows:
   1. In addition to any relief under NRS 239.011, if a court determines that a governmental entity willfully failed to comply with the provisions of this chapter concerning a request to inspect, copy or receive a copy of a public book or record, the court must impose on the government entity a civil penalty of:
      1. For the first violation within 10 years, $1,000.
      2. For a second violation within 10 years, $5,000.
      3. For a third or subsequent violation within 10 years $10,000.
   2. A civil penalty imposed under subsection 1 must be deposited in and accounted for separately in the State General 80th Session (2019) Fund.
      1. The money in the account may be used only by the Division of State Library, Archives and Public Records of the Department of Administration to improve access to public records and is at this moment authorized for expenditure as a continuing appropriation for this purpose.
   3. The rights and remedies recognized by this section are in addition to any other rights or remedies that may exist in law or inequity.
   4. Section 1 of this bill provides that if a court determines that a governmental entity willfully failed to comply with the existing law governing public books and records concerning a request to inspect, copy or receive a copy of a public book or record, the court must impose on the governmental entity a civil penalty.
2.  Section 2 of this bill provides that the legislative intent is for such access to be provided promptly. With certain exceptions, existing law prohibits a governmental entity from charging a fee for providing a copy of a public record that exceeds the actual cost to the governmental entity to provide the copy. (NRS 239.052)
3. Section 3 of this bill clarifies that the actual cost to a governmental entity includes such direct costs as the cost of ink, toner, paper, media, and postage.
4. Section 5 of this bill specifically authorizes the electronic redaction of public books and records.
   1. Section 5 also requires, with limited exception, a governmental entity, if requested, to provide a copy of a public record in an electronic format using an electronic medium unless the public record was requested in a different medium.
5. Section 6 of this bill clarifies that the date and time provided to the requester must reflect the earliest date and time after which the governmental entity reasonably believes the public book or record will be available.
   1. If the public book or record is not made available by this date and time, section 6 requires the governmental entity to provide to the requester, in writing, an explanation of the reason the public book or record is not available and a date and time after which the governmental entity reasonably believes the public book or record will be available.
   2. Section 6 requires a governmental entity that is unable to provide access to a public book or record within the prescribed time period to make a  reasonable effort to assist the requester to focus the request in such a manner as to maximize the likelihood the requester will be able to inspect, copy or receive a copy of the public book or record as expeditiously as possible.
6. Section 7 of this bill authorizes a requester of a public record to apply to a district court for a similar order if a request for inspection, copying or copies of a public record is unreasonably delayed or if a person who requests a copy of a public book or record believes that the fee charged by the governmental entity for providing the copy of the public book or record is excessive or improper.
7. Section 11 of this bill provides that the provisions of the bill apply to actions filed on and after October 1, 2019, which is the effective date of this bill.
8. Section 13 of this bill eliminates the authority of a governmental entity to charge an additional fee for providing a copy of a public record when extraordinary use of personnel or resources is required. (NRS 239.055)