In a recent en banc opinion affecting all Nevada public entities, the Nevada Supreme Court addressed the scope of confidentiality under Nevada’s Public Records Act, NRS 286.110(3)(“the Act”). The case, Public Employees’ Retirement System of Nevada, a public agency v. Reno Newspapers, Inc., No. 60129 (November 14, 2013) can be read here.

The opinion arises out of a 2011 public records request [by a Reno-based newspaper, the Reno-Gazette-Journal, to Nevada’s Public Employees’ Retirement System (“PERS”)]. The newspaper sought the names of all individuals collecting pensions, the names of their government employers, their salaries, their hire and retirement dates and the amount of their pension payments.

PERS denied the request, claiming that the information under the Act was confidential because the personnel files of individual retired employees are not public records. The newspaper filed suit and succeeded in obtaining a writ for the information from the district court. Specifically, the district court ordered PERS to create a report for the newspaper containing the requested information, subject to applicable statutory fees and with home addresses and social security numbers redacted. PERS appealed. The Nevada Supreme Court affirmed in part and vacated in part.

The Act provides in pertinent part that:

The official correspondence and records, other than the files of individual members or retired employees, and, except as otherwise provided in NRS 241.035, the minutes, audio recordings, transcripts and books of the System are public records and are available for public inspection. (emphasis supplied)

The Court noted that the Act’s stated limitations on what is subject to disclosure via a public records request is narrowly construed. The Court found that where otherwise disclosable public information is contained in mediums other than an employee’s or former employee’s file, that information does not become protected under the Act simply because it is also contained in an employee's or retired employee’s file (“… we specify that NRS 286.110(3)’s scope of confidentiality does not extend to all information by virtue of it being contained in individual’s files.”). Thus, a Nevada public entity may not shield sensitive information from a public records request under the Act simply because that information is also contained, or summarized, in an employee’s or former employee’s file.

The opinion is broad and clear in its application to public records, but still preserves a public entity’s right to raise other statutes, regulations or case law that may preclude disclosure of an employee’s or former employee’s personal information. In this case, the Court found no other basis to disclose the information requested by the newspaper.

Finally, public entities will be relieved to know that the Court did vacate the district court’s order directing PERS to “create new documents or customized reports by searching for and compiling information from individual’s files or records …”. The Act and NRS 239.010(1)(permitting inspection and copying) and NRS 239.055(1)(“a request for copy of a public record”) does not contemplate that a Nevada public entity must create or compile information from different sources in order to respond to a public records request.

For public entities, the opinion is an important clarification of the scope of confidentiality with regard to information contained in employee and former employee files. In many respects, the opinion highlights the present reality that most data is created, manipulated and stored in electronic format and then disseminated to many different custodians of information within a public entity. Simply because information is also contained in a file that is in and of itself considered exempt from disclosure, does not cloak that information under the Act. Thus, at least at this point in time, information that public employees and former employees have traditionally considered private and sensitive is now very likely subject to disclosure via a public records request.

For requestors of information under the Act, the opinion highlights the need to make requests very specific and separate. If the goal of a public records request to discover information that is the sum of many other pieces of information, a requestor cannot expect a public entity to gather, compile and create a public record containing that sum information.