NV Legislators Looking To 'Clarify' Open Records Laws By Making Responses More Expensive, Easier To Deny

from the what-has-the-public-ever-done-for-us,-other-than-pay-for-our-EVERYTHING? dept

Open records laws are in place to force governments into public accountability. The word "force" isn't hyperbolic. There's plenty of evidence strongly suggesting most government entities are still very resistant to the idea. Lawsuits, public figures using personal email addresses, excessive fees, abuse of FOIA exemptions… all of these run contrary to the spirit of open records laws. Some run contrary to the letter.

Out in Nevada, legislators are crafting the "worst bill of the 2015 legislature" -- one that targets the state's open records laws specifically in hopes of further separating public officials from accountability.
Meet Senate Bill 28, which has its first hearing this afternoon before the Senate Government Affairs Committee. Brought on behalf of the Nevada League of Cities and Municipalities, SB28 attempts to make the release of public records so expensive that no one bothers asking for them.

Enter the Nevada League of Cities and Municipalities, which has been working for many months on a plan to spare its members from all those annoying records requests. Under Nevada’s public records law, governments can charge a fee if a request requires an “extraordinary use” of personnel or resources. So SB28 defines “extraordinary use” as a threshold that’s absurdly common...

Under the bill, “extraordinary use” of a government’s personnel or technological resources totals more than 30 minutes of work or “requires the governmental entity to produce or copy more than 25 pages of records or, for a request for a record to be delivered electronically, the equivalent amount of electronic data that, if printed using a type size not greater than 12 characters per inch, would produce more than 25 pages of records, to comply with the request.”
The world has shifted to digital, but governments cling to paper -- or "equivalents." This isn't some endearingly old-school trait, handed down by aged reps who have waged legislative wars for decades using nothing more than typewriters, fountain pens and dead trees. There's nothing quaint about it. It's simply a way to escalate fees while pretending to be "burdened" by the public's desire for transparency and accountability.
Agencies could charge 50 cents per page for documents as well as the cost for employees’ time to fill the request. An amendment offered by the Nevada League of Cities and Municipalities (NLCM) would reduce the cost per page to 25 cents for physical documents and charge the cost for any storage media used to fill requests electronically.
Either amount is ridiculous, considering most open records requests will be responded to digitally. (Even PACER's more "reasonable" $0.10/"page" charge for electronically-accessed documents… or search results… or search results that return nothing… is ridiculous. But it's still cheaper than many municipalities' per-page charges.)

Equally ridiculous is the proposal that any request taking "longer than 30 minutes" to fulfill be designated "extraordinary." This would push nearly every request into this category, making them subject to excessive fees or outright refusal. The same goes for the 25-page limit. Government employees are paid to fulfill these requests. It's part of their job, and they have no business claiming that fulfilling open records requests is an imposition and a hardship.

Very occasionally, outside help (usually of the legal counsel variety) will be needed, and government entities have every right to recoup fees paid. But they should err on the side of under-reimbursement, considering taxpayers have already paid for:

a) the generation of the records being sought
b) the wages of the person(s) fulfilling the request, and
c) the fees paid to outside consultants

Only the offset of direct costs can be justified (so as to keep agencies from carving holes in their own budgets). Everything else is prepaid. Per-page fees are nothing more than agencies skimming a bit more cash from the public's collective income.

In defense of this terrible bill, supporters cited "abusive" records requests, including a former government employee's "weekly records request," which is apparently being deployed as some sort of blackmail.
Brian MacAnallen, representing the City of Las Vegas, discussed two extraordinary requests. One required the city to review more than 2,500 emails. It took more than 250 hours to meet and resulted in 14,352 pages of documents being released. The city and the reporter who made the request scheduled a time to review the documents, but the reporter did not show up.

The other required the review of 7,434 emails of which 204 were determined to meet the request requirements. The review required 160 hours of employees’ time. Senior-level employees, including the city attorney, were required to review the documents before release.

A representative of the City of Henderson mentioned that his city was forced to complete weekly requests made by a disgruntled former employee. The former employee told city officials these requests would continue unless the city paid the former employee a sum of money.
In every case but the last, there are existing legal remedies in place. Excessively large requests can be handled either by charging the requester for reasonable expenses or by asking him or her to narrow the scope. This is common practice everywhere, and Nevada is no exception. The only change this bill would make is that it would allow normal requests for small amounts of documents to be refused for passing the 30-minute time limit and make larger requests (for a few hundred pages) prohibitively expensive.

As for the latter -- while tricky to navigate without further damaging open records laws -- the city could certainly gather documentation concerning the employee's stated motive and run it by the judicial branch for possible remedies. The danger, of course, is that any remedies may allow government entities to deny requests based solely on perceived motive. (This, too, has been part of the government's FOIA abuse. The FBI and other agencies have denied documents to certain prolific FOIA requesters solely on the theory that the requesters are seeking to trick agencies into releasing exempt information by sending multiple, overlapping requests for the same subject matter.)

Government agencies -- funded and sustained by tax dollars -- shouldn't be a worse deal for citizens than a trip to the local copy shop. And these agencies certainly shouldn't aspire to Domino's Pizza levels of bureaucratic opacity. "Thirty minutes or it's DENIED!" isn't exactly a slogan that inspires confidence in these agencies' trustworthiness.

Filed Under: expensive, journalism, nevada, open records, transparency


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  • identicon
    Anon, 17 Mar 2015 @ 10:37pm

    Everyone's First Choice: Digital Files

    Today, almost everyone wants a digital file with the information. This costs virtually nothing once it is vetted.

    When it is ready to release, it can and should be placed online where the public can freely reach and discuss it in the future.

    Any clear separately-justified privacy concern could be met by giving only the requester a decription key. Alternately, revert to a paper copy, at cost, if an unsophisticated requester can deal with nothing else.

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 18 Mar 2015 @ 3:58am

    It's part of their job, and they have no business claiming that fulfilling open records requests is an imposition and a hardship.

    Speaking from experience the employees often aren't even aware that there is a public request for information. It's often held on superior stances where they make up all sorts of excuses painting the public servant/employee as some sort of lazy slime ball that couldn't care less in the process. Sure there are these types that avoid work at all costs and I'm not denying it but when it comes to something that might put the Govt in a less than stellar light this tends to happen. I feel particularly sad when people complain about Govt employees and I know it's mostly not their fault.

    reply to this | link to this | view in chronology ]

  • icon
    Padpaw (profile), 18 Mar 2015 @ 8:32am

    the public is there to be exploited and abused by those that see themselves as above the laws they demand of everyone else. The self titled nobles in a land of serfs

    reply to this | link to this | view in chronology ]

  • identicon
    Chris Brand, 18 Mar 2015 @ 9:07am

    Wouldn't it be nice...

    ...if rather than trying to figure out how to avoid so many information requests, they instead worked to figure out how to fulfil them more efficiently, perhaps even pro-actively releasing information on the web ?

    You've also gotta love the logic - "there were two requests that each took over a hundred hours of employee time, so we're going to define anything over half an hour as excessive".

    reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 18 Mar 2015 @ 9:16am

      Re: Wouldn't it be nice...

      What? And run the risk that citizens might actually learn what the various agencies are actually doing?? That's just crazy talk.

      reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 18 Mar 2015 @ 11:24am

    Can you say "Taxation without Representation"?

    I knew you could.

    reply to this | link to this | view in chronology ]

  • icon
    GEMont (profile), 18 Mar 2015 @ 11:15pm

    Blind Faith is still Blind

    Personally, I cannot fathom how anyone can possibly trust any government official or member of any government agency.

    If government members were actually accountable to the laws of the land, there would be nobody walking in the halls of power, as they'd all be in prison.

    Every action they take proves that they cannot be trusted.

    An organization that can be trusted does not spend most of its time (and your money) working out ways of keeping everything it does a secret from those who pay their salaries.

    On the other hand, Criminal Organizations indeed do precisely that.

    I cannot help but wonder, what must a criminal organization labeled "The Good Guys" do, to make the American Public realize its actually a criminal organization and not really "The Good Guys".

    Lets see.

    They kidnap American citizens and incarcerate them in foreign prisons.

    They torture American citizens for fun because they already know that torture will not gain them any intel.

    They kill American citizens with a variety of methods, including drone bombs.

    They spy on all American citizens communications.

    They blackmail and coerce American citizens using the intel they gather from their surveillance programs.

    They destroy American citizens through cointelpro and character assassination.

    They steal the hard earned cash of American citizens for phony unwinnable "War On Whatever" projects that ear-mark billions of tax-payer dollars every year for pointless law enforcement and surveillance.

    They let the banks rob the American citizens for billions and then made the American citizens pay the banks trillions for getting caught.

    They have armed the police in military gear to treat the American citizens like an occupied public in a foreign war zone.

    They let the cops kill unarmed American citizens regularly without charge.

    They start wars on behalf of Commerical Corporate Interests that get American citizens killed by the thousands, every few years.

    They lie to get elected and then lie regularly thereafter as they do everything once in power that they said they were against during the election.

    The list goes on - feel free to add anything I missed.

    I guess they'll just have to start shooting white children in drive-bys, from their limos, before American citizens will see the writing on the wall.

    ---

    reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 19 Mar 2015 @ 11:28am

      "Shooting white children in drive-bys"

      They're already doing that by forcing parents to work so hard they have no time to parent, and by keeping our schools as an instrument of juvenile containment and indoctrination (e.g. "American Exceptionalism")rather than preparation for the real world.

      When the kids finally see the private sector there are few jobs, and most of them require tolerating abuse from the employers. They'll live paycheck to paycheck until an illness or a car wreck or an unexpected pregnancy or an incident with the law makes them unavailable for too long, and then they're fired and on the streets.

      The kids, even the white kids, are pretty much doomed. It just takes a while for the rich bullets to worm their work.

      reply to this | link to this | view in chronology ]

      • icon
        GEMont (profile), 21 Mar 2015 @ 12:00am

        Re: "Shooting white children in drive-bys"

        Actually that was exactly my point.
        The Giant still sleeps.

        In order to get the common American man and woman to realize they are under attack, it will be necessary for the wealthy to actually ride about in their limos and shoot white kids as they walk to or from school.

        Until that day, the American Public will continue to dream the American dream while living the American nightmare.

        As long as the wealthy keep telling folks that hard work will some day make them rich, while maintaining a societal system that literally prevents that very thing from happening, (unless the citizen is willing to take a second job as a criminal in the clandestine employ of the wealthy), the public will keep on reacting like a frog in a pot of water being slowly brought to a boil and do nothing at all until it is far too late.

        The sad part is, as you said, the wealthy don't need to actually shoot white kids, since the system they have created kills them and their non-white neighbors by the hundreds every day without a shot being fired.

        Sadder still, were you and I billionaires, we would likely be supporting the very same societal system that we are right now condemning. Money makes one crazy.

        ---

        reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 21 Mar 2015 @ 3:35am

    If we were billionaires.

    Probably. Human beings don't take to perspective easily unless we experience it ourselves. Cheney needed his own gay daughter before he understood the necessity for LGBT equality.

    But then again, I'm pretty sure that a billion dollars, or even a hundred million is a literal embarrassment of riches. Our wealth redistribution should be such that we don't see people with such assets. Instead such people are encouraged to start foundations to fuel charities, but if, and then which charities are often up to them.

    So you have people like Romney putting all his charity money into what is already a multi-billion-dollar megachurch.

    reply to this | link to this | view in chronology ]

    • icon
      GEMont (profile), 21 Mar 2015 @ 6:57pm

      Re: If we were billionaires.

      Wealth, sadly, is the greatest of all drugs, surpassing even religion, in its ability to turn a man into a frothing maniac, willing to sacrifice his own kin and anyone else to protect his assets.

      When you have a million dollars, you suddenly realize that you need another million to protect the first million, and so on, forever.

      The truly sad part though, is that wealth is also universally worshipped by humans and discussing its power to corrupt is more forbidden than discussing the medicinal uses of urine at the dinner table - definitely grounds for immediate ostracism anywhere on earth. :)

      ---

      reply to this | link to this | view in chronology ]


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