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Donrey of Nevada, Inc. v. Bradshaw

September 19, 1990


Appeal from a district court order denying appellants' petition for a writ of mandamus. Second Judicial District Court, Washoe County; William N. Forman, Judge.

The opinion of the court was delivered by: Young

Young, C. J. Springer, Mowbray and Rose, JJ., concur. Steffen, J., dissenting.

In March 1986, pursuant to a plea bargain, the Reno City Attorney's office dismissed charges against Joe Conforte for contributing to the delinquency of a minor. Because the Reno Police Department opposed the dismissal, it undertook an investigation of the circumstances of the dismissal and prepared a written report. The report, which concluded that there was no evidence of criminal wrongdoing (e.g. no bribery of a public official), was sent to the City Attorney's office, the District Attorney, and a municipal judge. Thereafter, both the City Attorney's office and the Police Department refused to release a copy of the report to petitioners Donrey of Nevada, dbaáKOLO-TV (Donrey), and Reno Newspapers, Inc., dba Reno Gazette-Journal (Reno Newspapers).

In April 1986, Donrey and Reno Newspapers filed a petition for a writ of mandamus based on NRS 239.010 which provides for disclosure of public records. In March 1989, the district court denied the petition, concluding that the report was a police investigative report intended by the legislature to be confidential under NRS Chapter 179A. The court further concluded that Chapter 179A did not involve a balancing test to determine whether such reports could be released if public policy considerations outweighed privacy and/or security interests. The court also found, following an in camera review, that the report was approximately 85 percent criminal investigation and 15 percent recommendations on future administrative procedures.

Appellants contend that the district court erred in concluding that the entire report was a police investigative report and in failing to release at least the 15 percent of the report that the court found administrative. As discussed below, because we conclude that the entire report was subject to disclosure based on a balancing of the interests involved, weáneed not address this argument.

Appellants principally contend that the investigative report prepared by the Reno Police Department is a public record subject to disclosure under NRS 239.010 because no statutory provision declares the contents of this type of report confidential. Pursuant to NRS 239.010, "all public books and public records of . . . government[] . . . officers and offices . . . the contents of which are not otherwise declared by law to be confidential, shall be open at all times during office hours to inspection by any person . . . ." (Emphasis added.) Specifically, appellants maintain that the district court erred in concluding that NRS Chapter 179A declares investigative and intelligence information confidential and not subject to disclosure.

NRS Chapter 179A was enacted in 1979 in response to the federal government's requirement that states "provide an acceptable plan concerning the dissemination of criminal history records, or be subject to certain budgetary sanctions." See 83 Op. Att'y Gen. No. 3 (May 2, 1983). NRS 179A.100(5) provides that

[r]ecords of criminal history must be disseminated by an agency of criminal justice upon request, to the following persons or governmental entities:

(i) Any reporter for the electronic or printed media in his professional capacity for communication to the public.

A "record of criminal history" is defined at NRS 179A.070 and á specifically excludes investigative or intelligence information. *fn1 Although this court has never interpreted the criminal history records statute, in 1983 the Attorney General rendered an opinion that criminal investigative reports were confidential and were not public records subject to NRS 239.010. See 83 Op. Att'y Gen. No. 3, supra.

Appellants maintain that the exclusion of the records listed in NRS 179A.070(2) from the definition of "record of criminal history" does not constitute a declaration of their confidentiality. Accurately observing that other excluded records are clearly not considered confidential, (e.g., posters of wanted persons, court records of public judicial proceedings), appellants assert that the Attorney General's opinion that investigative reports are confidential is inconsistent with the public status of the other records listed in NRS 179A.070(2).

Furthermore, appellants note that while Chapter 179A was patterned after the federal regulations concerning criminal history records, the Nevada legislature specifically deviated from the federal regulations when it excluded, along with other records, investigative and intelligence information from the definition of "criminal history records." See NRS 179A.070(2). Under the federal regulations, while the definition of "criminal history record information" is qualified not to extend to investigative information, a separate subpart specifically excludes various other records from the regulations governing disclosure of criminaláhistory records. See 28 C.F.R. §§ 20.3(b), 20.20(b) and (c), and Appendix -- Commentary on § 20.3(b) (1989). Unlike the federal regulations, the Nevada statute lists investigative and intelligence information together with other excluded records in the same subsection, NRS 179A.070(2), as not included in the definition of "record of criminal history" contained in NRS 179A.070(1). Appellants assert that the inescapable conclusion is that the Nevada legislature intended investigative reports to be subject to disclosure as are the other records.

Respondents maintain that this "overlap" does not appear to be intentional and they note that NRS 179A.070(1) states that "[t]he term [record of criminal history] is intended to be equivalent to the phrase 'criminal history record information' as used in the federal regulations." However, we reject respondents' argument that the legislature mistakenly lumped investigative reports together with other exclusions which are public records disclosable under NRS 239.010. Rather, we hold that the legislature deviated from the federal regulations with an intent to clarify that investigative reports are subject to disclosure if policyáconsiderations so warrant.

Because NRS 179A.070 does not expressly declare criminal investigative reports to be confidential, we must determine to what extent they are disclosable under NRS 239.010. While NRS 239.010 mandates unlimited disclosure of all public records, other courts considering this question have recognized the common law limitations on disclosure of such records. See, e.g., Carlson v. Pima County, 687 P.2d 1242, 1245 (Ariz. 1984); see also Records and Recording Laws, 66 Am.Jur.2d § 12 (1973). *fn2 Appellants argue that, under common law, criminal investigative reports were not confidential unless confidentiality was made necessary by considerations of public policy and on a case-by-case basis. Appellants note that the Attorney General's 1983 opinion lists a number of public policy considerations in support of the conclusion that criminal investigative reports are confidential. *fn3 In the present case, appellants argue that those same policy considerations favor disclosure of the report in question. Thus, appellants contend that the court erred in refusing to apply a balancing test to determine whether the investigativeáreport should have been released.

Respondents assert that in enacting Chapter 179A, the legislature performed the necessary balancing between the public's right to know and individuals' rights to privacy and that consequently no additional judicial balancing is required. However, while the legislature may have balanced interests in deciding to require the release of criminal history records to the media, this is not dispositive of whether a court must balance public policy considerations when release of records other than those specifically defined as criminal history records is sought.

In support of their contention that the court should have used a balancing test to determine disclosure, appellants rely on a number of cases from other jurisdictions. See, e.g., Carlson, 687 P.2d at 1245; Irvin v. Macon Telegraph Publishing Co., 316 S.E.2d 449, 452 (Ga. 1984). Although respondents contend that these cases are inapposite, we hold that a balancing of the interests involved is necessary regardless of the case law from other jurisdictions. *fn4 Moreover, in applying a balancing test to this case, none of the public policy considerations identifiedáin the case law and the Attorney General's opinion as justifying the withholding of investigative information is present. There is no pending or anticipated criminal proceeding; there are no confidential sources or investigative techniques to protect; there is no possibility of denying someone a fair trial; and there is no potential jeopardy to law enforcement personnel. Even the district court acknowledged in its order that "if a [balancing] test were applied under the circumstances of this case, petitioners would undoubtedly prevail."

Accordingly, weighing the absence of any privacy or law enforcement policy justifications for nondisclosure against the general policy in favor of open government, we reverse the district court's denial of appellants' petition and remand with instructions to issue a writ of mandamus ordering respondents to release to appellants the entire police investigative report.

Steffen, J., dissenting:

Respectfully, I ...

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