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CARSON CITY — The American Civil Liberties Union of Nevada has just filed an amicus brief expressing support for the Nevada Policy Research Institute’s efforts to require the Clark County School District to abide by the state’s public-records law.

The 28-page brief, filed in the Nevada Supreme Court, reinforces the merit of NPRI’s argument that CCSD’s directory consisting of taxpayer-funded email addresses is a public record and should be made available to the taxpayers who fund them. In the document, three attorneys with the ACLU, Staci J. Pratt, Allen Lichtenstein and Amanda Morgan, explain why the August 2013 decision of the Eighth Judicial District Court to keep the email directory of CCSD teachers from the public is erroneous and should be reversed:

The email directory in question is a public record … of a local governmental entity that is “created, received or kept in the performance of a duty and paid for with public money,” as set forth in NAC 239.091, and is used by public school teachers in the ordinary course of their public occupations. The directory is not confidential because the email addresses contained within are generated by, maintained by and paid for by CCSD. 

NPRI sued CCSD after the district refused to disclose the email directory of public school teachers. CCSD then moved for dismissal and the District Court granted that motion, enabling the directory to remain secret despite provisions in the Nevada Public Records Act directly to the contrary. Earlier this month, NPRI filed its opening brief in the Nevada Supreme Court, which has a history of overturning lower-court decisions that hinder transparency.

ACLU’s brief notes that the state’s public-records law is to be construed liberally with the goal of providing transparency:

Thus it is clear that the Legislature intended liberal construction of all provisions of the Public Records Act, with the further clarification that any restrictions on that openness must be construed narrowly. While paying lip service to this principle, the District Court rendered a decision that directly contradicts both the spirit and the language of NRS 239.001.

Additionally, the ACLU’s brief exposes the hollow nature of the arguments provided by CCSD and accepted by the District Court on behalf of limiting transparency:

[T]he District Court appears to conclude that the actual emails themselves stored on the electronic InterAct system are public records, but that the email addresses contained within that system somehow fall out of the public record category. This distinction makes no sense. It would be the equivalent of stating that the books in a library are all public records but the card catalog would not be.

And:

Because [the directory of email addresses] is not confidential, it is not subject to any balancing test. Even if it were, the hypothetical list of horrors that might perhaps occur with disclosure, still cannot override presumption of openness and important public purpose of access to government and those who represent it.

Joseph Becker, director of NPRI’s Center for Justice and Constitutional Litigation, said the amicus brief is the latest in what has been broad and diverse support of NPRI’s case for transparency. Said Becker:

We are very appreciative of the support and the amicus brief from the ACLU, which has long been a champion for transparency in government. The ACLU’s amicus brief succinctly and persuasively shows that the records NPRI requested are public, must be disclosed and that the District Court erred in its ruling.

Government transparency is not a matter of left versus right, but government openness versus secrecy. We are grateful for the ACLU’s support and its willingness to lend its legal expertise in urging the Nevada Supreme Court to once again defend Nevada’s public-records act from a lower-court ruling that erroneously limited government transparency.

Case documents:

• Amicus brief filed by the ACLU: http://www.npri.org/docLib/20140130_amicusfinal2-23-14.pdf
• NPRI’s opening brief filed in the Supreme Court of the State of Nevada: http://www.npri.org/docLib/20140116_CCSDOpeningbrief.pdf
• An official copy of CJCL’s original complaint: http://www.npri.org/docLib/20130328_NPRIvCCSDComplaint.pdf

The Center for Justice and Constitutional Litigation is a public-interest law organization that litigates when necessary to protect the fundamental rights of individuals as set forth in the state and federal constitutions.

Learn more about the Center for Justice and Constitutional Litigation and this case at http://npri.org/litigation/.

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LAS VEGAS — Today's ruling by the Nevada Supreme Court — upholding the public's right to know in the face of resistance by the Nevada Public Employees Retirement System — is a welcome victory for public accountability, said Steven Miller, NPRI's vice president for policy.

Nevertheless, he added, it appears unlikely that the PERS fight against transparency — and against full public understanding of Nevada's heavy public-employee pension liability problem — will end soon.

"That's because the Court also vacated a lower-court order telling PERS to create customized reports that compile information from individuals' files or other records," said Miller.

The Reno Gazette-Journal had brought the case, asking that NV PERS fulfill a public records request seeking the names of all individuals collecting state pensions, the names of their government employers, their salaries, their hire and retirement dates, and the amounts of their pension payments. PERS denied the request on grounds that a state district court rejected, and then appealed that court's decision to the state's highest court.

"Frequently, recalcitrant public agencies in Nevada still use die-in-the-last ditch tactics to obstruct public knowledge of how they're actually using taxpayer money," said Miller. "And, unfortunately, the PERS record suggests that the agency may well move to that level of resistance."

Yet, he said, it remains “imperative that the public get a clear understanding of the types of pension benefits that are being paid out.

"What happens is that, as long-term pension liabilities continue to increase, Nevada’s state and local governments have to allocate more and more of their budget to retirement contributions.

"And those rising pension costs are starting to crowd out these governments’ ability to provide critical services such as fire or police protection," he said.

"In the past few years, we’ve seen cities from Vallejo to Detroit forced into bankruptcy — and its primarily because they were unable to keep up with rising pension payments for public employees.

"Here in Nevada, we're not immune to this danger — North Las Vegas is facing very similar challenges — and that’s why it’s important for the public to know exactly how pension money is being used."

A recent NPRI study noted that if PERS was subject to the kinds of audits faced by private businesses — Generally Accepted Accounting Principles, GAAP — its unfunded liability would amount to $40 billion. That's about $8,000 for every man, woman and child in the state. PERS instead uses a lower accounting standard that would be illegal for a privately managed pension plan.  its unfunded liability would be $40 billion — or about $8,000 for every man, woman and child in the state.

Miller speculated that the Nevada Legislature could choose to weigh in on the matter and mandate that PERS make all of the information requested by the Gazette-Journal publicly available on its website.

"For too long, Nevada PERS has fought its legal obligation to allow the public to see exactly how much public employees are taking home each year in their taxpayer-funded retirement," said Miller. "The PERS system in Nevada allows a lot of abuse, and taxpayers have a right to know how their money is being spent."

He also said that, on behalf of TransparentNevada — which NPRI publishes as a public service — the Institute will be updating its own requests for PERS retirement-system data, in order to publish in on TransparentNevada.com as soon as possible.

Miller concluded by applauding the Reno Gazette-Journal for its dedicated fight on behalf of public accountability and transparency.

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