Private Texts, Public Records: Nevada Public Records Act and Personal Cellphones Used for Public Service

By Daniel B. Heidtke

The Nevada Public Records Act (NPRA), NRS § § 239.001 et seq., requires that “public books and public records” must be open at all times during office hours to inspection by any person.  But, what is a “public record” and what makes a record, “public”?  On March 29, 2018, the Nevada Supreme Court addressed that issue and more by adding to its growing list of case law on the NPRA in Comstock Residents Association, et al. v. Lyons County Board of Commissioners, Case No. 70738, 134 Nev. Adv. Op. 19 (2018) (“Lyons County Board”).  In Lyons County Board, the Court built upon its prior opinion in Las Vegas Metropolitan Police Dept. v. Blackjack Bonding, Inc., 131 Nev. 80 (2015) and further explained that an otherwise “public record” does not become “private” simply because it is maintained in or upon private property.  Thus, the Lyons County commissioners’ private cellphones and email accounts constituted public records subject to disclosure so long as the records maintained on otherwise private devices and accounts concerned “the provision of public service.” 

Why does this matter?  On a macro level, robust public records laws (like the federal Freedom of Information Act, 5 U.S.C. § 552 et seq.), “ensure[s] an informed citizenry, vital to … a democratic society[.]”  NLRB v. Robbins Tire Co., 437 U.S. 214, 242 (1978).  On a micro level, public records can be a valuable resource in litigation – including litigation amongst private parties, which does not involve any governmental agency.  For example, certain amendments to the Federal Rules of Civil Procedure went into effect in December 2015.  Among those amendments was a revision to FRCP 26(b)(1), which now provides that discovery in civil litigation in federal courts is “proportional to the needs of the case[.]”  Perhaps a party is not able to satisfy this proportionality requirement with respect to a request for certain documents or information for any number of reasons (e.g., the party’s claim is weak, or the amount at issue is limited and complying would be overly burdensome).  If a document or information is held by a governmental agency, then a party may be able to obtain the document or information using a request through the NPRA or FOIA, even though that party is unable to use traditional discovery methods.  As the saying goes, when a door closes, search for a window.

Back to Lyons County Board.  The Nevada Supreme Court explained that the production of public records can be compelled even where such records are in the possession of private parties, and even in instances where the record is not open for immediate inspection at a governmental office (e.g., individual emails sent to a government official).  The key issue, the Court explained, was whether the information or documents sought were records of a governmental entity performing “a service rendered in the public interest[.]”  If yes, and the requested public records can be generated and obtained by a governmental entity, then the burden will shift to the government entity to present, with particularity, the grounds upon which a given public record is exempt.

© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.

The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

Proudly powered by WordPress