CIVIL RIGHTS FOR SENIORS, A Nevada Nonprofit Corporation, Appellant,
ADMINISTRATIVE OFFICE OF the COURTS, Respondent.
Philip A. Olsen, Tahoe City, California, for Appellant.
Allison, MacKenzie, Pavlakis, Wright & Fagan, Ltd., and Alicia G. Johnson, Carson City, for Respondent.
BEFORE THE COURT EN BANC.
This appeal presents novel issues regarding the scope of public access to certain records maintained by the Administrative Office of the Courts (AOC) and whether the AOC is a " [g]overnmental entity" within the meaning of NRS 239.005(5).
Appellant Civil Rights for Seniors (CRS) filed a request with the AOC pursuant to Nevada's Public Records Act (the Act), seeking access to a variety of documents related to Nevada's Foreclosure Mediation Program (FMP). The AOC offered to provide some of the documents in redacted or statistical form but refused to disclose other information as either confidential or privileged. CRS filed a petition for a writ of mandamus in district court to compel the AOC to produce all of the requested documents in their original form. The district court denied CRS's petition, reasoning that the AOC, as a judicial entity, is not subject to the Act and that the requested documents are otherwise confidential as a matter of law.
On review, we conclude that the district court properly rejected access to the requested information based on the confidentiality provisions set forth in the rules of this court. Accordingly, we affirm the district court's order.
FACTS AND PROCEDURAL HISTORY
Beginning in 2009, the Foreclosure Mediation Program has provided Nevada homeowners the opportunity to attend loan-modification mediation with the beneficiary of the deed of trust or a qualified representative before a nonjudicial foreclosure sale can occur. Holt v. Reg'l Tr. Servs. Corp., 127 Nev. ----, ----, 266 P.3d 602, 603 (2011). When a homeowner elects mediation, the homeowner and the beneficiary of the deed of trust must participate in mediation in good faith and produce certain documents and information. See Pasillas v. HSBC Bank USA, 127 Nev.----,----, 255 P.3d 1281, 1286-87 (2011). After mediation has concluded, the mediator issues a statement that may recommend sanctions and must include any agreement reached by the parties. FMR 17. If either party fails to comply with the statutory requirements, the other party can request judicial review to determine whether sanctions are warranted for bad faith. See Holt, 127 Nev. at __, 266 P.3d at 606. Ultimately, the beneficiary must obtain an FMP mediation certificate to exercise a valid nonjudicial foreclosure sale under NRS 107.080. NRS 107.086(2)(c) (a " trustee shall not exercise a power of sale ... unless the trustee ... [c]lauses to be recorded [an FMP certificate
stating either] that no mediation is required [or that] mediation has been completed in the matter" ).
Under authority delegated by the Legislature, NRS 107.086(8), this court appointed the AOC as Mediation Administrator, which is charged with the general duties for administering foreclosure mediations. FMR 2(1). As Administrator, the AOC may appoint a manager and support staff and may enter into contracts with third parties for mediation-related services. FMR 2(2). The AOC maintains a list of court-approved available mediators and selects mediators for assignment. FMR 3(2), (3).
In 2011 and 2012, CRS twice sought access to information contained in FMP records maintained by the AOC in its capacity as Mediation Administrator. CRS sought copies of all mediator statements and FMP certificates issued since July 2009, as well as copies of all mediator assignments, all correspondence between AOC employees, any recommendations of sanctions, the minutes of various meetings conducted by the AOC or the Supreme Court, law firm billings, legal agreements, and all written comments received by the AOC from FMP participants. The AOC denied many of CRS's requests, contending that the requested documents were either confidential pursuant to Nevada's Foreclosure Mediation Rules or subject to the attorney-client or government deliberative process privileges. In doing so, the AOC offered to provide many records in statistical or redacted form so that CRS could receive the benefit of the information without ...