EDITORIAL

A balancing test?

Lorne Malkiewich has served 30 years with the state Legislative Counsel Bureau, 18 years as director. The LCB drafts Nevada's statutes and provides non-partisan audits, research and legal advice to the Nevada Legislature.

Mr. Malkiewich will retire before the start of the 2013 legislative session. But it appears he has left Nevada bureaucrats, who often bridle at the legal requirement that they "show their work" to the taxpayers on request, a little going-away present.

On Mr. Malkiewich's behalf, attorney Brenda Erdoes submitted to the Legislative Commission -- 12 legislators appointed to exercise policymaking and supervising authority over the LCB -- and won approval Wednesday for a set of amendments to rules and policies of the bureau regarding access to public records.

Section 1 of the new policies states: "The Legislative Commission recognizes the Nevada Supreme Court decision Donrey of Nevada v. Bradshaw ... (1990), has recognized a common law limitation of the provisions of the Nevada Public Records Act. This common law limitation requires an agency to balance the public interest in disclosure against the public interest served by nondisclosure to determine whether information is a confidential record. The Legislative Counsel Bureau shall deny any request for information if, on balance, the public interest in nondisclosure outweighs the public interest in disclosure. The request for the release of public information shall state the reason for the request so the legislative Counsel Bureau can weigh the public interest in disclosure."

So Nevada's public records law states all government documents are presumed to be public documents unless covered by a few specified exceptions -- personnel records and the like -- but now any member of the public seeking such documents from the LCB has to ask "Pretty please?" and further cite their reasons for seeking these documents, at which point the LCB will think about it?

Then, in the new rules just adopted, Mr. Malkiewich's office will look with particular suspicion on any request for documents "which reflect the opinions, recommendations, advice or thought processes of employees to any decision making official making decisions."

Barry Smith, executive director of the Nevada Press Association, responded quickly.

"My primary objection is to language in Section 1 ... which attempts to adopt a 'balancing test' as a determining factor in whether records are disclosed," Mr. Smith wrote in a Wednesday letter to Mr. Malkiewich.

"No such balancing test is contained in NRS 239" (the state public records law), "which underwent substantial and significant revision during the 2007 session of the Nevada Legislature. The Legislature had ample opportunity during hearings ... in the 2007 session to consider and, if desired, adopt a balancing test. It did not."

As for the 1990 Nevada Supreme Court case Donrey v. Bradshaw, "while commonly thought to have confirmed a balance test, in fact did no such thing -- at least, not as far as giving governmental agencies the authority to deny public access to a record. In Donrey v. Bradshaw, the majority opinion discussed whether the court itself should apply a balancing test of public interest against rights of privacy. The opinion did not establish a balancing test, nor did it give authority to governmental agencies to adopt one. ...

"There is no obligation on the part of the public to explain its interest in public documents," Mr. Smith writes.

Mr. Malkiewich said Friday that "I believe the material for the most part was taken from the state personnel regulations. ... I don't believe that any of this is new language proposed by the Legislature."

The 12 members of the Legislative Commission should take a closer look at this new set of rules, possibly with input from a few legal minds outside the LCB.

Trending topics:

• editorial
• LCB
• Legislative Counsel Bureau
• Legislature
• public records
• Lorne Malkiewich

Comments

Note: Comments made by reporters and editors of the Las Vegas Review-Journal are presented with a yellow background.

1. beentheredonethat Aug. 28, 2011 | 4:35 p.m. Report Abuse

   Rights cannot exist without governments. Doesn't take a legal mind to understand that a right is nothing more or less than what you can protect. There is no "inalienable" anything and never was if "inalienable" means something that cannot be alienated or taken then nothing in the world can be inalienable since everything can be taken. The entire "rights" discussion is nonsense; there is no such thing EXCEPT in relationship to governments. In other words, rights cannot exist in the absence of governments.

2. n7v.blogspot.com Aug. 28, 2011 | 4:11 p.m. Report Abuse

   BIG Government at work.
   
   These "balancing" tests are always such made up loads of BULL. The government has NO rights. Rights are ethical corollaries which exist to protect *people* from the government, not government from the people.
   
   Legal minds. Really.

3. xfmrhsd Aug. 28, 2011 | 3:31 p.m. Report Abuse

   And the spin goes on and on and on and on and on.

4. beentheredonethat Aug. 28, 2011 | 11:11 a.m. Report Abuse

   Taken completely out of context the question about whether government is "too big" cannot be answered rationally. Answering the question requires one to ask first what the purpose of government is? In this country, the answers would have to be understood within the context of the document that establishes the "purpose" of the government and sets out the authority of the government. Even those who attempted to define the "purpose" of the government did so generally with reference to the "powers" that the government would have. Authorizing the Congress to "provide for the common defense" is a pretty broad grant of authority. Authorizing the Congress to provide for the "general welfare" is also a pretty broad authority which is one reason why we have the general welfare provisions that we have today. In short, the government of this country will need to grow both when the economy is growing; to permit new industries to be regulated, and when it is shrinking, to provide for the "general welfare" of people who are, due to economically difficult times, more "in need" of those government services. This is why the government is, and has been growing.

5. xfmrhsd Aug. 28, 2011 | 9:57 a.m. Report Abuse

   This is what happens as government continues to grow larger. It as a whole begins to believe it is the be all and end all of society, therefore it detirmines what the remainder of the private or public needs to know. If allowed to continue to grow and carried to the conclusion we will all work for the government and there will be no private or public anymore to keep secrets from. This is the evedent case today as all our governments grow and the private sector receeds. This is also a major cause for the shrinking of the middle class. With very few exceptions (North Las Vegas being one) government is growing. Consider the larget employer in Clark County, the county itself. CCSD in particular. See the chamber web site. It needs to stop or things like the op/ed here will only get worse.

6. John F Aug. 28, 2011 | 8:23 a.m. Report Abuse

   Ridiculous. When it comes to the workings of our own government, the burden should be on the government to demonstrate in front of a judge an overriding reason why the public have no right to information. To put it in terms used for litigation and criminal trials, the burden should be beyond a reasonable doubt rather than a simple preponderance of the evidence. More of this absurd attitude on the part of government employees that they don't really work for us.