DR Partners v. Bd. of County Comm'rs

• Decision Date: 18 August 2000
• Docket Number: No. 31999.,31999.
• Citation: 116 Nev. 616,6 P.3d 465
• Parties: DR PARTNERS, a Nevada General Partnership, D/B/A Las Vegas Review Journal, Appellant, v. The BOARD OF COUNTY COMMISSIONERS OF CLARK COUNTY, Nevada; Yvonne Atkinson Gates, Chairperson; Lorraine Hunt, Erin Kenny, Mary J. Kincaid, Myrna Williams, Bruce Woodbury and Lance Malone, in Their Representative Capacities; Dale Askew, Clark County Manager, in His Representative Capacity, and Randy Walker, Director of Aviation, in His Representative Capacity, Respondents.
• Court: Nevada Supreme Court

6 P.3d 465

116 Nev. 616

DR PARTNERS, a Nevada General Partnership, D/B/A Las Vegas Review Journal, Appellant, v. The BOARD OF COUNTY COMMISSIONERS OF CLARK COUNTY, Nevada; Yvonne Atkinson Gates, Chairperson; Lorraine Hunt, Erin Kenny, Mary J. Kincaid, Myrna Williams, Bruce Woodbury and Lance Malone, in Their Representative Capacities; Dale Askew, Clark County Manager, in His Representative Capacity, and Randy Walker, Director of Aviation, in His Representative Capacity, Respondents.

No. 31999.

Supreme Court of Nevada.

August 18, 2000.

Campbell & Williams, Las Vegas, for Appellant.

Stewart L. Bell, District Attorney, and Mary-Anne Miller, Deputy District Attorney, Clark County, for Respondents.

JoNell Thomas, Las Vegas, for Amicus Curiae the Nevada Press Association.

BEFORE THE COURT EN BANC.

OPINION

MAUPIN, J.

The appellant, DR Partners, a Nevada General Partnership, dba Las Vegas Review Journal (the "Newspaper"), operates a newspaper of general circulation in Clark County, Nevada. The respondents are the Clark County Board of Commissioners, individual members of that board, and two managerial employees of county government (the "County").

The district court denied the Newspaper's petition for writ of mandamus seeking disclosure of unredacted records documenting use of publicly owned cellular telephones. It did so under the County's claim of confidentiality based upon a "deliberative process" privilege. The Newspaper seeks reversal of this ruling.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On February 9, 1998, the Newspaper requested that the county manager of Clark County produce copies of records documenting the use, over a two-year period, of publicly owned cellular telephones issued to the individual respondents. This request was made in connection with the Newspaper's investigation into possible government waste, and the extent of influence over public officials by private lobbying interests. The County partially complied with the request by providing billing statements for the time period in question in edited form, i.e., with the last four digits of the listed incoming and outgoing telephone numbers redacted. The documents produced reflected all calls made on a monthly basis, whether the calls were local or long distance, the length of each call, whether the calls were incoming or outgoing, whether the calls were made to or from government land lines, the charges for each call and the total monthly expenses. The redactions prevented any person reviewing the documents from determining the identity of the individuals with whom cellular telephone conversations occurred, or whether numbers with non-government prefixes reflected personal or government business use.

The County claimed that the redacted information was subject to claims of confidentiality on three grounds: first, the records were subject to a "deliberative process" privilege; second the disclosures were protected under an "official information" privilege, see NRS 49.285; and third, the disclosures sought would violate individual privacy rights of persons whose telephone numbers were listed on the billing statements.

On February 17, 1998, the Newspaper filed a petition in the district court for issuance of a writ of mandamus compelling the County to produce unedited records. See NRS 239.011. The district court denied the petition, and the Newspaper timely appealed. For the reasons stated below, we reverse the district court's order and direct that the district court compel the disclosure of complete unredacted records documenting use of publicly owned cellular telephones.

DISCUSSION

The County argues that the ruling below should be affirmed based upon statutory and common-law claims of confidentiality. In substance, the only issue determined by the district court was whether a deliberative process privilege protects the County from disclosing the redacted portions of the cellular telephone records. In its written decision, the district court impliedly rejected the official information privilege asserted under NRS 49.285, and did not reach the issue of whether individual privacy rights were violated. Because the district court refused to find the presence of a statutory privilege, the primary issue to be determined in this matter is whether a deliberative process privilege applies as found by the district court.¹ Because we conclude that such a privilege is not implicated in this instance, we will also discuss the related issue of whether privacy considerations protect the County from disclosure of the unredacted records.

A writ of mandamus is available to compel the performance of an act that the law requires as a duty resulting from an office, trust or station, see NRS 34.160, or to control an arbitrary or capricious exercise of discretion. See Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981). A district court's decision to grant or deny a writ petition is reviewed by this court under an abuse of discretion standard. See County of Clark v. Doumani, 114 Nev. 46, 53, 952 P.2d 13, 17 (1998). Mandamus is the appropriate procedural remedy to compel production of the public records sought in this case. See, e.g., Donrey of Nevada v. Bradshaw, 106 Nev. 630, 798 P.2d 144 (1990).

The Nevada Public Records Act provides that "[a]ll public books and public records of a governmental entity, the contents of which are not otherwise declared by law to be confidential, must be open at all times during office hours to inspection by any person." NRS 239.010. The purpose of the Act is to ensure the accountability of the government to the public by facilitating public access to vital information about governmental activities. Neither party to this appeal disputes that the records at issue are public records under the Act. This view is consistent with the prevailing weight of legal authority. See, e.g., City of Elkhart v. Agenda: Open Government, Inc., 683 N.E.2d 622 (Ind.Ct.App.1997); PG Publishing Company v. County of Washington, 162 Pa.Cmwlth. 196, 638 A.2d 422 (1994); Dortch v. Atlanta Journal, 261 Ga. 350, 405 S.E.2d 43 (1991).

The public official or agency bears the burden of establishing the existence of privilege based upon confidentiality. It is well settled that privileges, whether creatures of statute or the common law, should be interpreted and applied narrowly. See Ashokan v. State, Dept. of Ins., 109 Nev. 662, 668, 856 P.2d 244, 247 (1993) (citing United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974)). Unless a statute provides an absolute privilege against disclosure, the burden of establishing the application of a privilege based upon confidentiality can only be satisfied pursuant to a balancing of interests:

In balancing the interests ..., the scales must reflect the fundamental right of a citizen to have access to the public records as contrasted with the incidental right of the agency to be free from unreasonable interference.... The citizen's predominant interest may be expressed in terms of the burden of proof which is applicable in this class of cases; the burden is cast upon the agency to explain why the records should not be furnished.

MacEwan v. Holm, 226 Or. 27, 359 P.2d 413, 421-22 (1961); see Bradshaw, 106 Nev. at 635-36, 798 P.2d at 147-48.

In Bradshaw, this court, at least by implication, recognized that any limitation on the general disclosure requirements of NRS 239.010 must be based upon a balancing or "weighing" of the interests of non-disclosure against the general policy in favor of open government. Bradshaw specifically held that, in the absence of an express statutory privilege against non-disclosure, certain criminal investigative reports prepared by a public law enforcement agency were subject to disclosure pursuant to the balancing test. The Bradshaw court did not elaborate on the existence or scope of common law privileges protecting disclosure of public records. The claim of deliberative process privilege

As noted, the district court concluded that the records at issue were subject to partial non-disclosure under a common-law "deliberative process privilege." It then applied the Bradshaw balancing test and ruled that the production of redacted documents did not violate the Public Records Act. The County did not, in aid of the balancing process, provide the district court with particularized evidence showing that any interest in non-disclosure outweighed the general presumption in favor of public access. Noting apparent inconsistencies in the case law from around the country, and faced with a case of first impression in this state, the district court applied decisional law from California. See Times Mirror Co. v. Superior Ct., 53 Cal.3d 1325, 283 Cal.Rptr. 893, 813 P.2d 240, 242 (1991) (discussing the rationale behind the deliberative process privilege); Rogers v. Superior Court, 19 Cal.App.4th 469, 23 Cal. Rptr.2d 412 (1993) (holding that cellular telephone bills of the Burbank City Council and other City employees were subject to the deliberative process privilege). Having considered the various approaches taken by other courts, and having weighed the public policy considerations inherent in our Public Records Act, we respectfully disagree with the district court and conclude that these records are not protected under a deliberative process privilege.

The deliberative process or "executive" privilege is one of the traditional mechanisms that provide protection to the deliberative and decision-making processes of the executive branch of government and is preserved in "Exemption 5" of the Freedom of Information Act, 5 U.S.C. § 552 (1994). This privilege "shields from mandatory disclosure `inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency[.]'" Paisley v. C.I.A., 712 F.2d 686, 697 (D.C.Cir.1983) (quoting 5 U.S.C. § 552(b)(5)). It also permits "agency...