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Nevada Public Records Act Requires State to Provide Log of Basic Information About Withheld Information

In a unanimous opinion, the Nevada Supreme Court has held that, as a general matter, the state's Public Records Act (PRA) requires a state entity withholding requested records to provide the requesting party with a log containing a factual description of each withheld record and a legal basis for nondisclosure, at least after the commencement of a public records lawsuit. By contrast, in pre-litigation situations, a log is not required; however, the requesting party must still be provided with notice of claimed confidentiality, as well as citation to legal authority that justifies nondisclosure.

Absent a log, the Court held, a requesting party would be unable to meaningfully contest nondisclosure. This would run contrary to the spirit of the PRA, which presumes that government-generated records are open to disclosure, and "seriously distort[]" the nature of the adversarial system.

In 2008, the Reno Gazette-Journal (RGJ) made a records request for e-mail communications sent over a 6-month period between former Nevada Governor Jim Gibbons and ten other individuals, via the Governor's state-issued e-mail account. The State denied the request, claiming that the records were confidential, and refused to provide RGJ with a log that would permit it to assess whether to challenge the State's classification of the e-mails as confidential.

RGJ then filed a petition for a writ of mandamus. After conducting an in camera review, the district court determined that all but six of the 104 requested e-mails were confidential or otherwise privileged. It denied RGJ's request for a log or index, reasoning that such a log or index would likely result in the release of confidential information.

On appeal, the Supreme Court reversed. Addressing the issue of confidentiality, the Court held that while the log of withheld records need not be so detailed that it compromises the secrecy of withheld information, it should still contain as much information as possible before resort is made to an in camera review. It stressed, however, that in and of itself an in camera review was not sufficient in situations (such as the one before it) when a log is necessary to preserve a fair adversarial proceeding. See: Reno Newspapers, Inc. v. Gibbons, 266 P.3d 623 (Nev. 2011).

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Related legal case

Reno Newspapers, Inc. v. Gibbons