This past week the Reno Gazette-Journal obtained a unanimous Nevada Supreme Court ruling in its favor. The paper had sued the Public Employees’ Retirement System of Nevada (PERS) under the public records law, seeking the names of all 47,000 individuals who are collecting pensions, the names of their government employers, their salaries, their hire and retirement dates, and the amounts of their pension payments.
The court opinion, written by Justice Ron Parraguirre, noted that a lower court had granted the newspaper’s petition for a writ of mandamus and ordered PERS to produce a report for the newspaper containing the requested information while excluding home addresses and Social Security numbers.
Parraguirre wrote that the “court begins its analysis of claims of confidentiality under the Act with a presumption in favor of disclosure. … The state entity bears the burden of overcoming this presumption of openness by proving by a preponderance of the evidence that the requested records are confidential.”
The court found the requested information is indeed a public record and the lower court was correct in “ordering PERS to provide the requested information to the extent that it is maintained in a medium separate from individuals’ files.”
But there’s the rub.
An attorney for PERS said during oral arguments before the court that the data on retirees is kept only in individual files, which are confidential by state law.
The court opinion vacated the part of the lower court ruling that required PERS to create a customized report for the newspaper.
The Reno paper and the public in general has a right to know who the pensioners are and how much they are being paid, but has no means of accessing that information.
The headline in the Reno newspaper read: “Nevada court says PERS records are public.”
The headline in the Carson City newspaper read: “PERS files are confidential, court rules.”
They are both right.
The public records are commingled with private records and PERS doesn’t have to winnow the chaff from the wheat.
Back in 2009 a Clark County judge faced a similar problem. Karen Gray, an education researcher and reporter at Nevada Policy Research Institute, had sued the school district seeking emails written by school trustees.
The district claimed the emails contained confidential information and wanted to charge more than $4,000 for the labor to scrub the emails.
The judge ruled that it was not Ms. Gray’s “burden to bear the expense to determine what public records she seeks may be confidential. Once she makes a request for public records, it is the governmental entity’s burden to produce the record or explain why it is not furnished. In short, if CCSD believes certain e-mails generated by its school trustees contain confidential information, it is the one who should bear the expense of review and redaction, if any, as well as provide Ms. Gray an explanation as to why the public record will not be produced.”
In other words, public bodies cannot use the fact that public and confidential material might be commingled in their files to deny access by charging the public for doing their job of separating the two.
The Supreme Court doesn’t see it that way.
The court said the information is public record. PERS should run a customized search of its records and produce the requested information. That would be inexpensive to do and better serve the public’s understanding of what public pensions are costing taxpayers.
Having a right to something, without means of exercising that right, is a farce.