MINUTES OF THE

      ASSEMBLY SUBCOMMITTEE ON GOVERNMENT AFFAIRS

 

      Sixty-seventh Session

      April 26, 1993

 

 

 

The Assembly Subcommittee on Government Affairs was called to order by Subcommittee Chairman Rick Bennett, at 8:40 a.m., on Monday, April 26, 1993, in Room 330 of the Legislative Building, Carson City, Nevada.  Exhibit A is the Meeting Agenda.  There was no Attendance Roster.

 

 

SUBCOMMITTEE MEMBERS PRESENT:

 

      Mr. Rick C. Bennett, Vice Chairman

      Ms. Marcia de Braga

      Mr. Pete Ernaut

      Ms. Vivian L. Freeman

      Ms. Gene W. Segerblom

 

 

OTHERS PRESENT:

 

      Assemblyman Gene Porter, Clark County District 8

      O. C. Lee, Nevada Conference of Police and Sheriffs

      Debbie Cahill, Nevada State Education Association

      Danny Thompson, Nevada State AFL/CIO

      Mark Balin, Professional Firefighters

      George Cotton, Clark County Affirmative Action Manager

      Mike Johaneson, Service Employee International Union

      David Reese, Nevada State Contractors' Board

      Lucille Lusk, Nevada Coalition of Concerned Citizens

      Brooke Nielsen, Assistant Attorney General

      Jim Richardson, Nevada Faculty Alliance

      David Edwards, Clark County Geographic Information System

      Ande Engleman, Nevada Press Association

      Donald Klasic, General Counsel, University of Nevada

      Brian Herr, Nevada Bell

      Stan Warren, Sierra Pacific

      Marsha Cobian, Nevada Telephone Association

 

 

ASSEMBLY BILL 364 -     Makes various changes regarding access to public books and records.

 

Opening the hearing, Mr. Bennett stated the meeting would primarily deal with AB 364.  The bill had come out of a series of interim studies, and he said he had received a number of suggested amendments. 

 

Commencing with Section 2, Mr. Bennett noted in AB 367 the definition of both a "governmental entity" and "public record" differed somewhat.  He observed the definitions in AB 364 were broader in detail and thus, would be used for the discussion.  Questioning line 9 regarding "proposed budget and supporting information," Mr. Bennett asked why this was included since final budgets normally determined policy.  In response, Mr. Porter, prime sponsor and Clark County Assembly District 8 representative, said during the 12 months in which hearings had been conducted, it was determined the documents which had been used to arrive at the final budget should be made a public record in order to be as open as possible. 

 

Mr. Bennett also questioned language on page 2, lines 4-9 dealing with the proposed budget draft and supporting information.  This language suggested some of the information was not included as a public record.  Mr. Porter answered this concerned the originator's personal use.  Mr. Bennett asked how it had been determined whether it was "personal" use or was part of a policy decision.  Mr. Porter said it was not their intent to invade the mental thought processes of the individual involved.

 

Mr. Bennett remarked the Nevada Association of Counties (NACO) had suggested the words "used" and "received" on page 1, line 11 were over-broad and should be deleted.  Mr. Porter asked why something "used" or "received" by a governmental entity should not be a public record?  Mr. Bennett opined the words "prepared," "owned" and "retained" provided sufficient coverage.  This was argued between Mr. Bennett and Mr. Porter.  Mr. Porter said he believed doing the people's business would be covered under the definition.

 

Turning attention to page 2, Mr. Bennett asked Mr. Porter if he would consider adding a subparagraph 10 on line 27 suggested by the Nevada State Education Association (NSEA), which would exempt the personnel files of school districts.  Mr. Porter noted this was covered on page 3, lines 24-29.  There were many problem areas dealing with public employees, promotions, job descriptions, job duties, etc., Mr. Porter pointed out.  In other subcommittee hearings, Mr. Porter said they had tried to balance the individual's right to privacy with the public's right to know.  They had tried to do this by deleting everything dealing with the individual's home or family and not related to obtaining employment, retaining employment, promotion, demotion or termination.  Those were the areas of a personnel file Mr. Porter thought the public had a right to know. 

 

Mr. Porter stated the committee had sought to assure personnel offices were operated ethically and above-board with everyone understanding the criteria.  If there was a blanket exemption of anything "used" or "retained" in a personnel file then every agency would adopt its own in-house procedure and use the personnel file as a depository safe from scrutiny.  Mr. Bennett commented the alternative was perhaps nothing would end up in a personnel file.  Mr. Porter was not convinced.

 

Continuing with a discussion of employment information, Mr. Bennett drew attention to page 2, lines 27-40 and commented, based on information received by the committee, concerns centered around employment records and law enforcement.  He questioned why an employee's gender was pertinent.  In response, Mr. Porter pointed out "gender bias" litigation was presently the fastest growing area in the United States. 

 

Questioning language on page 2, line 31, "Employees gross compensation," Mr. Bennett said he had received suggestions that a salary range, as opposed to the exact salary, would be more appropriate  Mr. Porter countered the public knew exactly what salary legislators were paid and why should the public not know what other state employees were paid.  He said he did not see this as an invasion of privacy.

 

Regarding annual and sick leave, Mr. Bennett said it had been suggested these records fell under medical information which should possibly be excluded.  Mr. Porter reiterated he did not think revealing these records constituted an invasion of medical history.  This kind of record did not divulge a type of medical problem or medical history.  He thought both annual and sick leave hours represented a benefit package not enjoyed by those in the private sector; and they were also benefits representing a potential for abuse.  If there was an abuse in the system of granting sick and annual leave, Mr. Porter thought the public had a right to know about it.

 

Mrs. Segerblom, referring to annual and sick leave granted by a school district, commented perhaps the formula used by a school district in granting sick leave was not appropriate if it allowed a person to combine sick leave and annual leave, and use the entire block of time for vacation.  Mr. Porter said his understanding of sick leave was that it was not granted for time off, but rather to be used when an individual had a physical disability prohibiting him from doing his work.  If sick leave accounts were not made a part of public records, there was no way to force accountability.  Mrs. Segerblom did not believe most teachers abused the system and, indeed, many lost sick leave hours at the end of their service.  Mr. Porter was not convinced there would never be situations of abuse.

 

Mrs. Segerblom thought the issue was a thing school administrators would be cognizant of and would take the proper actions to address; but Mr. Porter remained adamant it was the taxpayer paying teachers' wages, therefore, the taxpayer should have the right to see the records.

 

Referring to the language in subsection 2, page 2, Ms. DeBraga questioned Mr. Porter's statement regarding the inclusion of gender bias.  She noted the bill did not speak to racial bias although Mr. Porter had mentioned this.  Mr. Porter said he believed this was already addressed in federal law.

 

Opening the discussion on AB 364 to public testimony, O. C. Lee, representing the Nevada Conference of Police and Sheriffs, came forward and said his organization would concur with the amendment proposed by the state teachers as long as it could be amended to state "personnel records of public employees."  Mr. Lee said he did not believe it proper for the public, cum media, should have the right or the privilege to see an individual's personnel record or to be allowed to in any way make a judgment regarding the use of sick leave.  He thought the persons qualifying for access to personnel records should be the employers.  Mr. Porter countered the taxpayer could, perhaps, be considered a public employee's employer.  Mr. Lee believed the taxpayer did, in effect, elect and hire people to be the custodians of pertinent personnel files.  He said he was not in any way aware of anyone abusing sick leave.  If it did occur, they would be disciplined by their employer.

 

Debbie Cahill, Nevada State Education Association (NSEA), said they concurred with the change to the amendment on public employees.  The amendment they had proposed stated an exemption for personnel files of any employee in a school district.  In her conversations with certain attorneys, suggestions had been made to amend with a new subsection 10 which would state, "any record retained in the personnel file of an employee of a governmental entity," to be sure it included all public employees.  She said she knew there was an attempt to deal with personnel records on page 3, subsection (c), lines 24-28.  This language specifically referred to evaluations.  In obtaining employment she said she had talked to people who said if letters of reference were to be included in a file of an employee being considered for employment, they would be less candid in their appraisal when writing a letter of reference.  Thus, a school district would be hampered by not receiving a straightforward letter of reference.

 

Mr. Bennett asked whether various past legal situations discouraged candid letters of reference.  Ms. Cahill said she believed they did; however, if people knew their remarks, evaluations or letters of reference were going to be open for public view, they would be much less likely to be candid.  Additionally, Ms. Cahill saw any kinds of negative evaluations being used as a bludgeon against the individual many years down the line if such candid evaluations were available for public attention.  Thus, she reiterated the whole file [personnel] should be exempt.  She said their attorney had stated if it was exempt by a new subsection 10 (page 2, line 27) it would still be subject to access in the same manner presently employed if an investigation had to go forward.

 

Mr. Bennett asked if Ms. Cahill had brought her remarks to legislative attention during the many public hearings held during the interim period.  Ms. Cahill said the NSEA did not actively participate in the interim hearing, but had followed it through the minutes of the meetings.  It was not until the last meeting they became aware of the specific problem in the language.

 

Responding to Ms. Cahill's remarks, Mr. Lee told the subcommittee before he worked in law enforcement he had worked at the Nevada Test Site with an "acute" clearance.  Part of his personnel file from the Nevada Test Site was included in his personnel file at the Metropolitan Police Department.  If that record was open, he said he was not certain it would not place his employer in a libelous position in relationship to the documents in his file.  Mr. Bennett said it had been suggested that just because an individual had confidential information in his file, it did not mean the entire file was confidential.  Mr. Lee questioned, however, who made the determination.  Would it be the media, someone off the street, or his employer.  Mr. Lee believed the best determination of abuse came from an individual's supervisor or employer.

 

Danny Thompson, representing the Nevada State AFL/CIO, told the committee simply because he was a public employee did not mean he gave up his constitutional rights.  It was not that there had never been abuses in the public employee arena, but he did not see this as the purported conspiracy to defraud the state taxpayers.  Opening up the record for reasons of sick leave crossed the line into the constitutional rights of an individual and opened up a potential for abuse on the other side of the issue.  Mr. Thompson agreed with Mrs. Segerblom, the system hired managers and supervisors to administer and police any given agency.  He urged the committee to be cautious in its deliberations. 

 

Mr. Bennett pointed out as for retaliatory actions, an individual's home address, phone number would not be disclosed.  Mr. Thompson remained adamant he did not see the need for personnel records to be open.  Mr. Bennett said he thought the perception was an abuse of the sick leave system.  Government, in general, he said was not held in high esteem and the definition of "public record" had not been defined since it was first placed on the books in 1911.  Thus, to deal with the public perception, he thought there was some merit in making every effort to open up records for scrutiny.

 

Although Mr. Thompson agreed with Mr. Bennett's statements regarding public perception, he said he had no disagreement with being "open" but he thought AB 364 went too far and threatened the employee's constitutional rights.

 

Mrs. Freeman asked Mr. Thompson if he perceived AB 364 would open up her personnel records to public scrutiny.  Mr. Thompson said he believed it would.  Ultimately, he said most supervisors and managers were qualified and genuinely concerned with what was going on in their departments and sought to make certain no one was abusing the system.  If a problem of abuse became apparent, the person who was allowing the abuse to continue needed to be dealt with. 

 

Continuing, Mrs. Freeman really wanted to know how Mr. Thompson perceived to what extent records would be opened up.  Would persons using sick leave -- Medicaid or Medicare, doctor's records -- then become subject to public scrutiny.  Mr. Thompson did not have a definite answer how the details would play out.

 

Answering Mrs. Freeman, Mr. Porter said the reason why sick leave was taken would not be a public record.  He drew attention to page 1, line 15, where "public record" was defined; page 2, line 27, which defined "employment information;" and line 38, on page 2 which stated the "employment information" was limited to the amount of annual and sick leave taken by the employee.  Neither the reasons for taking sick leave, the ailment, medical records or privileged communication between the physician and the patient would be part of the open record.

 

Mark Balin, representing the Professional Firefighters, concurred that all public employees' personnel files should be exempted from public scrutiny.  Firefighters, police officers and all public safety people were daily exposed to the AIDs virus, he pointed out.  If, for instance, one of those employees ultimately had to use a great deal of sick leave in being tested for AIDs, Mr. Balin thought the press would have a "hey day" with the information and someone would have to answer "why" the person used a large block of sick leave.  He contended, in fact, this would be none of the public's business. 

 

Responding to Mr. Balin's remarks, Mr. Bennett pointed out language in the last part of the bill which indicated the specific information regarding medical history, circumstances, etc., were not to be disclosed, regardless whether an explanation was given or not.  Mr. Balin maintained sick leave was a benefit of a job and it was certainly not the public's business if, indeed, certain blocks of sick leave were spent on other than medically related activity.  In his organization, he said, if an individual called in sick, they were required to indicate why they were taking sick leave.  Therefore, if any sick leave record was open, it would automatically include the reason why the sick leave was used.

 

George Cotton, Clark County Affirmative Action Manager, also expressed concerns with certain aspects of the personnel information designated to be provided under the bill.  He said he had had experience on both sides of the issue.  Mr. Cotton thought the issue of gender could be used as a basis of discrimination against the individual.  For years his organization had sought to make sure that type of data, the sex, the race, etc., was information not included in personnel records nor was it to be disseminated to other people.  Also, he did not think it was necessary for payroll and salary records to be open for public view.  Referring to sick leave, he said opening these records would certainly open a potential for discrimination on the basis of a pregnancy-related illness, AIDS testing or other such personal business. 

 

Discussing sick leave, Mr. Cotton remarked in the county offices, when an employee missed a day, the administration could require a certificate of fitness from a physician, and if the employee missed three days they required a certificate of fitness from a physician before the person could go back to work.  Thus, the employee's use of sick leave was tracked.  Mr. Cotton predicted if the intent of the bill was not to see the reason for taking sick leave, two sets of books would have to be kept because generally this information was included in the same record. 

 

Responding, Mr. Bennett told Mr. Cotton he had received written testimony from the Metropolitan Police Department which indicated all the information listed in the bill in defining "employment information" was available through one avenue or another, except for the employee's gender and annual and sick leave information.  Mr. Cotton said he did not question this,  but he still believed such disclosure of information opened a potential for discrimination.

 

Mike Johaneson, Service Employee International Union, said one of his concerns was with the "double negatives" in the bill.  Drawing attention to page 3, lines 28 and 29, he said the language opened up records relating to obtaining employment, retaining employment, promotion, demotion and termination.  He believed the use and abuse of sick leave was an item up for discipline.  As long as lines 28 and 29 were included in the bill, and combined with lines 27 and 28 on page 1 ending with "but is not limited to" the language indicated the complete file was open.  He said he did not know how to amend the bill to ameliorate the premise it was a complete invasion of privacy.  Mr. Johaneson agreed with Mr. Cotton that opening up the gender issue and sick leave would not result in relieving gender bias but would only serve to do the opposite.  He also agreed with the amendments proposed by O.C. Lee and Debbie Cahill because the way the bill was written there was no protection for the public employee.

 

Following Mr. Johaneson, David Reese, representing the Nevada State Contractors' Board, echoed previously stated objections concerning personnel records for public employees.  He called to the subcommittee's attention to an additional concern surrounding the many employees working for independently funded boards.  These employees were not funded by the general fund and were not afforded the protections contained in the classified employee section; nor were they represented by a union or employee association.  These were "at will" employees and the entire system of the independently funded boards and commissions was an example of privatization in government.  He said he was concerned with the ex post facto effect of the bill as written.  He asked for particular consideration to this type of employee.  He also thought the issue was subject to being overruled in a court of law. 

 

Also referring to Section 2, Lucille Lusk, representing the Nevada Coalition of Concerned Citizens, said her perspective was somewhat different.  Generally, she said they supported the opening of public records and, indeed, supported most of the concepts in the proposed bills.  One of Ms. Lusk's particular concerns was the issue relating to proposed budgets, language on page 1, lines 8 and 9.  She pointed out some entities used a variety of budgets beginning with the adoption of a tentative budget, amended budget, final budget and perhaps a final amended budget.  Language on page 2, lines 4-9 dealt with what was genuinely a draft and what should be a public record.  She felt this was adequately defined.  However, she asked the committee to delete the words, ". . .final approval. . ." as seen on line 9.  She thought it should become a public record at the point it was submitted for any level of approval or adoption.  As for the personnel files, her position was that individually identified personnel files should not be public; and there was a need for an entity (private or public) to have some arena in which they could work with confidential matters relating to individual employees.  However, she said they strongly felt there should be some avenue for review of general trends which would not be filtered through the party line of the entity.  She said she did not know how to accomplish this, but did feel it was important.  Ms. Lusk objected to previous testimony indicating "none of the public's business."  This tended to cause a negative public reaction, she thought.  She urged the legislature to find the balance between what was truly needed for public record and what needed to remain confidential.

 

Brooke Nielsen, Assistant Attorney General, added her agreement to Ms. Lusk's remarks.  In an effort to clarify the protection the bill provided, she pointed out page 3, lines 24-29.  Assistant Attorney General Nielsen said, ". . . Chairman Bennett, you refer to the fact that medical histories, etc., would not be subject to release; and I believe it was referred to a moment ago that they would be, to the extent they relate to obtaining, retaining, demotion -- all of the personnel occurrences that take place in the course of public employment. 

 

" . . . under the Americans With Disabilities Act the medical history of an applicant or an employee was entirely part of getting the job, retaining the job, the employer is required to consider the medical history and the effect it has on the ability of the person to do the job, and you're required to accommodate disabled people.  The way this is written the medical histories of all disabled employees would be public -- and you may be providing some protection for other employees but not for those whose disability is something to which they are entitled to be given special consideration for.  And . . . in truth, there is no protection for that private type of information if it relates to your application or retaining your job or somehow is a factor in discipline, and you may have been demoted or disciplined -- and it may relate, in fact, to something personal, something that has to do with your family --so there really is no general protection on page 3, line 18."

 

Mrs. Segerblom asked if a person was demoted and there was a subsequent lawsuit, whether the personnel file would be open to the employee and the employee's attorney.  Assistant Attorney General Nielsen said, "Yes," this was correct.  It was accessible to the employee and the manager.  The proceeding remained confidential unless it went into the court system, but at that point it was clear to the employee any court action made it public record.

 

Although Mrs. Segerblom agreed with the procedure of a personnel file becoming open in instances of court action, she remained opposed to personnel files generally being open.  She believed job descriptions, the salary, and how an individual was rated should be public record, but to know sick and annual leave details was wrong.

 

Jim Richardson, representing the Nevada Faculty Alliance, came forward to voice three points.  First, regarding the issue of sick leave, he said his reading of page 3, lines 20-23, suggested the language through the word "data" offered considerable protection, but he took issue with the phrase, "only to the extent that the information would reveal the person's identity."  He said he was troubled with who would make the decision and how it would be made.  He urged an amendment which would place a period after the word "data" and drop the last phrase, "only to the extent that the information would reveal the person's identity."

 

Secondly, Mr. Richardson questioned the language in subsection (c), page 3, lines 24-29.  The University, he pointed out, spent a great deal of time evaluating employees.  Every professional employee and classified employee had an annual evaluation; and there was a three-year and seven-year extensive tenure review process.  He said he thought it was in the public interest for them to have a very rigorous evaluation system.  He agreed with comments made by Ms. Lusk, but when it got down to revealing detailed information in personnel files, this undercut a very important public policy in hiring and retaining the best people thorough an extensive evaluation process.

 

Mr. Richardson also believed there was a possibility for public abuse which would undercut the mission of education and he wholeheartedly supported other comments made in that regard. 

 

Before allowing Mr. Richardson to comment on Section 4, Mr. Bennett asked everyone to hold comments on anything other than Section 2 until later.  He indicated any guests who had not had a chance to testify should get their written comments to him as soon as possible.

 

David Edwards, Clark County Geographic Information System Manager, testified his group wished to endorse the amendments submitted by the Nevada Association of Counties and the Nevada League of Cities.  Referring to a question posed by Mr. Bennett regarding language on page 1, line 11 and the words "used" and "received," Mr. Edwards believed this went beyond what was required.  He did not disagree records "retained" should be public record.  He was concerned with setting up a public official to where there was noncompliance.  He said they received many technical journals and were concerned with "implied retention."  This could become a cost burden in terms of storage and maintenance.

 

On page 2, line 16, Mr. Edwards said they would also recommend substituting the words "Software and proprietary data" for the words "Proprietary software."  As written, Mr. Edwards believed it would make all software developed by governmental agencies public domain.  This broached security information.  Additionally, he said, there was a large private sector business in trading data and then licensing it to other organizations outside governmental organizations. 

 

Questioning the study, Mrs. Freeman asked Mr. Porter who the other legislators were who served on the study.  Mr. Porter answered these were Assemblymen Evans and Gibbons and Senators Titus, Cook and Neal.  Mrs. Freeman wondered how the group's recommendations fit in with federal legislation and what kind of court cases the state could expect if the language was adopted.  Mr. Porter said he would happily respond to Mrs. Freeman's questions, but this would take more time than the subcommittee had. 

 

Referring to Mr. Balin's testimony, Mr. Porter noted he had been asked to attend the subcommittee meeting to explain the reasoning behind an interim study recommendation.  He thought there was not a broad view being taken of the issue.  He drew attention to Section 4, which expressed current law in force since 1911.  The committee had tried to define this in respect to current policies.  If there were concerns with the question of privacy -- and if state law now protected certain areas of privacy -- this remained private.  Pointing out language on page 3, line 17, Mr. Porter stressed the concerns expressed regarding AIDs and the Americans With Disabilities Act were protected and addressed in the bill by the language on line 16. 

 

Moving on to Section 3, Mr. Bennett asked Mr. Porter to attempt to clear up any confusion regarding this language.  Mr. Porter noted there had been previous testimony regarding the difficulty in redacting, i.e., writing in the correct form, confidential information.  He drew attention to AB 366.

 

ASSEMBLY BILL 366 -     Establishes procedures for public inspection of public records.

 

Pointing out language on page 1, lines 17-19, Mr. Porter indicated the phrase, ". . . In such a case, before allowing the requested inspection, the officer shall cause the confidential information to be deleted, concealed or separated from the information which is not confidential."  This was a simple redacting process, he said.

 

Returning to a discussion of Section 3 in AB 364, Mr. Porter opined this was the "heart and soul" of the bill, and without it the bill would be killed.  He said there was no way a legislative body could think of every possible scenario of what should and should not be made available.  If the mission was to create a laundry list from which a judge could work, what occurred if one item was missed?  The perception was if the list was enunciated, would a judge's consideration question the intent to include a situation.  Since it was beyond the scope of a legislative body to conceive of each and every situation which could possibly occur, the only way the determination could be made was to have some sort of confidence in a judge who made decisions on public policy when the legislature either had or had not spoken.  Section 3 was a balancing test which would allow a judge to make a determination for a situation not envisioned or a situation in which there was a special circumstance where something should not be made public.  In essence, Mr. Porter said, the concept was that "everything is open."  Section 3 then turned around and closed some things, which allowed a judge to balance the interest.  On page 3, these items were enunciated.

 

Again coming forward, Assistant Attorney General Brooke Nielsen reiterated testimony she had given before the entire committee.  She agreed with Mr. Porter's assessment of how the bill would work.  She believed every record that had been made confidential either by state or federal law, would become subject to any judge in the state deciding on any given day, "well I think there's some reasons I'm going to let this become public," without the legislature ever having the opportunity to look at whatever record was being discussed that day in court.  This was why she had earlier testified ACR 29 should take place first. 

 

ASSEMBLY CONCURRENT RESOLUTION 29 -  Directs Legislative Commission to conduct interim study of exemptions to laws governing public records and books. 

 

Assistant Attorney General Nielsen said the records potentially being opened were the very ones the state legislature and the federal government in certain federal laws and regulations, had made confidential for good reasons.  Suddenly in Nevada, everything would be subject to being opened.  This should not happen until the legislature had the benefit of an interim study.  Assistant Attorney General Nielsen believed there should be a list of things which the legislature determined should remain closed; and the judge should not have access to opening those records.  She also believed every other type of record should, perhaps, be subject to a balancing test.  The legislative study could determine certain records were appropriately made confidential or if there was no longer good reason for the confidentiality.

 

These bills were a product of a legislative study and had been adequately discussed, Mr. Bennett pointed out.  Assistant Attorney General Nielsen said she had not personally participated in the interim study, however, there were people from the Attorney General's Office who had.  She said the interim study committee had specifically decided they did not have time to study all the confidential records which now existed and then to decide which should remain confidential and which should not.  For that reason, she said ACR 29 had been proposed. 

 

Returning to remarks made by Mr. Porter regarding Section 3 of AB 364, Mr. Bennett thought the language would allow someone to go to court to convince a judge that a restricted statute should be open.  Assistant Attorney General Nielsen agreed this was the way AB 364 would work if it was passed.

 

Mrs. Freeman asked if all states were struggling with the issue of public records.  In response, Assistant Attorney General Nielsen said she understood this was a national problem.  It was difficult to resolve a balance between what should be public and what should be private.  She pointed out that obviously government was asked to do certain things which needed to be private such as criminal investigations, child welfare investigations, adoptions, financial investigations, etc., and laws were needed to establish a balance.  She cautioned the Legislature to continue to consider the issue before passing AB 364.  She said in accepting Section 3 of AB 364, a big step was being taken without first being sure where it would lead.  If this was again studied, she thought by the next session of the Legislature they would be better able to propose and pass proper legislation.

 

Mr. Bennett referred Mrs. Freeman to the report from the interim study which discussed public record laws in other states, as well as the federal Freedom of Information Act.

 

Mr. Reese, again representing the Nevada State Contractors' Board, expressed agreement with comments made by Assistant Attorney General Nielsen.  However, he wished to go further by stating it was necessary for the committee to realize that the various confidentiality statutes enacted over a period of many years were created with careful and deliberate consideration and were placed in the various statutes for a purpose.  Section 3 of AB 364 gave the courts the opportunity to second guess in virtually every given situation.  He said he had personally had the opportunity to move to quash subpoenas of information the Legislature had mandated were confidential.  He had also heard numerous reasons and logical explanations as to why the records should be opened, in spite of the fact the Legislature had stated they were confidential.

 

The confidentiality granted many of the boards and commissions enabled them to gain necessary information to make good and proper decisions concerning licensing and regulation, Mr. Reese stated.  Allowing a judicial second guess on whether material should remain confidential would have a chilling effect on an agencys' ability to get the information needed to do its job.

 

Mr. Bennett thought there were boards and commissions established to protect the public interest which were, perhaps, acting to protect their own profession's interest instead.  If it was impossible to obtain access to the records of a board or commission, it would be difficult to make a reasonable decision.  Mr. Reese agreed there was the potential for mischief, but nonetheless, the Legislature had made a determination over the years of what kinds of things should remain confidential.  Ultimately, there was certain information people would not divulge unless they were certain it would remain confidential.  Also, there was information currently in files which had been offered on the basis it would remain confidential.  AB 364 would change this.  Calling attention to reading AB 364 in conjunction with other laws, Mr. Reese thought what was being done was to invite a judicial interference, reinterpretation and second guess of a decision in almost every case.

 

Representing the Nevada Press Association, Ande Engleman came forward to discuss the balancing test and to clarify and describe the "Bradshaw" case, which had served to open up records on the premise of "overwhelming public interest."  She said she had not found Nevada judges to be overly sympathetic to opening records, but rather were very conservative and weighed matters very carefully before this was done.  She agreed with Mr. Porter, the present public records law in Nevada required everything to be open.  It did not permit regulations to be made by any state agency which closed specific records.  However, this had evolved over the past few years.  Agencies had arbitrarily determined what was to be public. 

 

Again referring to the Bradshaw case, Mr. Bennett agreed to discussion on Section 3 and Section 4 as it related to law enforcement, investigations, etc. 

 

Donald Klasic, General Counsel for the University of Nevada, came forward.  Again discussing the balancing test, Mr. Klasic took exception to the explanation offered by Mr. Porter as it was contained in AB 364.  He said, "The way it works is this way.  . . . It works when you have a law that says, 'all records are open,' but the law does not say what records are closed.  The problem with that is the courts recognize that some records have to be closed -- medical records for example; and so that is when the balancing test comes into place.  You take a statute that says that all records must be open, you then look at it and then you apply the balancing test to determine which of those 'all records must be open' shall, in fact, be closed.

 

"What this statute does, however, is try to eliminate that problem.  This statute tries to eliminate the balancing test, because what this statute says is, 'all records are open but we're going to specify about 20 records that must be closed.'  That being the case, you don't need the balancing test any more, and what you have here in Section 3 is a perversion of the balancing test, because it says 'now that you've decided what is going to be closed, oh, by the way, it could be open -- a medical record could be open' under the balancing test as it is established here.  And that is the difference between what this does and what actually happened in the Bradshaw case.  In the Bradshaw case the courts held, and in point of fact these records were supposed to be open, but then you had to decide whether there was a privacy interest that required the criminal investigation to be closed.  It decided in this case that there was no such privacy interest and so it said, 'it shall remain open.'  That's how the balancing test works and that's why Section 3 is improper."

 

Mr. Bennett pointed out it was Mr. Porter's position it would be impossible to foresee all circumstances and create a list which met every situation.  Mr. Klasic maintained that was not the way it would operate.  The purpose of the advisory committee on which Mr. Klasic said he had served, was to devise a statute which would eliminate litigation.  He said they were trying to avoid the question of what was and what was not open.  If the records to be closed was defined, there would be no question or need for litigation.  Section 3 would reopen that question.

 

Mr. Bennett asked what would happen if an agency had some type of record not included in the laundry list, and still felt the record should be closed.  Mr. Klasic thought there was no way around this.  If it was not on the laundry list, it had to be open.

 

Again coming forward, Ms. Lusk commented on the two things Mr. Porter had stated Section 3 would accomplish.  First, the possibility of allowing a judge to open a record designated as confidential; and secondly, to cover anything which should be open that was not adequately covered with the basic policy that they were open unless there was overriding privacy interest in closure.  She suggested incorporating "except where access is restricted by a specific statute" which had been stated by language on page 3, lines 15-19.  She also suggested language which stated, "Any record of a public body must be disclosed; with respect to the particular record, the general policy in favor of open records outweighs an expectation of privacy."  She said they believed this would cover things not clearly specified, thereby allowing the balancing test.  Items which had been specifically mentioned as closed would remain closed, and there would be no question of opening those records.

 

George Cotton said he did not believe Section 4 related only to law enforcement.  If it did he would not object to it.  However, he thought the way it presently read it would open up closed sexual harassment cases in which there had been a promise of confidentiality, to individuals participating in those investigations.  He said they greatly objected to doing that.  He recalled a number of years ago the Legislature had made sure those investigations were confidential and would not be opened up unless it went to a public hearing.  He asked the subcommittee to consider that this went beyond law enforcement with a potential for harm to the public.

 

Again coming forward, Assistant Attorney General Nielsen drew attention to a letter to attorney Evan Wallach from the law firm of Lionel, Sawyer & Collins.  She said in her discussions with Mr. Wallach there had been efforts to compromise on certain areas of the bill.  No compromise had been reached on Section 4, partially because, as expressed in the letter, the Attorney General's Office had not studied all the different types of investigations which might be affected by Section 4.  Until that occurred they were unable to make an intelligent list of the investigations which should remain closed or private, even after the investigation was complete.  Assistant Attorney General Nielsen suggested the language on page 3, lines 37 and 38 should be deleted.

 

Offering an example of a case recently closed by the Attorney General's Office, Assistant Attorney General Nielsen told the subcommittee this had been a required investigation wherein 40 people had been interviewed.  Because of the fear of retaliation in the small county where it occurred, every person interviewed had asked the investigator whether the interview was confidential and whether it would remain confidential.  Presently, Assistant Attorney General Nielsen said, they could assure the witness of confidentiality unless the case went to court.  Most people, once they were called upon to testify in court if they felt strongly about the proceeding and protection was offered, were willing to go forward.  If the case did not go to court, Assistant Attorney General Nielsen stated those people should be assured of the protection of confidentiality.  If AB 364 passed as written, there could be no such assurance offered.

 

Again coming forward, Ande Engleman said she had seen no letter from the Attorney General's Office to her counsel.

 

Calling on Mr. Porter again, Mr. Bennett asked him to respond regarding the study committee's decision concerning adding language, "unless the investigation has been closed."  Mr. Porter allowed the power of the government to investigate its citizens was one of the most frightening powers bestowed upon the government.  It was also the power most susceptible to abuses.  However, Mr. Porter thought the knowledge of government investigation was a critical issue which should be opened.  He agreed abuses had taken place by the government spying on individuals, but on another level he would like to know who was being investigated and when; nor did he see it jeopardized anyone's security or compromised an investigation.  He also noted the language on page 3, line 39 specified the information related to the identity of a confidential informant was not to be disclosed.

 

Addressing certain portions of the language, David Reese said one of the provisions in the confidentiality statute made investigative memorandum confidential.  This type of memorandum contained an investigator's notes, perceptions, observations and other items not permitted in a court of law.  AB 364, Section 4, he believed, was overbroad in that it opened up investigative memorandum and this would contain information simply not proper for public examination.

 

Also taking issue with lines 37 and 38 on page 3, Jim Richardson acknowledged a leaning toward openness, but if certain kinds of records were opened he not only saw great difficulty in obtaining investigative information, the privacy of individuals would also be violated.  He agreed the language on lines 37 and 38 should be amended, while still recognizing the need for as open an avenue for information as possible.

 

Ms. Lusk stated again their bias was strong that an individual who had been investigated by the government had a right to know about the investigation and have access to those records; and the person who was the subject of an investigation had the right to disclose the investigation if they so desired.

 

Brian Herr, representing Nevada Bell, expressed concerns related to the competitive telecommunications industry.  Approximately 40 percent of Nevada Bell's revenues came from the competitive side of the business and the issue of confidential records, he reported.  He proposed an amendment to Section 4, page 3, line 20, to add, "(5) By a specific regulation of the Public Service Commission."  Also, he suggested a section be added on page 4, line 24 "(r) That the information is or has been received by the Public Service Commission, its staff or the Office of the Consumer Advocate under a confidential or nondisclosure agreement." 

 

Stan Warren, representing Sierra Pacific, concurred totally with Mr. Herr's proposed amendment.  He said although he had not followed the interim study on these bills, he should have.  Mr. Warren said a different aspect of confidential records surrounded low generation electricity which would be submitted to the commission and it included information from some of the bigger customers making it a very competitive issue.  He said they were also concerned regarding retroactivity.  As the bill was written it would require the Commission, the Office of the Consumer Advocate (OCA) and the Commission staff to make confidential information received in the past open to all.  These concerns would all be resolved by the amendment suggested by Mr. Herr.

 

Marsha Cobian, Executive Director of the Nevada Telephone Association representing all 12 of the local exchange carriers providing service within Nevada, went on record as supporting the amendment made by Mr. Herr.

 

In closing the hearing Mr. Bennett said he would schedule a second hearing to review the other four bills, AB 365, AB 366, AB 367 and AB 368.  A report back to the full committee would be made before the end of the week of April 30th.  He asked anyone with further testimony on AB 364 to place it in writing and get it to him as soon as possible.  There being no further business, the meeting was adjourned at 10:44 a.m.

 

                                          RESPECTFULLY SUBMITTED:

 

 

                                                                 

                                          Iris Bellinger

                                          Committee Secretary

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Assembly Committee on Government Affairs

Date:  April 26, 1993

Page:  1