MINUTES OF THE
ASSEMBLY SUBCOMMITTEE ON GOVERNMENT AFFAIRS
Sixty-seventh Session
May 3, 1993
The Assembly Subcommittee on Government Affairs was called to order by Subcommittee Chairman Rick Bennett, at 9:07 a.m., on Monday, May 3, 1993, in Room 330 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda. Exhibit B is the Attendance Roster.
SUBCOMMITTEE MEMBERS PRESENT:
Mr. Rick C. Bennett, Subcommittee Chairman
Ms. Marcia de Braga
Mr. Pete Ernaut
Ms. Vivian L. Freeman
Ms. Gene W. Segerblom
OTHERS PRESENT:
George Cotton, Clark County Affirmative Action Manager
David Reese, Nevada State Contractors' Board
Lucille Lusk, Nevada Coalition of Concerned Citizens
David Edwards, Clark County Geographic Information System
Ande Engleman, Nevada Press Association
Joe Melcher, Washoe County Recorder
Melanie Mehan-Crossley, Deputy Attorney General
Margaret Lowther, Storey County Recorder
Nile Carson, Reno Police Department
Suzanne Beaudreau, Douglas County Recorder
GUEST LEGISLATORS PRESENT:
Assemblyman Gene Porter, Clark County District 8
Following opening remarks, Subcommittee Chairman Rick Bennett opened the hearing on AB 364.
ASSEMBLY BILL 365 - Substitutes civil enforcement of access to public records for criminal penalty.
Ande Engleman, Nevada Press Association, observed except for one suggested amendment regarding public payment of court costs, AB 365 had probably gained the most support from public employees. She said the present law stated denial of access to a public record was a misdemeanor and a crime. Without a statutory definition of what constituted a "public record," it was sometimes difficult for public employees to make a decision as to what was public and what was not. She said her organization supported removing the misdemeanor charge for refusing access to public records for a public employee. She also supported language on page 1, lines 3-9 as a compromise since they could not agree on an administrative procedure for appeal on denial of public records. The favored procedure, Ms. Engleman stated, would have carried a large fiscal note, and this did not appear to be an opportune time to bring forward anything of that nature.
Ms. Engleman said some Legislators had come to her saying they would favor an out-of-pocket, personal civil penalty as usual in most other states. This would apply in instances where an individual had purposely denied access to public records because the information would have proven embarrassing. She said they opposed having the public pay for court costs and attorneys' fees if a case was lost. The taxpayer had already paid for the other side's attorneys and court costs, through tax dollars.
Taxpayers were also paying the fees for the agency, Mr. Bennett observed. The question was, should the taxpayers, in general, have to cover those costs when the suit might be rather frivolous. Ms. Engleman noted the bill did not grant court costs and attorneys' fees if a suit was over a record everyone had thought to be confidential. Court costs and attorneys' fees were granted only when it was a denial of what was clearly a public record. Therefore, she did not think there would be frivolous lawsuits.
Mr. Bennett questioned the aspect of the judge's discretion in determining who should be awarded costs. Ms. Engleman opined the courts were generally very conservative. If an agency had truly withheld a record which should have been public, Mr. Bennett said he hoped the court would penalize the agency in some way by making them pay the costs.
Drawing attention to Section 3, Mr. Bennett said he had received communication suggesting the possibility of including a public "agency" in the language on page 1, line 10. Ms. Engleman said they had tried to look at the issue from everyone's point of view, but she did not think there would be a problem adding "agency."
Referring to Section 2, Mr. Ernaut asked if the language should specify "a reasonable request." In response, Ms. Engleman said she thought this was addressed in another bill and she did not see the need for additional language.
Representing the Attorney General's Office, Deputy Melanie Mehan-Crossley came forward to respond to Ms. Engleman's testimony. Ms. Crossley reported the Attorney General had asked that the court be given the discretion of granting attorneys' fees and costs when faced with this kind of lawsuit. She said she thought Ms. Engleman's testimony went to giving the court that discretion.
Mrs. Freeman questioned whether they preferred more flexible language than the language on page 1, line 8, "he is entitled to recover his costs. . .". Ms. Engleman said, "Yes," and they had submitted suggested language in earlier testimony.
Representing the State Contractors' Board and the City of Lovelock, David Reese asked the committee to consider loosening the language regarding attorneys' fees and costs to be awarded to the requester. He said there were many situations in which an existing confidentiality statute put the burden on the agency, commission or board, to make certain confidential records remained confidential. He felt there were good reasons why fees or costs awarded to the requester should be discretionary with the judge.
Addressing Mr. Reese's remarks, Ms. Engleman said where there was an exemption stating something was confidential, it should not be called into question as the material was clearly confidential. She said she thought the attitude of government, particularly over the past 10 years was, "when in doubt, keep it closed." She said they were trying to change this attitude to one of "where there is no exemption saying information is confidential, when it doubt it should be released."
Although Mr. Bennett acknowledged Ms. Engleman's remarks, he said he thought even though there had been a great deal of work done on AB 364 in trying to more clearly indicate what was open and what was closed, there would still be gray areas at least until people became more familiar with the new statutes.
Lucille Lusk, Nevada Coalition of Concerned Citizens, remarked from the individual citizen's point of view, the process for using the courts to resolve questions of confidentiality was extremely difficult, if not impossible. She asked if there would be an internal agency appeal process. Ms. Lusk believed there should be a way for an individual (as opposed to an agency) to appeal to a higher authority if there was disagreement as to confidentiality. Mr. Bennett suggested Ms. Lusk should address this further when AB 366 was discussed.
ASSEMBLY BILL 366 - Establishes procedures for public inspection of public records.
Both Ande Engleman and Dennis Neilander, Legislative Research Analyst, came forward. Ms. Engleman noted this bill was a compromise. In Section 2, the words, "other electronic means," was intended to mean FAX machines and public electronic data bases such as NELIS -- information the courts had ruled should be equally accessible by the public. Ms. Engleman said they had no intention or thought of trying to tap into confidential data bases in state government. She said the Press Association would have no problem with clarifying this section.
Also clarifying, Dennis Neilander explained there was a provision in AB 364 which provided security systems (or hardware system) would be confidential. Referring to AB 366, Mr. Neilander said the bill was largely based on the federal Freedom of Information Act and a study done 10 years ago, which made a similar recommendation regarding procedures for access. He said the law was currently void of any procedures for access and did not provide any procedural mechanisms for someone to either request a record or for the custodian of a record to respond. Thus, in subsection (2) of Section 3, page 1, if a public record contained both confidential and nonconfidential information it would redact out the confidential information.
Referring to language on page 1, line 26 speaking of an exemption provided in NRS 481.063, Mr. Neilander said this dealt with existing law requiring the Department of Motor Vehicles (DMV) to make an inquiry when someone asked for information regarding motor vehicle registration. If the Department determined the information would be used for illegal purposes, it could not release the information. Therefore, except as it applied to the DMV, the language of AB 366 stipulated the agency could not ask why the information was required.
Speaking to the subject, Ms. Engleman noted there had been an earlier bill in the Senate in which a public agency wanted the same permission to determine whether information was going to be used illegally. The DMV statute was clearly unconstitutional, Ms. Engleman stated, and this would be addressed during the exemption studies.
Returning to a review of the bill, Mr. Neilander pointed out Section 5, page 2, was the threshold determination of whether information was public record. If it was not a public record, the custodian would be required to inform the requestor of the right to make a written appeal. Thereafter, Section 6 stated a decision had to be made not later than three working days after receiving the written appeal of whether to do any of the things listed on lines 17-25. The term "unusual circumstances," as seen on line 18 (page 2), was defined on lines 31-36 (page 2). Mr. Neilander explained the subcommittee and the advisory group had deliberated over the number of days to impose with final agreement to adopt the "3" days initially and "13" working days after receiving the original request.
Page 3, subsection 3, lines 5-9, Mr. Neilander told the subcommittee was basically a "good faith" provision relating to law enforcement. He stated if there was an ultimate denial, subcommittee had proposed an enforcement mechanism to provide an expedited process to court. He said the subcommittee had studied states using an intermediate appellate system within an agency, and this approach was rejected. The subcommittee had asked Mr. Neilander to include in the report a fairly lengthy description of the models they had studied. Primarily, he thought the reason that approach had been rejected was due to the fiscal impact. After also considering the imposition of civil fees, this had also been rejected, instead going with attorneys' fees only if the requestor prevailed.
Mr. Bennett drew attention to Section 3, page 1, line 10. He asked if in the broad definition of "public record," i.e., maps, tapes, etc. -- whether it was the intention of the interim study to have copies made of those types of media as well. In response, Mr. Neilander said the language had primarily been taken from the Utah statute. Within the context of the Utah law, it meant a summary. Thus, a person could compile an abstract of the document they were actually looking at, and a facility would have to be provided to enable them to do that.
Ms. Engleman said they were presently running into a situation where a number of agencies had placed all their public information on computer; and this was not always made available to the public in hard copy. She told the subcommittee oftentimes the agency was very obstructive. She stressed the public should have the right to look at something, make notes and obtain whatever information they needed.
Questioning Ms. Engleman, Mrs. Freeman asked about language on page 1, lines 20-22. She said Mr. Isaeff from the City of Reno had stated the language was too broad. Ms. Engleman agreed an employee might not have the time to prepare the needed information, and if not, the public should be able to prepare it themselves and have access to that information. Ms. Engleman did not believe the language needed to be amended.
Mrs. Freeman asked if clarification was needed regarding whether there was "authorization" as shown in Section 5, page 2, line 3. Karen Cavanaugh had suggested to Mrs. Freeman the word "custody" needed to be clarified. Did the officer have that kind of authority? Ms. Engleman pointed out Ms. Cavanaugh was in data processing and as such, the Data Processing center had information from other agencies. Ms. Engleman said she believed there was another section of the law clearly exempting the Data Processing Department from supposedly having custody just on the premise they were running it through their machines.
Regarding earlier questions dealing with the DMV selling records to commercial users, Mrs. Freeman wondered if any changes to that premise should be made in Section 4. Mr. Neilander said he did not think so. The particular provision in NRS 481 did not address whether the information was open. A director would have an affirmative duty to inquire as to the intended use for the information. Thus, if the intention was to amend the provision of the law stating whether something was open, it would not be in Section 4. In AB 364 language dealing with closed records there was wording excepting those records otherwise declared open by state law; and this was where the DMV information was captured. He pointed out if there was a wish to amend whether DMV records were open or closed there was another provision in AB 481; however, this was not addressed in AB 366. Ms. Engleman reported the Elections Committee was hearing a bill on an interim study regarding all the exemptions to the public records bill. She was certain the issue would be discussed at that time.
Mrs. Segerblom pointed out the Attorney General's Office had suggested the 13 days should be amended to 20 days in language on page 2, lines 19 and 29. Mr. Neilander explained the subcommittee had discussed a range from 3 to 30, and there had been other suggestions to impose no time limit but only "reasonable" time. Thirteen had been chosen.
Mr. Bennett asked for clarification regarding the number of days. In response, Mr. Neilander said the 13 days was after receiving the written notice.
Regarding unusual circumstances, Mr. Bennett asked if there had been consideration given to working out language on page 2, line 18 regarding "unusual circumstances." Could this be amended to include "but not limited to these three particular situations." Ms. Engleman said she would have no problem with that. Mr. Neilander pointed out this was partially intended to be a list by example. As a bill drafting consideration whenever the word "includes" appeared, it would be followed by a list. The words "but not limited to" made the list a non-exclusive list opening the way for other reasons.
Referring to page 1, lines 21 and 22, "readily available," Mr. Bennett said he assumed when the summary or compilation was considered, this would be something probably prepared by the agency for a specific project. Ms. Engleman explained the kinds of records they were attempting to address were things usually readily available in the county clerks' offices such as building permits and records. One of the things the advisory committee had hoped to include was a longer list of those kinds of records which should be readily available such as was seen in Utah law. When questioned regarding the language, Ms. Engleman reported the bill drafter, Kim Morgan, had been under the impression the committee only wanted to give an example of the kinds of records readily available.
Mr. Neilander pointed out there was also a related provision in AB 368 which provided the agency did not have to reformat a document, it only needed to release the document in the format it was kept in. This relieved an agency from having to create an additional summary of a document. Mr. Bennett pointed out there had been a question of what "readily available" meant. Ms. Engleman acknowledged this.
Assemblyman Gene Porter, Clark County District 8, drew attention to language on page 2, Section 6, line 17, "Allow the requestor to inspect the book or record." He said it was not uncommon to require a "requestor" to inspect the book or record at the site where such book or record was normally stored. If the requestor then wanted copies, he would have to not only pay for the copies, but would also have to give the custodian of the record a reasonable time to produce the copy(ies).
Referring to a question from Ms. Lusk, Mr. Bennett asked Mr. Porter if there was any administrative procedure, short of going to court, for an individual to appeal a denied record. In response, Mr. Porter explained the determination of whether a particular individual would be granted inspection of the public record was fairly well left to the custodian of the record. He said they had discussed setting up a separate appeals board, but it was decided this was somewhat cumbersome, and there was also a reluctance to instill another government body to inspect yet another government body. Thus it was left to the custodian to be the judge. If the custodian did not comply with the law, AB 365 provided language allowing the requestor the right to apply to the district court for an order permitting him to inspect or copy and the court would give the matter priority over other civil matters. Mr. Porter further explained priority items.
Mr. Ernaut thought Ms. Lusk's question could be resolved with common sense. Mr. Porter agreed they had not intended to make this cumbersome and surely logic would dictate the actions of the requestor.
Although Ms. Lusk said they strongly supported AB 366, particularly the restriction on public officers to inquire regarding the intended use of a requested book or record; and subsequently using this information as criteria for whether a document or access could be provided. However, she took issue with Mr. Ernaut and Mr. Porter regarding the common sense appeal process. She insisted when something was written into law, it overrode common sense. Section 6 provided an appeal, but this did not speak to appeal to a higher level in the agency. The law indicated you would appeal to the same person and if that person denied you, then the next step was court. She thought it was desirable to clarify an appeal process through an agency would be included. This did not have to be a lengthy explanation.
Continuing, Ms. Lusk referred to page 1, Section 2 and the discussion of access by electronic means. She pointed out the "request" could be made by electronic means -- it did not speak to "inspection." She was concerned with the language on line 10 which required facilities to be made available for making abstracts, etc. She thought it should be clarified if an agency did not have a facility to make documents available, it should be clear the access was to whatever facility the agency had available.
Ms. Lusk also asked attention to language on page 3, line 7 stating, ". . .unless the officer knew at the time . . .". She asked for this to be amended to read ". . . unless the officer knew, or should have known, at the time . . .". She claimed this was standard language and the insertion would close a potential loophole.
Questioning the appeal process, Mrs. Freeman asked Mr. Porter to respond to Ms. Lusk's concerns. Mr. Porter responded he had no objection to a clarification stating the custodian was the determiner. If, in fact, the custodian was not the head of the agency or the supervisor, the language could state the request could be directed to the head of the agency. This was further discussed by Mr. Porter.
As for Ms. Lusk's suggestion regarding language on page 3, line 7, Mr. Porter concurred the words "or should have known" should be included in that Section.
Jim Wright, Washoe County Recorder's Office, agreed all the records in his office were open, and they had no objection to that part of the bill. They did object to language on page 1, lines 10 and 11 regarding facilities available for making copies. He pointed out his office kept records on microfiche and these were produced by the Reproduction Department. If they had to make those facilities available to the public to make copies of the microfiche film they would have to buy the machine to install in their office. He said they also had many records on 16mm and 35mm film made on a special machine in the Reproduction Department. He told the committee it would place a burden in terms of space and finance on his office. Mr. Wright pointed out his office was happy to make copies for the public, but making the equipment available to the public to make copies of the film was an entirely different matter.
Mrs. Freeman asked Mr. Wright how much a machine would cost to reproduce microfiche plates, however, Mr. Wright did not know. He assured Mrs. Freeman not every agency at the county level used microfiche to store records.
Mr. Porter asked where the machine used to reproduce microfiche plates was located. Mr. Wright told him it was presently located across the administrative complex but there were plans to move the facility three miles across town to another office. This was further discussed. In response to Mr. Bennett's question, Mr. Wright assured him they were capable of printing one page from a microfiche.
Mr. Porter stated it was not the intent to provide the microfiche itself -- it was solely the production of copies, an abstract or memorandum. Mr. Porter stated, "It is not the intent of this statute to make this gentleman reproduce the plastic microfiche card he held up for inspection to this committee." Ms. Engleman agreed with Mr. Porter's premise.
Joe Melcher, Washoe County Recorder stated his concerns. He said the word "facilities" also troubled him. Not only did he agree with Mr. Wright's concerns, there were space constrictions in adding additional equipment in their office. Also, the funding spoken to in AB 368 would prove very onerous and expensive. Mr. Bennett pointed out Mr. Porter's statement of intent. He suggested if Mr. Melcher would submit language which clarified this portion of the bill, the subcommittee would consider it. Mr. Melcher said he hoped they would exempt keepers of public records from the word "facilities." Mr. Bennett expressed doubts whether any exemptions would be considered.
Representing the Reno Police Department, Deputy Chief of Police Nile Carson came forward and expressed concern regarding AB 366. He acknowledged NRS 239 was inadequate; nonetheless, he was concerned with the provision regarding telephonic requests as stated in AB 366. Presently, nothing was provided over the telephone. He spoke to the myriad of records retained by the police department and criminal histories which were statutorily confidential. If NRS 239 was expanded as currently planned, he was not sure court law would continue to stand; and this would open up a whole new area of determining what was right and wrong to release to the public. He agreed there was statistical information which should be released to the public at any time; however, the language on page 1, line 12, "provide an explanation," meant clerk time to provide something or answer something. One of the reasons they did not provide from telephone requests was because there tended to be confusion regarding just what record a member of the public wished.
Regarding subsection 2, lines 15-19, Mr. Carson said he was concerned regarding additional staff time. Any additional staff time would impact his office adversely. Mr. Carson said he agreed records should be open, but he wished to be careful this did not go too far. He agreed to obtain additional information from law enforcement agencies regarding their concerns. Mr. Bennett asked Mr. Carson to provide this by 8:00 a.m. Friday when the subcommittee would go to a work session on the bills. Mr. Carson said he would try to get this done.
Mr. Porter brought attention to the words on page 1, lines 3-5 which said the request could be made telephonically. This did not mean the office had to answer the request telephonically. Mr. Porter also pointed out AB 364 specified anything currently confidential by statute remained confidential.
Testifying for the Storey County Recorder's Office, Margaret Lowther stated her concerns regarding the refusal to provide a record. She offered the example of the interest generated by the sale of Joe Conforte's property. The press had insisted that Storey County had a record of the disposal of the property, however, the records did not necessarily reach the courthouse immediately following a sale. Pointing out language on page 2, lines 18-21, Mr. Bennett thought this would resolve Ms. Lowther's dilemma.
Ms. Lowther was also concerned with the time required for a county employee to help someone create an abstract. She said the average person did not know how to create an abstract for themselves. If her office personnel helped an individual make up an abstract on their own property, the county officer would be held liable for any mistake made. Although all records since 1985 were on film or microfiche, the old records were still contained in books. Thus, Ms. Lowther wondered where they would obtain the funds to buy the equipment needed to fulfill the requirements of the bill. Mr. Bennett pointed out the way the bill was written, it would not be the responsibility of the Recorder's Office to provide the abstract or assist with making the abstract of the record. It merely meant the requestor would have the facilities available to do it themselves. Ms. Lowther insisted assistance would have to be provided by the employees.
Suzanne Beaudreau, Douglas County Recorder, echoed remarks made by Mr. Melcher and Ms. Lowther. Ms. Beaudreau submitted Exhibit C, a copy of a letter describing her office's somewhat complex procedure.
Returning to the suggestion made by Ms. Lusk regarding the addition of the words, "or should have known" on page 3, line 7, Deputy Attorney General Crossley said this was not a casual change. If these words were added, there would be less protection for the governmental entity making the difficult decision the record was a public record which should be released. Thus, the government employee would be even more conservative in his decision to release records. Mr. Bennett said he assumed this suggested the agency was orienting its staff to the current statutes or guidelines regarding public record and every staff person would be provided that information. "Should have known" added an extra level of fault, Deputy Crossley said; and this would impact on NRS 41 which addressed the ways and manners in which the state had allowed itself to be sued. In essence, Deputy Crossley said, necessarily a decision would have to be made related to confidentiality. There was the duty to make records available, but at the same time there was a duty to protect confidentiality.
In response, Mr. Porter said it was important to understand when looking at the context of AB 366, page 3, lines 5-9 and the language, "no action may be brought," the action referred to was specified in AB 365. This was mainly who was going to prevail. The penalty imposed was costs and attorneys' fees. Section 3 of AB 365 then gave a good faith defense in, ". . . is immune from liability for damages. . .".
Deputy Crossley did not agree. She argued if the bill was intended to read as Mr. Porter suggested, the language on page 3, line 5, "No action may be brought pursuant to NRS 41.031. . ." then would read, "No action may be brought pursuant to Chapter 239. . .", the public records law. She believed this addressed suing for damages if a confidential record was released. Mr. Porter insisted there was a good faith defense in AB 365.
Mr. Bennett stated the subcommittee would not hear testimony on AB 367 since it essentially was the same as AB 364. Hearing was opened on AB 368.
ASSEMBLY BILL 368 - Requires charges for copies of public records not to exceed cost.
Mr. Bennett reported he had received quite an amount of communication from local offices regarding the cost of copies. Many had indicated this would have a significant financial impact on their operation. He asked Mr. Porter to comment on this aspect.
In response, Mr. Porter said one of the major debates during the interim study was what the cost to the public should be. On one side, there was the premise the agency itself was taxpayer funded, therefore, a branch of government and the cost should be free to everyone. On the other hand there was the position more people would have to be hired to serve the numbers of people wishing to look at documents now public, and it was only right to charge for hiring the additional staff. A compromise had been sought. The committee had unanimously agreed concerning the cost and Section 1, lines 3-8 reflected the position of the interim study committee. This language also reflected the same standard a court used when it awarded costs under NRS 18.020.
Following the process through to its logical end, Mr. Bennett noted eventually the cost of additional personnel needed to provide the copying service would be levied on the taxpayer. Was it right to burden every taxpayer with these costs directed to a specific few? Mr. Porter replied, ". . . when we began this dialogue some two weeks ago . . . we were of the opinion that the law says everything is open now, and what had happened was different administrative heads would interpret the law differently as to what was and was not open to the public. And so there was no real guidelines for every executive agency or every municipality to administer the law in the same fashion. I cannot look into a crystal ball and tell you that this is such a radical change that everyone in Nevada will want to go copy every document that every governmental agency has . . . Mr. Chairman, I submit to you that should this change be enacted and two years from now the 1.3 million residents of Nevada have fully utilized this statute to the detriment of the governmental agencies, then I will be the first here to request additional money of Ways and Means to help them fulfill these requests. . . .".
Mr. Bennett asked the advisability of a phase-in period in which to propose their next budgets based on different financial criteria. Mr. Porter did not argue against this.
Referring to language on page 1, lines 9-16 dealing with charges, Mrs. Freeman questioned information dealing with public and private partnerships. Earlier testimony had suggested the records would have to be redacted to sort out what was public and what was private. Would AB 368 deal with this and how would it be reflected in the statute? Offering as an example, Mrs. Freeman said she had a contract in Washoe County with a private group. If someone wanted information, how would the law reflect that information would be available for public view. Mr. Porter said they had not envisioned this eventuality. He said he would have no problem with amending lines 9-11 to allow charges to be levied if personnel had to spend an inordinate amount of time redacting confidential information. The redacting itself took place in AB 366, Mr. Porter added. Mr. Porter and Mrs. Freeman agreed to make this an amendment.
Ms. Engleman stated there was a situation in Las Vegas similar to that described by Mrs. Freeman wherein public funding was given to a private organization to perform a redevelopment study. This study was never made public and the public was never allowed access even though taxpayer dollars had paid for it. As for paying a fee for redacting private information, Ms. Engleman stated a contract should automatically be public information and the money spent on that project should also be public information. Ms. Engleman said she had a problem with paying a fee for redacting private from public information. Many state agencies and other entities had combined confidential information with public information in order to prevent access to public information. She believed it came down to censorship if the public had to pay a huge fee to look at records which should never have been redacted in the first place.
Mrs. Freeman insisted some language should be included to make it possible for the average person in Nevada to get the information. She said she would be happy to work with Ms. Engleman and Mr. Porter to shape the language to reflect this.
George Cotton, Clark County Affirmative Action Manager, assured the committee his agency did not combine confidential records and public records to make them inaccessible to the public. For affirmative action purposes, particularly those doing business with Clark County and receiving federal funds, the affirmative action plans submitted by these entities were confidential documents. He was concerned some of these documents would become public, but said he had been assured by Mr. Porter that type of document would come under the confidential area enjoying protection. As far as cost factors, Mr. Cotton said he did not have a large staff and this would certainly create a fiscal impact. It would become important to be able to pass those costs along.
Representing Clark County, David Edwards said he was having difficulty rectifying the definition established for "public record" in AB 364. For years, Mr. Edwards said, local governments had been charging over and above the cost of supplies under the statutory term "reasonable fee." These fees were generally $.50 to $1.00. Although he acknowledged the burden this placed on some people, he maintained the agency's overhead was significant. Conservatively, Mr. Edwards said Clark County brought in $2 million in records fees, and this did not take into account the Recorders' or Clerks' Office. These generally were for providing such things as computer access, information lists, selling databases, etc. Was this a source public record, abstract or summary, or a service or product? he asked. Mr. Edwards said he was concerned with the most restrictive view which would state all the databases in their entirety consisted of a public record and copies of these would have to be provided.
Mr. Bennett asked if the $2 million was derived mainly from commercial interests or single copies. Mr. Edwards affirmed this referred to commercial interests such as title companies having on-line access to their machines, planning companies, map makers, databases for a negotiated fee, etc. Mr. Edwards opined presently this was a little situation which would grow into a large situation.
Mrs. Segerblom asked Mr. Edwards if he thought the costs should be set at the state level rather than the county or city level. Mr. Edwards said he did not think they should be set at the state level because each entity was in a different situation. He thought local governments should be given guidelines which included fees general enough to apply to the public and to the private sector.
Again testifying, Mr. Reese said AB 368, as drafted, would encourage waste and abuse of the records law in many cases. He suggested if it was said the only cost to be charged would be the "actual" cost, it would encourage people to have copied more than was necessary, simply for the person's convenience. He thought the government should look to recoup its cost in making these records.
Mr. Bennett asked Ms. Engleman what consideration the interim study gave to commercial interests and the revenue generated from those requests. Ms. Engleman recalled Mr. Edwards had testified before the interim committee and his suggestions had been considered. The problems were: 1) Government was not supposed to make a profit from returning to the public their own information and information they had already paid for; and 2) it was unconstitutional to charge one person one price and to charge another entity a different price. She expressed the hope each entity posted the prices and these were charged across the board.
Ms. Lusk stressed her organization's interest was the individual citizen. Citizens who wished to participate in the governing of their state should be provided ready access to agendas and backup material for any item prepared for public policy decisions. If charged at $1/copy, this backup material could run into hundreds of dollars. Ms. Lusk asked the committee to make certain written notice of public meetings would be provided free to the citizenry and backup material would be provided either free or at a reasonable per copy fee.
Mr. Bennett again indicated anyone who had additional information should submit it to him within the next two days. He announced a work session would be held at 8:00 a.m. on May 7th. He asked the committee to try to not make a great many changes but said he would consider amendments the committee felt very strongly about.
There being no further business, the meeting was adjourned at 10:59 a.m.
RESPECTFULLY SUBMITTED:
Iris Bellinger
Committee Secretary
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Assembly Committee on Government Affairs
Date: May 3, 1993
Page: 1