Pub. Employees' Ret. Sys. of Nev. v. Nev. Policy Research Inst., Inc.

• Decision Date: 18 October 2018
• Docket Number: No. 72274,72274
• Citation: 429 P.3d 280
• Parties: PUBLIC EMPLOYEES’ RETIREMENT SYSTEM OF NEVADA, a public agency, Appellant, v. NEVADA POLICY RESEARCH INSTITUTE, INC., Respondent.
• Court: Nevada Supreme Court

429 P.3d 280

PUBLIC EMPLOYEES’ RETIREMENT SYSTEM OF NEVADA, a public agency, Appellant,

v.NEVADA POLICY RESEARCH INSTITUTE, INC., Respondent.

No. 72274

Supreme Court of Nevada.

FILED OCTOBER 18, 2018

McDonald Carano LLP and Adam D. Hosmer-Henner and Joshua J. Hicks, Reno, for Appellant.

Joseph F. Becker, Reno, for Respondent.

BEFORE THE COURT EN BANC.

OPINION

By the Court, DOUGLAS, C.J.:

In this appeal, we consider whether the Nevada Public Records Act (the Act) requires the Public Employees’ Retirement System of Nevada (PERS) to disclose certain employment and pension payment information about its government retirees held in its computer database when sought through a public records request. We hold that where the requested information merely requires searching a database for existing information, is readily accessible and not confidential, and the alleged risks posed by disclosure do not outweigh the benefits of the public’s interest in access to the records, the Act mandates that PERS disclose the information. Because PERS represents that the computer database may no longer be able to produce the information as it existed when the public records request was made, we remand for the district court to determine an appropriate way for PERS to comply with the request.

FACTS AND PROCEDURAL HISTORY

Respondent Nevada Policy Research Institute, Inc. (NPRI) submitted a public records request to appellant PERS seeking payment records of its government retirees, including retiree names, for the year 2014. NPRI sought to post this information on their TransparentNevada.com website for the public to view. Despite having previously disclosed the requested information to NPRI for the year 2013, PERS refused to disclose the requested information for the following year. PERS argued that the raw data feed that an independent actuary uses to analyze and value the retirement system did not contain the names of its government retirees, only redacted social security numbers, and it had no duty to create a new document in order to satisfy NPRI’s request. NPRI alternatively requested any other records that would contain the following information for the year 2014: retiree name, years of service credit, gross pension benefit amount, year of retirement, and last employer. PERS still refused to disclose the requested information by denying the availability of any such record.

NPRI filed a petition for a writ of mandamus in district court seeking retiree name, payroll amount, date of retirement, years of service, last employer, retirement type, original retirement amount, and COLA increases. NPRI asserted that the requested information is not confidential because it is a public record and is easily accessible through an electronic search of the PERS database. Following an evidentiary hearing, the district court concluded that the requested information was not confidential, that the risks posed by disclosure did not outweigh the benefits of the public’s interest in access to these records, and that PERS had a duty to create a document with the requested information. Thus, the district court granted NPRI’s petition and ordered disclosure. However, the district court ordered PERS to produce only retiree name, years of service credit, gross pension benefit amount, year of retirement, and last employer.

DISCUSSION

PERS argues that the district court erred by requiring disclosure because the information was confidential, and the risks posed by disclosure outweigh the benefits of the public’s interest in access to the records. It also argues that the district court’s decision goes against this court’s holding in Public Employees’ Retirement System of Nevada v. Reno Newspapers Inc. , (Reno Newspapers ), 129 Nev. 833, 313 P.3d 221 (2013), where we held that there is no duty "to create new documents or customized reports by searching for and compiling information from individuals’ files or other records,’’ id. at 840, 313 P.3d at 225, and that the narrow exception we subsequently created in Las Vegas Metropolitan Police Department v. Blackjack Bonding, Inc. (Blackjack Bonding), 131 Nev. 80, 343 P.3d 608 (2015), only applies where the records are under the control of a third party, that third party can readily generate a report, and a report has been routinely generated in the past.

Conversely, NPRI argues that the information requested constitutes a public record under the Act because it is information that is stored on a governmental computer and that under Blackjack Bonding , PERS is required to disclose the information because the records are readily accessible and PERS has previously disclosed the information sought.

Standard of review

This court generally reviews a district court’s decision to grant a writ petition for an abuse of discretion, but when the writ petition raises questions of statutory interpretation, this court reviews the district court’s decision de novo. City of Reno v. Reno Gazette-Journal, 119 Nev. 55, 58, 63 P.3d 1147, 1148 (2003).

The Nevada Public Records Act

The Nevada Legislature enacted the Nevada Public Records Act to "foster democratic principles," NRS 239.001, and "promote government transparency and accountability by facilitating public access to information regarding government activities." Reno Newspapers, 129 Nev. at 836-37, 313 P.3d at 223 ; Reno Gazette-Journal, 119 Nev. at 59, 63 P.3d at 1149. To accomplish these goals of transparency and accountability, the Act provides that unless otherwise provided by statute or "declared by law to be confidential, all public books and public records of a governmental entity must be open at all times during office hours to inspection by any person, and may be fully copied...." NRS 239.010(1).

We are cognizant of these important goals and, thus, have held that the Act’s "provisions must be liberally construed to maximize the public’s right of access," and "any limitations or restrictions on [that] access must be narrowly construed." Reno Newspapers, Inc. v. Gibbons (Gibbons), 127 Nev. 873, 878, 266 P.3d 623, 626 (2011) (citing NRS 239.001(1)-(3) ). In addition, there is a presumption in favor of disclosure, and the governmental entity in control of the requested information bears the burden of overcoming this presumption by demonstrating by a preponderance of the evidence that the requested information is confidential.¹ NRS 239.0113 ; Reno Newspapers, 129 Nev. at 837, 313 P.3d at 223-24. This burden may be met by either showing "that a statutory provision declares the record confidential or, in the absence of such a provision, that its interest in nondisclosure clearly outweighs the public’s interest in access." Reno Newspapers, 129 Nev. at 837, 313 P.3d at 224 (internal quotation omitted). With this framework in mind, we turn to the parties’ contentions.

The requested information was not declared confidential by statute

PERS argues that the district court’s order would erroneously require PERS to extract information from government retirees’ individual files that are protected by NRS 286.110(3) and NRS 286.117. According to PERS, these statutes would be rendered meaningless if the information contained in government retirees’ files could be subject to disclosure. Because individual files of government retirees are confidential, PERS argues, so too should custom reports that are generated exclusively from these files.

As noted above, under the Act, public books and records of government entities are open to the public for inspection, "[e]xcept as otherwise provided" by statute or "otherwise declared by law to be confidential." NRS 239.010(1). In addition, official state records include "[i]nformation stored on magnetic tape or computer," NRS 239.005(6)(b). Among the statutes listed as providing a potential exception is NRS 286.110(3), which specifies that "[t]he official correspondence and records, other than the files of individual members or retired employees, and ... the minutes, audio recordings, transcripts and books of [PERS] are public records and are available for public inspection." (Emphasis added.)² NRS 286.117 additionally requires the individual member or government retiree to submit a waiver in order to review or copy their records. As these latter statutes limit and restrict the public’s right of access, we construe them narrowly.³ NRS 239.001(2)-(3) ; Gibbons, 127 Nev. at 878, 266 P.3d at 626.

This court has previously addressed the scope of NRS 286.110(3). See Reno Newspapers, 129 Nev. at 838, 313 P.3d at 224. In Reno Newspapers , PERS denied Reno Newspapers’ request "for the names of all individuals who are collecting pensions, the names of their government employers, their salaries, their hire and retirement dates, and the amounts of their pension payments" and "assert[ed] that the information was confidential pursuant to NRS 286.110(3)... and NRS 286.117." 129 Nev. at 835, 313 P.3d at 222. In opposing Reno Newspapers’ writ petition seeking the requested information, "PERS submitted a declaration from its executive officer explaining that all information related to the individual files is maintained as confidential but that PERS provides an annual valuation of its system in aggregate form as a public record," Id. at 835-36, 313 P.3d at 223. We held that " NRS 286.110(3) ’s scope of confidentiality does not extend to all information by virtue of it being contained in individuals’ files" and that "PERS ha[d] not identified any statute, rule, or caselaw that would foreclose production of the requested information." Id. at 838, 313 P.3d at 224-25.

In Reno Newspapers , PERS released the requested information to a third party for an actuarial evaluation, which made the information clearly available outside of an individual’s file. See id. at 838, 313 P.3d at 224 ("Where information is contained in a medium separate from individuals’ files, including administrative reports generated from data contained in individuals’ files, information in such reports or other media is not...