134 Nev., Advance Opinion 84
IN THE SUPREME COURT OF THE STATE OF NEVADA
CLARK COUNTY SCHOOL DISTRICT, No. 73525
Appellant,
vs.
PLED
LAS VEGAS REVIEW-JOURNAL, OCT 2 5 2018
Respondent. LiThr01 A. BROWN
2PREVE.COUF
ritc
Appeal from a final order granting a petition for writ of
mandamus concerning a public records request. Eighth Judicial District
Court, Clark County; Timothy C. Williams, Judge.
Affirmed in part, reversed in part, and remanded.
Clark County School District, Office of General Counsel, and Adam D.
Honey and Carlos L. McDade, Clark County,
for Appellant.
McLetchie Shell LLC and Margaret A. McLetchie and Alina M. Shell, Las
Vegas,
for Respondent.
BEFORE THE COURT EN BANC.
OPINION
By the Court, GIBBONS, J.:
This appeal centers on Clark County School District (CCSD)
employee complaints alleging inappropriate behavior, including sexual
harassment, by an elected trustee. After the Office of Diversity and
Affirmative Action (ODAA) conducted an investigation into the trustee's
behavior, CCSD instituted the ODAA's recommended policies and restricted
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the trustee's access to employees and campuses. Respondent Las Vegas
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Review-Journal (Review-Journal) began running stories detailing the
investigation and the complaints. The Review-Journal made a related
records request to which CCSD continually delayed its response.
Eventually, the Review-Journal filed a petition, and then an amended
petition, for a writ of mandamus under the Nevada Public Records Act,
requesting that the district court compel disclosure. The district court
granted the first petition and then asserted jurisdiction over the amended
petition as well. After holding a hearing on the amended petition and
viewing the withheld documents in-camera, the district court filed an order
granting the Review-Journal's amended writ petition and ordered
disclosure, allowing for limited redaction. CCSD argues that the district
court erred by ordering disclosure of CCSD's investigative materials and,
alternatively, directing CCSD to provide minimally redacted investigative
materials to the Review-Journal. We hold that the district court did not err
by ordering disclosure of the records, but adopt a two-part, burden shifting
test to determine the scope of redaction of names of persons identified in an
investigative report with nontrivial privacy claims, and remand for further
proceedings.
FACTS AND PROCEDURAL HISTORY
CCSD officials met with Trustee Kevin Child in March of 2016
after allegations arose regarding his inappropriate behavior, including
allegations of sexual harassment. The behaviors included speaking to
students about suicide and other inappropriate matters, making suggestive
sexual comments and gestures towards employees, including teachers, and
engaging in disruptive, threatening, and inappropriate behavior at public
events. The ODAA subsequently launched an investigation. The resulting
ODAA recommendation states that Child's behavior resulted in what could
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be considered a hostile work environment under Title VII. The
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recommendation further concluded that the environment was one in which
Child's behavior goes unchecked. This is largely because most employees
are unwilling to confront him about his behavior and/or are reluctant to file
a formal complaint against him because he is perceived to be "The Boss."
Based on these findings, the ODAA recommended severely limiting Trustee
Child's access to district properties and employees. CCSD acted on these
recommendations on December 5, 2016, implementing strict guidelines for
future visits by Trustee Child and distributing those guidelines throughout
CCSD via email.
That same day, a Review-Journal reporter made an initial
document request. CCSD responded that it had received and was
processing the request. A few days later, CCSD responded that it could not
get the information requested within five days, as required by NRS
239.0107 of the Nevada Public Records Act (NPFtA); however, it would
hopefully have the information by December 16, 2016. CCSD then changed
that date to January 9, 2017, and then to January 13, 2017. On
January 26, 2017, the Review-Journal filed its first petition for writ relief
asking the district court to compel CCSD to produce the requested records.
CCSD eventually provided some records to the Review-Journal and, on
February 9, 2017, the Review-Journal featured one of many articles on
Trustee Child.
On February 10, 2017, the Review-Journal made an expanded,
amended records request pursuant to NRS 239.010 of the NPRA, based on
information learned from the first batch of disclosed records. The district
court held a hearing on the writ petition for the initial records request on
February 14, 2017. There, counsel for the Review-Journal stated that
CCSD had finally provided some records; nevertheless, the issue before the
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court now was "the scope of redactions." Counsel for the Review-Journal
argued that, although it recognized the names of victims and people that
have come forward should be protected, CCSD went too far. CCSD had
redacted the names of the administrators, principals, and supervisors
addressing those complaints, and the names of schools. The district court
granted the Review-Journal's first writ petition and ordered that "any
names of students or support staff. . . be redacted and any direct victims
alleging sexual harassment." The district court also set a status check for
the second records request. The first order was filed February 22, 2017.
On February 17, 2017, CCSD sent a response to the Review-
Journal regarding the amended February records request, where it asserted
the same privileges addressed in the prior writ hearing In mid-March,
CCSD provided the Review-Journal with a more extensive account of the
types of document searches it was doing, the privileges they were asserting,
and a more particularized privilege log. CCSD provided approximately 100
pages of documents between February 3, 2017, and March 3, 2017, in
response to the records requests. Most of the documents contained
employee complaints about Trustee Child.
On May 9, 2017, the parties appeared before the district court
for a hearing on the amended request. During the hearing, counsel for
CCSD and the district court discussed "what further democratic principle is
furthered" by the Review-Journal's request for all the documents leading
up to the ODAA recommendation. CCSD argued that it had already
provided the Review-Journal with the policy and recommendation, as well
as many emails outlining the complaints against Child. Thus, it had
complied with the principles encouraging disclosure. The district court
recognized the important interest in preserving victims' privacy. The
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district court also reasoned that the overriding policy interest to be weighed
was the fact that this matter involves the public actions of an elected
official—a trustee—and CCSD's response to that elected official's actions.
The district court then ordered CCSD to provide the court with a full
privilege log of all responsive documents and an in-camera review of all the
withheld records. On July 11, 2017, after reviewing the withheld
documents in-camera and CCSD's submitted privilege log, the district court
entered an order granting the writ of mandamus regarding the withheld
records. That order is the subject of this appeal. CCSD specifically takes
issue with disclosing documents that were part of the investigation leading
up to the recommendation made by the ODAA. CCSD argues these
documents are confidential by law, should be confidential on balance, or
alternatively that additional redactions are necessary.
DISCUSSION
NRS 239.010, the NPRA, provides "unless otherwise declared
by law to be confidential, all public books and public records of a
governmental entity must be open at all times during office hours to
inspection by any person." Accordingly, the first relevant inquiry is whether
CCSD's withheld documents are confidential by law. City of Reno v. Reno
Gazette-Journal, 119 Nev. 55, 60, 63 P.3d 1147, 1149-50 (2003). "The
Legislature has declared that the purpose of the NPRA is to further the
democratic ideal of an accountable government by ensuring that public
records are broadly accessible." Reno Newspapers, Inc. v. Gibbons, 127 Nev.
873, 877-78, 266 P.3d 623, 626 (2011). In 2007, "the Legislature amended
the NPRA to provide that its provisions must be liberally construed to
maximize the public's right of access." Id. at 878, 266 P.3d at 626 (citing
NRS 239.001 (2007)). Moreover, the Legislature ensured that a state entity
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that wishes to "withhold records, bears the burden of proving, by a
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preponderance of the evidence, that the records are confidential by law." Id.
(citing NRS 239.0113). "[I]n the absence of a statutory provision that
explicitly declares a record to be confidential, any limitations on disclosure
must be based upon a broad balancing of the interests involved." Id. at 880,
266 P.3d at 628 (emphasis added) (citations omitted). Further, "the state
entity bears the burden to prove that its interest in nondisclosure clearly
outweighs the public's interest in access." Id.
CCSD contends that by ordering disclosure of CCSD's
investigative materials, the district court: (1) erred under the Nevada
Public Records Act by stripping CCSD employees of the rights afforded
them by other confidentiality laws, both federal and administrative; and
(2) erred in limiting CCSD's ability to redact. More specifically, CCSD
argues that this court should reverse the district court order under:
(a) federal law and federal guidelines;' (b) CCSD regulations; (c) the
deliberative process privilege; (d) the Nevada Administrative Code (NAC); 2
and (e) the common law balancing test set forth in Donrey of Nevada, Inc.
v. Bradshaw, 106 Nev. 630, 635, 798 P.2d 144, 147 (1990).
1 CCSD has failed to prove, by a preponderance of evidence, why its
investigative materials are confidential under federal law. However,
CCSD's arguments regarding federal law are relevant to the balancing of
interests discussed in the body of this opinion.
2 CCSD argues that some of the investigative materials are "nonrecord
materials" under NAC 239.051. However, in Comstock Residents
Association v. Lyon County Board of Commissioners, we held that the NAG,
specifically NAG 239.051, does not limit the scope of the NPRA. 134 Nev.,
Adv. Op. 19, 414 P.3d 318,322 n.1 (2018) (holding that NAG 239.091 and
NAG 239.051 constitute "administrative regulations pertaining to local
records management programs, and do not determine the overall scope of
the NPRA . . . ."). Accordingly, this argument is without merit.
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A district court's grant or denial of a petition for a writ of
mandamus seeking access to public records is generally reviewed for abuse
of discretion. Gibbons, 127 Nev. at 877, 266 P.3d at 626. However, where
"the petition entails questions of law, [this court] review [s] the district
court's decision de novo." Id. "[Q]uestions of statutory construction,
including the meaning and scope of a statute, are questions of law." Reno
Gazette-Journal, 119 Nev. at 58, 63 P.3d at 1148. CCSD raises a number of
arguments as to why the district court should not have ordered disclosure
of its investigative materials Insofar as CCSD's arguments center around
which guidelines, regulations, and administrative codes may declare certain
records to be confidential by law, we review this matter de novo. See id.
The withheld documents are not confidential by law
CCSD argues that its regulations are laws with legal effect
under NRS 386.350 and, under those regulations, the documents that the
district court ordered it to disclose are confidential by law. See NRS 386.350
("Each board of trustees is hereby given such reasonable and necessary
powers, not conflicting with the Constitution and the laws of the State of
Nevada. . . ."). However, we have already indicated that such internal
regulations do not limit the NPRA. Quite recently, in Comstock Residents
Association u. Lyon County Board of Commissioners, 134 Nev., Adv. Op. 19,
414 P.3d 318, 322 (2018), we held that the NAC "do[es] not limit the reach
of the NPRA, but merely establish[es] regulations for good records
management practices of those local programs" Further, we emphasized
that, "[t]he best practices for local government record management and
what constitutes a public record for purposes of the NPRA are distinct, and
we are careful not to conflate them here." Id. Under the rationale set forth
in Comstock Residents Association, CCSD's regulations do not limit the
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scope of the NPRA. Rather, the regulations merely establish good records
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management practices for CCSD. Ascribing a force to such regulations that
limits the NPRA would create an opportunity for government organizations
to make an end-run around the NPRA by drafting internal regulations that
render documents confidential by law. While the regulations undoubtedly
play an essential role in CCSD's internal operations for sensitive
harassment issues, we hold that they do not render the withheld documents
confidential by law under the NPRA.
The district court did not abuse its discretion when, after balancing the
interests, it determined that the documents should not be withheld
" [I] n the absence of a statutory provision that explicitly declares
a record to be confidential, any limitations on disclosure must be based upon
a broad balancing of the interests involved, and the state entity bears the
burden to prove that its interest in nondisclosure clearly outweighs the
public's interest in access." Gibbons, 127 Nev. at 880, 266 P.3d at 628
(emphasis added) (citations omitted). As CCSD's remaining arguments
regarding confidentiality implicate this balancing test, we review this
portion of the order for an abuse of discretion. Id. at 877, 266 P.3d at 626;
DR Partners v. Bd. of Cty. Comm'rs of Clark Cty., 116 Nev. 616, 621, 6 P.3d
465, 468 (2000) ("Unless a statute provides an absolute privilege against
disclosure, the burden of establishing the application of a privilege based
upon confidentiality can only be satisfied pursuant to a balancing of
interests . . . .").
Deliberative process privilege
CCSD argues that it is not required to disclose the withheld
documents because the documents fall within the protections afforded
under the deliberative process privilege. See DR Partners, 116 Nev. at 622,
6 P.3d at 469 ("The deliberative process or 'executive' privilege is one of the
traditional mechanisms that provide protection to the deliberative and
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decision-making processes of the executive branch of government."). "It is
well settled that privileges, whether creatures of statute or the common law,
should be interpreted and applied narrowly." Id. at 621, 6 P.3d at 468.
Under the privilege, governmental entities may conceal public records only
if the entity can prove that the relevant public records were part of a
predecisional and deliberative process that led to a specific decision or
policy. Id. at 623, 6 P.3d•at 469. The agency bears the burden of
establishing, with particularity, "the character of the decision, the
deliberative process involved, and the role played by the documents in the
course of that process." Id. at 623, 6 P.3d at 470 (internal quotation marks
and citation omitted).
CCSD argues that the withheld documents, which include the
investigative file leading up to the ODAA's recommendation, are subject to
the deliberative process privilege. However, the central purpose of the
privilege is "protecting the decision making processes of government
agencies." N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975)
(internal quotation marks and citation omitted). Thus, the deliberative
process privilege does not apply in situations where the government's
actions are in question, particularly where the records may reveal a
potential Title VII violation. E.g., Anderson v. Marion Cty. Sheriffs Dep't,
220 F.R.D. 555, 560 (S.D. Ind. 2004) ("If the plaintiffs cause of action is
directed at the government's intent, however, it makes no sense to permit
the government to use the privilege as a shield. For instance, it seems
rather obvious to us that the privilege has no place in a Title VII action or
in a constitutional claim for discrimination.") (quoting In re Subpoena Duces
Tecum Served on the Office of the Comptroller of the Currency, 145 F.3d
1422, 1424 (D.C. Cir. 1998)). "Moreover, the privilege 'should be invoked
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only in the context of communications designed to directly contribute to the
formulation of important public policy?" Id. at 560-61 (emphasis in original)
(quoting Soto v. City of Concord, 162 F.R.D. 603, 612 (N.D. Cal. 1995)). "To
extend the deliberative process privilege to a recommendation as to a
particular personnel matter extends it beyond its present form to protect
from disclosure what would otherwise be evidence relevant to plaintiffs
complaint of discrimination." Id. at 561 (quoting Waters v. U.S. Capitol
Police Bd., 216 F.R.D. 153, 163 (D.D.C. 2003)).
Here, while one issue from the Child matter involves Child's
behavior, an additional issue involves how CCSD handled the
discrimination complaints and the investigation. To allow CCSD to invoke
the deliberative process privilege to prevent disclosure of the investigative
materials leading up to the ODAA decision would allow CCSD to shield
itself from the Review-Journal's inquiry into how CCSD conducted that
investigation. Allowing both disclosure, as well as redaction of victims'
names, serves the competing purposes of Title VII. Doing so protects the
confidentiality of the victims, while allowing inquiry into CCSD's response.
Moreover, while Trustee Child is not technically an employee of CCSD, the
policy imposes rules and restrictions on how other employees within the
district interact with the trustee. Finally, Trustee Child's behavior, and
CCSD's investigation into it, are not part of a deliberative process because
there is no decision or policy CCSD is making that would invoke this
privilege to begin with. Thus, the policy set forth by CCSD is not an
"important public policy" but merely a "particular personnel matter" limited
to a single individual under specific and isolated facts. Id. at 560-61.
Accordingly, we hold CCSD has failed to meet its burden to demonstrate
why the deliberative process privilege applies and, therefore, the district
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court did not abuse its discretion by refusing to apply the privilege to this
matter.
Common law balancing test
CCSD has failed to demonstrate that the documents are
confidential as a matter of law or fall within the deliberative process
privilege. We must now determine whether the balancing test, as set forth
in Gibbons, warrants nondisclosure. A government entity cannot meet its
burden for preventing disclosure by "voicing non-particularized
hypothetical concerns." DR Partners, 116 Nev. at 628, 6 P.3d at 472-73.
CCSD contends, and presents some evidence, that employees
have expressed fear of being identified or retaliated against by Trustee
Child. The Review-Journal counters that there is a great public interest in
transparency here, particularly in light of the unique facts of this case,
where the allegations pertain to a trustee accountable only to the voters,
rather than CCSD management. In fact, as the Review-Journal points out,
CCSD's purpose, to protect employees, is best served by transparency and
any privacy interests can be satisfied by redaction. On balance, the Review-
Journal's argument is more persuasive and, while CCSD does give some
evidence of individuals' fears of retaliation, it fails to demonstrate why
complete nondisclosure, rather than redaction, is the better solution.
Accordingly, we hold that CCSD's argument here is unpersuasive and the
district court did not abuse its discretion by refusing to permit CCSD to
withhold the documents in their entirety. That part of the district court's
order requiring CCSD to disclose the documents is affirmed.
Privacy interests and redaction in public record disclosure
CCSD argues that the district court should have allowed it to
redact more information. In essence, CCSD's request to redact spans from
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withholding everything, because all facts are witness identifiers, to merely
withholding names of all complainants and teacher witnesses.
The district court order reads:
Pursuant to the Court's February 23, 2017 Order, 131
CCSD may redact the names of direct victims of
sexual harassment or alleged sexual harassment,
students, and support staff. The Court will then
provide the documents to the Review-Journal.
Further, the district court indicated that CCSD had not "proven by a
preponderance of the evidence that any interest in nondisclosure outweighs
the strong presumption in favor of public access." The district court, quoting
Deseret News Publishing Co. v. Salt Lake County, 182 P.3d 372, 383 (Utah
2008), then listed additional interests weighing against redaction.
In part, CCSD appears to be asking that this court adopt a test
similar to that used in the district court's cited case, Deseret News
Publishing Co., 182 P.3d at 380; see also Cameranesi v. U.S. Dep't of Defense,
856 F.3d 626, 637 (9th Cir. 2017). Nevada has not previously adopted a test
that shifts the burden of proof onto the party seeking disclosure to show the
interest in the information sought. We are inclined to do so now in cases in
which the nontrivial personal privacy interest of a person named in an
investigative report may warrant redaction.
The Cameranesi test is a two-part balancing test. It first
requires the government to establish a "personal privacy interest stake to
3 The referenced February order reads:
CCSD may not make any other redactions, and
must unredact the names of schools, all
administrative-level employees, including but not
limited to deans, principals, assistant principals,
program coordinatorsllsid, and teachers.
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ensure that disclosure implicates a personal privacy interest that is
nontrivial or. . . more than [I de minimis." Cameranesi, 856 F.3d at 637.
"Second, if the agency succeeds in showing that the privacy interest at stake
is nontrivial, the requester 'must show that the public interest sought to be
advanced is a significant one and that the information [sought] is likely to
advance that interest." Id.
While Cameranesi (and Deseret News, 182 P.3d at 380-82)
interpreted a statute providing an exception to disclosure of public records,
856 F.3d at 637-38, Nevada's common law provides a similar exception.
Nevada's common law recognizes the tort of invasion of privacy for
unreasonable intrusion upon the seclusion of another. PETA v. Bobby
Berosini, Ltd., 111 Nev. 615, 629-36, 895 P.2d 1269, 1279-83 (1995),
overruled on other grounds by City of Las Vegas Downtown Redev. Agency
v. Hecht, 113 Nev. 644, 650, 940 P.2d 134, 138 (1997). The purpose of the
tort is to provide redress for intrusion into a person's reasonable expectation
of privacy, seclusion, or solitude. Id. The Legislature has also recognized
privacy interests in a laundry list of areas, NRS 239.010(1), including NRS
Chapter 603A, defining personal information (names, social security
numbers, etc.) in NRS 603A.040 that must be protected against disclosure
under NRS 603A.210. The list in NRS 239.010(1) also includes
confidentiality provisions in NRS 200.3771 and NRS 200.3772,
confidentiality for victims of sexual offenses. On that topic, the Legislature
declared, "The public has no overriding need to know the individual identity
of the victim of a sexual offense. . . ." NRS 200.337(5). Given Nevada's
established protection of personal privacy interests, we hold that Nevada's
common law protects personal privacy interests from unrestrained
disclosure under the NPRA, and we adopt the test in Cameranesi, 856 F.3d
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at 637, to balance the public's right to information against nontrivial
personal privacy interests. This approach is a logical extension of Donrey
of Nevada, Inc. v. Bradshaw, 106 Nev. 630, 635, 798 P.2d 144, 147 (1990).
In Donrey, this court implicitly recognized that unless a statute expressly
creates an absolute privilege against public disclosure, limitations on
disclosure must be based upon balancing interests of nondisclosure against
the general policy of open government. 106 Nev. at 634-36, 798 P.2d at 146-
47. The Cameranesi balancing test facilitates a court's balancing of
nontrivial privacy interests against public disclosure. See Cameranesi, 856
F.3d at 637. For example, in this case, this test balances the nontrivial
privacy interests of teachers having their names publicly disclosed with
bringing attention to an issue with an elected public official within a public
school district. Thus, we believe the Cameranesi test provides a better way
to determine if a government entity should redact information in a public
records request.
This test coheres with both NRS 239.0113 and Gibbons, 127
Nev. at 877-78, 266 P.3d at 625-26. It is merely a balancing test—in the
context of a government investigation—of individual nontrivial privacy
rights against the public's right to access public information. Carlson v.
U.S. Postal Serv., 2017 WL 3581136, at *28 (N.D. Cal. Aug. 18, 2017). We
explained in Gibbons that NRS 239.0113 requires that the state bear the
burden of proving that records are confidential. Gibbons, 127 Nev. at 878,
266 P.3d at 626. The Cameranesi test does that, but also gives the district
courts a framework to weigh the public's interest in disclosure, by shifting
the burden onto the public record petitioner, once the government has met
its burden. This ensures that the district courts are adequately weighing
the competing interests of privacy and government accountability.
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CONCLUSION
Here, the district court only ordered that the names of direct
victims of sexual harassment or alleged sexual harassment, students, and
support staff may be redacted. Problematically, this list excludes teachers
or witnesses who may face stigma or backlash for coming forward or being
part of the investigation. The privacy interest of these persons should be
considered before disclosure of their names or other information that would
identify them. Accordingly, we reverse the redaction order of the district
court and remand for further proceedings consistent with this opinion.
Gibbons
We concur:
Pickering
da--t-tA J.
Hardesty
C(AAct.- 96-1---
Parraguirre
"ektbatii
Stiglich
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