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Comstock Residents Association v. Lyon County Board of Commissioners

Supreme Court of Nevada, En Banc

March 29, 2018

COMSTOCK RESIDENTS ASSOCIATION; AND JOE MCCARTHY, Appellants,
v.
LYON COUNTY BOARD OF COMMISSIONERS, Respondent.

          Appeal from a district court order denying a petition for a writ of mandamus concerning disclosures under a public records request. Third Judicial District Court, Lyon County; Steven R. Kosach, Senior Judge.

          John L. Marshall, Reno; Luke A. Busby, Reno, for Appellants.

          Stephen B. Rye, District Attorney, Lyon County, for Respondent.

          OPINION

          CHERRY, J.

         In this appeal, we consider a district court's denial of a petition for a writ of mandamus to compel disclosure of records where members of the Lyon County Board of Commissioners conducted county business on private cellphones and email accounts. We conclude that the grounds on which the district court denied the records requests were erroneous and remand this case to the district court to determine whether the requested records concern "the provision of a public service, " as defined in Las Vegas Metropolitan Police Department v. Blackjack Bonding, Inc., 131 Nev. 80, 86, 343 P.3d 608, 613 (2015), and this opinion, and are within the control of the county or its commissioners.

         FACTS AND PROCEDURAL HISTORY

         In 2013, the Lyon County Board of Commissioners received an application to alter the zoning within Lyon County to allow for industrial development. The Board received reports from the county's planning staff and held public hearings, after which they voted to recommend denying the proposed zoning change. At a subsequent meeting of the county commissioners, the issue was reintroduced and the zoning change approved. Appellant, the Comstock Residents Association (CRA), brought suit against the Board, challenging the approval of the zoning change.

         As part of that suit, CRA made a public records request of Lyon County and its commissioners, seeking communications concerning the approval of the zoning change, regardless of whether they occurred on public or private devices. Lyon County provided phone records, emails, and other records that were created or maintained on county equipment and some public records created on private devices as well. However, Lyon County also notified CRA that it did not provide or pay for phones or email accounts to any commissioners. The county's website listed the commissioners' personal phone numbers and email addresses as their contact information. The county concedes that these private telephones and email addresses were used to conduct county business.

         CRA subsequently filed a petition for a writ of mandamus to compel the county to disclose all public records of the commissioners' communications regarding the change to the county's zoning plan, including those communications contained on the commissioners' private cell phones and email accounts. The district court denied CRA's petition, reasoning that the records were not (1) open to public inspection, (2) within the control of the county, and (3) records of official actions of the county or paid for with public money. CRA subsequently appealed to this court.

         DISCUSSION

         Standard of review

         This court reviews the denial of a writ petition for abuse of discretion, but reviews questions of statutory interpretation de novo. Blackjack, 131 Nev. at 85, 343 P.3d at 612.

         Communications on private devices or servers are not categorically exempt from the Nevada Public Records Act

         Under the Nevada Public Records Act (NPRA), codified in NRS Chapter 239, all public books and public records of a governmental entity must be open to public inspection unless declared by law to be confidential. NRS 239.010(1). A governmental entity includes elected or appointed officers of this state's political subdivisions. NRS 239.005(5)(a). The NPRA is intended to "foster democratic principles by providing members of the public with access to inspect and copy public . . . records to the extent permitted by law, " and this court will construe the Act's provisions liberally to achieve this purpose. NRS 239.001(1), (2). It is in the interest of transparency that the NPRA facilitates "public access to information regarding government activities." PERS v. Reno Newspapers, Inc., 129 Nev. 833, 836-37, 313 P.3d 221, 223 (2013). To achieve the important democratic principles served by the NPRA, we begin from a presumption that public records must be disclosed to the public. Id. at 837, 313 P.3d at 223-24. The burden is then on the governmental entity to show by a preponderance of the evidence that the records sought are either confidential by statutory provision, or the balance of interests weighs clearly in favor of the government not disclosing the requested records. Id. at 837, 313 P.3d at 224. Even in the instance that an exemption on disclosure is applicable or the balance of ...


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