Las Vegas Metro. Police Dep't v. Blackjack Bonding, Inc.
| Decision Date | 05 March 2015 |
| Docket Number | 63541.,Nos. 62864,s. 62864 |
| Citation | 131 Nev. Adv. Op. 10,343 P.3d 608 |
| Parties | LAS VEGAS METROPOLITAN POLICE DEPARTMENT; and Douglas C. Gillespie, Appellants, v. BLACKJACK BONDING, INC., Respondent. Blackjack Bonding, Inc., Appellant, v. Las Vegas Metropolitan Police Department; and Douglas C. Gillespie, Respondents. |
| Court | Nevada Supreme Court |
Olson, Cannon, Gormley, Angulo & Stoberski and Thomas D. Dillard, Jr., Las Vegas, for Las Vegas Metropolitan Police Department and Douglas C. Gillespie.
Armstrong Teasdale, LLP, and Tracy A. DiFillippo and Conor P. Flynn, Las Vegas, for Blackjack Bonding, Inc.
Josh M. Reid, City Attorney, and Michael J. Oh, Assistant City Attorney, Henderson, for Amicus Curiae City of Henderson.
Staci J. Pratt and Allen Lichtenstein, Las Vegas, for Amicus Curiae American Civil Liberties Union of Nevada Foundation.
Before PARRAGUIRRE, SAITTA and PICKERING, JJ.
The Nevada Public Records Act (NPRA) requires governmental agencies to make nonconfidential public records within their legal custody or control available to the public. NRS 239.010. It also entitles a requester who prevails in a lawsuit to compel the production of public records to recover reasonable attorney fees and costs. NRS 239.011.
In the present case, a private telecommunications provider contracted with Clark County to provide telephone services to inmates at a county jail and to make records of the inmates' calls available to the governmental agency operating the jail. At issue here is whether (1) this information was a public record within the agency's legal custody or control and thus subject to disclosure and (2) the requester of this information was entitled to recover attorney fees and costs. We hold that this information is a public record because it concerns the provision of a public service and is within the agency's legal control. We also hold that the requester was a prevailing party and thus entitled to recover attorney fees and costs pursuant to NRS 239.011.
In 2011, Clark County and CenturyLink, a private telecommunications provider, entered into a contract for the provision of inmate telephone services for the Clark County Detention Center (CCDC). Under the contract, CenturyLink provides a telephone system that could generate records of inmate telephone calls “for use in administrative and investigative purposes.” The records include, among other details, the number dialed, the call duration, the station originating the call, the call's cost, and the method of call termination. The system provides CCDC personnel with access to historical detail records containing multiple types of data, including calls to specified destination numbers, calls from specific inmates, completed and incomplete calls, and calls from specific inmate telephones. It allows the CCDC system administrators to print reports based on recorded data.
In 2012, Blackjack Bonding, Inc., made a public records request to the Las Vegas Metropolitan Police Department (LVMPD), the governmental entity that runs the CCDC. In the request, Blackjack sought “all call detail records from telephones used by [CCDC] inmates ... for 2011 and 2012”—specifically, “a call log that details the description of the phone used ..., the call start time, dialed number, complete code, call type, talk seconds, billed time, cost, inmate id, and last name.” Additionally, Blackjack asked for “a list of all phones used by inmates and the phone description, including whether the phone is used to place ... free calls, collect calls, or both.” Blackjack subsequently narrowed the scope of the requested information to calls to “all telephone numbers listed on the various bail bond agent jail lists posted in CCDC in 2011 and 2012” and conveyed that it understood “that the inmate names and identification numbers may need to be redacted.” LVMPD denied Blackjack's request, claiming that it did not possess the records.
Blackjack then petitioned the district court for a writ of mandamus to compel LVMPD to provide the requested records. In support of its petition, Blackjack submitted an affidavit from its president stating that before making the public records request at issue, Blackjack asked CenturyLink to provide call detail records regarding CCDC inmate calls to Blackjack's number and received this data on the day that it made the request. The district court granted in part Blackjack's request for mandamus relief, stating that (1) the requested records were public records that LVMPD had a duty to produce, (2) the inmates' names and identification numbers must be redacted before production, and (3) Blackjack would pay the costs associated with the production.
Blackjack also made a motion for attorney fees and costs. The district court denied Blackjack's motion because it found that (1) the order granting writ relief in part required Blackjack to pay the costs associated with the production of the records and precluded LVMPD from paying any expenses, including Blackjack's attorney fees and costs, and (2) Blackjack was not a prevailing party.
LVMPD appealed the district court's order granting partial writ relief to Blackjack. Blackjack appealed the district court's denial of its motion for attorney fees and costs.
The district court did not err or abuse its discretion in granting in part Blackjack's petition for a writ of mandamus
Pursuant to the NPRA, the public records and public books of a governmental entity are subject to inspection by the public:
[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, and may be fully copied or an abstract or memorandum may be prepared from those public books and public records.1
NRS 239.010(1) (2011). If the public record contains confidential information that can be redacted, the governmental entity with legal custody or control of the record cannot rely on the confidentiality of that information to prevent disclosure of the public record:
A governmental entity that has legal custody or control of a public book or record shall not deny a request made pursuant to [NRS 239.010(1) ] ... on the basis that the requested public book or record contains information that is confidential if the governmental entity can redact, delete, conceal or separate the confidential information from the information included in the public book or record that is not otherwise confidential.
NRS 239.010(3) (2011).
LVMPD argues that the requested records are not public records subject to disclosure because they (1) do not concern an issue of public interest, (2) involve communications between private entities, and (3) are not in LVMPD's legal custody or control.2 Moreover, LVMPD contends that it need not produce the requested records because Public Employees' Retirement System v. Reno Newspapers, Inc. (PERS ), 129 Nev. ––––, 313 P.3d 221 (2013), prevents it from having to create a new document to satisfy a public records request. Alternatively, LVMPD argues that if the requested records are public records, then a balancing-of-competing-interests test weighs in favor of nondisclosure because of the inmates' privacy interests and the burdens associated with production.
Blackjack argues that because LVMPD can acquire the requested information from CenturyLink at no cost, the information is within LVMPD's control. Blackjack also contends that the balancing-of-competing-interests test does not preclude production of the documents because LVMPD failed to offer a legitimate interest for denying the request for disclosure and because Blackjack resolved any privacy concerns by agreeing to redact the inmates' names and identification numbers.
Standard of review
We review a district court's grant or denial of a writ petition for an abuse of discretion. DR Partners v. Bd. of Cnty. Comm'rs, 116 Nev. 616, 621, 6 P.3d 465, 468 (2000). However, we review the district court's interpretation of caselaw and statutory language de novo. Liu v. Christopher Homes, LLC, 130 Nev. ––––, ––––, 321 P.3d 875, 877–78 (2014) (); Reno Newspapers, Inc. v. Haley, 126 Nev. 211, 214, 234 P.3d 922, 924 (2010) ().
LVMPD has a duty to provide nonconfidential public records over which it has legal custody or control
Here, neither party disputes that LVMPD is a governmental entity subject to the NPRA. Therefore, we consider whether the requested information is a public record subject to LVMPD's legal custody or control.
The requested information is a public record
NRS 239.001(4) mandates public access to “records relating to the provision of those [public] services” that are provided by “private entities” on behalf of a governmental entity. “[P]ublic service” has been broadly defined as “a service rendered in the public interest.” Merriam–Webster's Collegiate Dictionary 942 (10th ed.2000); see also V & S Ry., LLC v. White Pine Cnty., 125 Nev. 233, 239–40, 211 P.3d 879, 883 (2009) (); Black's Law Dictionary 1352 (9th ed.2009) (defining “public service” as “[a] service provided or facilitated by the government for the general public's convenience and benefit”).
Often, the “use of a telephone is essential for a pretrial detainee to contact a lawyer, bail bondsman or other person in order to prepare his case or ... exercise his [constitutional] rights.” Johnson v. Galli, 596 F.Supp. 135, 138 (D.Nev.1984) (). Nevada law protects a detainee's right to use a telephone while detained by providing that “[a]ny person arrested has the right to make a reasonable number of completed telephone...
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