Pub. Employees' Ret. Sys. of Nev. v. Nev. Policy Research Inst., Inc.
Pub. Employees' Ret. Sys. of Nev. v. Nev. Policy Research Inst., Inc.
Opinion of the Court
In this appeal, we consider whether the Nevada Public Records Act (the Act) requires the Public Employees' Retirement System of Nevada (PERS) to disclose certain employment and pension payment information about its government retirees held in its computer database when sought through a public records request. We hold that where the requested information merely requires searching a database for existing information, is readily accessible and not confidential, and the alleged risks posed by disclosure do not outweigh the benefits of the public's interest in access to the records, the Act mandates that PERS disclose the information. Because PERS represents that the computer database may no longer be able to produce the information as it existed when the public records request was made, we remand for the district court to determine an appropriate way for PERS to comply with the request.
FACTS AND PROCEDURAL HISTORY
Respondent Nevada Policy Research Institute, Inc. (NPRI) submitted a public records request to appellant PERS seeking payment records of its government retirees, including retiree names, for the year 2014. NPRI sought to post this information on their TransparentNevada.com website for the public to view. Despite having previously disclosed the requested information to NPRI for the year 2013, PERS refused to disclose the requested information for the following year. PERS argued that the raw data feed that an independent actuary uses to analyze and value the retirement system did not contain the names of its government retirees, only redacted social security numbers, and it had no duty to create a new document in order to satisfy NPRI's request. NPRI alternatively requested any other records that would contain the following information for the year 2014: retiree name, years of service credit, gross pension benefit amount, year of retirement, and last employer. PERS still refused to disclose the requested information by denying the availability of any such record.
NPRI filed a petition for a writ of mandamus in district court seeking retiree name, payroll amount, date of retirement, years of service, last employer, retirement type, original retirement amount, and COLA increases. NPRI asserted that the requested information is not confidential because it is a public record and is easily accessible through an electronic search of the PERS database. Following an evidentiary hearing, the district court concluded that the requested information was not confidential, that the risks posed by disclosure did not outweigh the benefits of the public's interest in access to these records, and that PERS had a duty to create a document with the requested information. Thus, the district court granted NPRI's petition and ordered disclosure. However, the district court ordered PERS to produce only retiree name, years of service credit, gross pension benefit amount, year of retirement, and last employer.
DISCUSSION
PERS argues that the district court erred by requiring disclosure because the information was confidential, and the risks posed by disclosure outweigh the benefits of the public's interest in access to the records. It also argues that the district court's decision goes against this court's holding in Public Employees' Retirement System of Nevada v. Reno Newspapers Inc. , (Reno Newspapers ),
Conversely, NPRI argues that the information requested constitutes a public record under the Act because it is information that is stored on a governmental computer and that under Blackjack Bonding , PERS is required to disclose the information because the records are readily accessible and PERS has previously disclosed the information sought.
Standard of review
This court generally reviews a district court's decision to grant a writ petition for an abuse of discretion, but when the writ petition raises questions of statutory interpretation, this court reviews the district court's decision de novo. City of Reno v. Reno Gazette-Journal,
The Nevada Public Records Act
The Nevada Legislature enacted the Nevada Public Records Act to "foster democratic principles," NRS 239.001, and "promote government transparency and accountability by facilitating public access to information regarding government activities." Reno Newspapers,
We are cognizant of these important goals and, thus, have held that the Act's "provisions must be liberally construed to maximize the public's right of access," and "any limitations or restrictions on [that] access must be narrowly construed." Reno Newspapers, Inc. v. Gibbons (Gibbons),
The requested information was not declared confidential by statute
PERS argues that the district court's order would erroneously require PERS to extract information from government retirees' individual files that are protected by NRS 286.110(3) and NRS 286.117. According to PERS, these statutes would be rendered meaningless if the information contained in government retirees' files could be subject to disclosure. Because individual files of government retirees are confidential, PERS argues, so too should custom reports that are generated exclusively from these files.
As noted above, under the Act, public books and records of government entities are open to the public for inspection, "[e]xcept as otherwise provided" by statute or "otherwise declared by law to be confidential." NRS 239.010(1). In addition, official state records include "[i]nformation stored on magnetic *284tape or computer," NRS 239.005(6)(b). Among the statutes listed as providing a potential exception is NRS 286.110(3), which specifies that "[t]he official correspondence and records, other than the files of individual members or retired employees, and ... the minutes, audio recordings, transcripts and books of [PERS] are public records and are available for public inspection." (Emphasis added.)
This court has previously addressed the scope of NRS 286.110(3). See Reno Newspapers,
In Reno Newspapers , PERS released the requested information to a third party for an actuarial evaluation, which made the information clearly available outside of an individual's file. See
Pointing to our discussion in Reno Newspapers of the "confidentiality" of the individual retiree files, and the fact PERS no longer generates the report ordered produced in that case, PERS maintains the information NPRI seeks does not exist outside the individual files and so is exempt from public disclosure. This reads our prior opinion and NRS 286.110(3) too broadly. While an individual retiree's physical file, which contains personal information such as social security numbers and beneficiary designations, may not be inspected in its entirety, that does not make all the information kept in that file confidential when the information is stored electronically and PERS can extract the nonconfidential information from the individual files. Indeed, PERS has failed to cite to any rule, statute, or caselaw declaring the information requested to be confidential, and it has previously disclosed the information.
There are, in addition, compelling reasons that PERS cannot evade disclosure on this premise. PERS maintains over 55,000 individual files for its government retirees in its proprietary database, the Computer Automated Retirement System of Nevada (CARSON). To allow PERS to preclude the public by law from inspecting otherwise validly requested government information, particularly information that can only be obtained by requesting it from PERS, by virtue of PERS including the information in the individual retiree files that are in an electronic database, would contravene the plain language and purpose of the Act by "functionally plac[ing] [the CARSON] records ... outside of the public records law."
We next assess PERS' alternative argument that, in the absence of a provision declaring the requested information confidential, its interest in nondisclosure clearly outweighs the public's interest in access.
The district court did not err in concluding that the risks posed by disclosure of the requested information do not clearly outweigh the benefits of the public's interest in access
PERS argues that the risks posed by disclosure of the requested information outweigh the benefits. In particular, PERS contends that disclosure of the government retirees' names creates a heightened risk of identity theft and cybercrime against the retirees and that these risks outweigh the marginal benefit to the public. PERS also argues that the district court did not take into consideration the government retirees' privacy interests. Conversely, NPRI contends that PERS' assertion that disclosure would subject its government retirees to a higher risk of fraud or cybercrime is hypothetical and speculative, and thus, the district court did not err in balancing the interests involved in favor of disclosure. We agree with NPRI's contention.
In Reno Newspapers , "PERS argue[d] that disclosure of the requested information would subject retired employees to a higher risk of identity theft and elder abuse."
*286
Here, an expert report PERS provided from a technology and security advisor concluded that the inclusion of the government retirees' names in the raw data feed would create a greater risk for identity theft, fraud, or other cybercrime if the information was publicly released. However, given the limited nature of NPRI's requests, "their concerns [are] merely hypothetical and speculative ... [and] [d]o not clearly outweigh the public's presumed right to access [the requested information]." Reno Newspapers,
This does not mean that the risk of identity theft, fraud, or other cybercrime can never outweigh the benefits of the public's interest in access. If disclosure of a government retiree's information includes more sensitive personal information, such as birth date, sex, marital status, beneficiary information, and beneficiary birth dates, the balancing test may weigh in favor of nondisclosure. The requested information here, however, is limited in scope and helps promote government transparency and accountability by allowing the public access to information that could reveal, for example, if an individual is abusing retirement benefits. Given the strong presumption in favor of disclosure, PERS fails to demonstrate that the risks posed by disclosure outweigh the important benefit of public access. Thus, the district court did not err in concluding that the alleged risks posed by disclosure do not outweigh the benefits of the public's interest in access.
Having decided that the information is not confidential, we next determine whether requiring PERS to extract the information from the CARSON database is the creation of a new record.
The requested information did not require the creation of a new record
PERS further argues that Reno Newspapers , which recognized there is no duty "to create new documents or customized reports by searching for and compiling information from individuals' files or other records,"
Although PERS correctly notes that a public agency has no duty to create a new record in response to a public records request, it improperly concludes that disclosure in the present case requires the creation of a new record simply because it would involve searching its database for information. Several courts have distinguished between public records requests that simply require an agency to search its electronic database in order to obtain the information requested from those that require the agency to compile a document or report about the information contained in the database. For example, in the context of Freedom of Information Act (FOIA) requests, a federal district court held that "[i]n responding to a FOIA request for *287'aggregate data,' ... an agency need not create a new database or [ ] reorganize its method of archiving data, but if the agency already stores records in an electronic database, searching that database does not involve the creation of a new record." Nat'l Sec. Counselors v. CIA (NSC I ) ,
sorting a pre-existing database of information to make information intelligible does not involve the creation of a new record because ... computer records found in a database rather than a file cabinet may require the application of codes or some form of programming to retrieve the information. Sorting a database by a particular data field (e.g., date, category, title) is essentially the application of codes or some form of programming, and thus does not involve creating new records or conducting research-it is just another form of searching that is within the scope of an agency's duties in responding to FOIA requests.
Other jurisdictions have employed similar logic when analyzing an agency's duty of disclosure under their respective public records laws. For example, in American Civil Liberties Union v. Arizona Department of Child Safety , the Arizona Court of Appeals held that "[s]earching an electronic database to produce existing records and data is not the same as searching an electronic database to compile information about the information it contains."
We agree with these courts and similarly hold that the Act requires a state agency to query and search its database to identify, retrieve, and produce responsive records for inspection if the agency maintains public records in an electronic database. In doing so, we clarify that the search of a database or the creation of a program to search for existing information is not the "creat[ion] [of] new documents or customized reports," as contemplated by Reno Newspapers .
Finally, PERS cannot evade disclosure on the basis that satisfying NPRI's public record request would require additional staff time and cost because PERS could charge NPRI for such an incurred fee. See NRS 239.052 (stating that "a governmental entity may charge a fee for providing a copy of a public record," and "[s]uch a fee must not exceed the actual cost to the governmental entity to provide the copy of the public record"); see also NRS 239.055(1) (stating that "if a request for a copy of a public record would require a governmental entity to make extraordinary use of its personnel or technological resources, the governmental entity may ... charge a fee not to exceed 50 cents per page for such extraordinary use," and such a fee "must be reasonable and must be based on the cost that the governmental entity actually incurs for the extraordinary use of its personnel or technological resources").
The record indicates, however, that the CARSON database is not static, and PERS may not be able to obtain the information as it existed when NPRI requested it in 2014. We, therefore, reverse the district court's order to produce a document with the requested information and remand this case to the district court to determine how PERS should satisfy NPRI's request and how the costs, if any, of producing the information at this time should be split.
CONCLUSION
We conclude that searching PERS' electronic database for existing and nonconfidential information is not the creation of a new record and therefore affirm the district court's order in this regard. But because the record demonstrates that PERS may no longer be able to obtain the requested information as it existed in 2014 by searching the CARSON database, we reverse the district court's order to produce the 2014 information and remand this matter for proceedings consistent with this opinion as to production of information.
We concur:
Cherry, J.
Gibbons, J.
Pickering, J.
Five years ago, this court held that PERS had no duty "to create new documents or customized reports by searching for and compiling information from individuals' files or other records." Pub . Emps.' Ret. Sys. of Nev. v. Reno Newspapers, Inc.,
Background
My disagreement with the majority is largely a factual one. To highlight it, I clarify *289the three categories of documents at issue in this case. First are retirees' individual files contained in the CARSON database. Those files are confidential pursuant to NRS 286.110(3).
The second category of documents is PERS' monthly payment register reports. Those reports contain both retirees' names and social security numbers. PERS provided at least one such report to NPRI after redacting the social security numbers.
The third and last category of documents are the raw data feeds that PERS produces annually for actuarial purposes. The 2013 data feed contained retirees' names and the pension amount each retiree received. We held in Reno Newspapers that PERS had to disclose that report, including the names of retirees.
The upshot is that NPRI now possesses a list of every retiree's name and a separate list of payments to anonymized retirees, but NPRI has no way of linking names to payments. Thus, NPRI cannot update its website with a list of retirees and the amount of pension each received in 2014. The district court solved NPRI's problem by ordering PERS to add retirees' names to the 2014 data feed.
I.
My first objection with the majority's decision is that it overrules Reno Newspapers . The facts of that case are nearly identical to the present one: A plaintiff requested several categories of information from PERS, including the names of all Nevada state pensioners and the amount of their pensions.
Applying Reno Newspapers to the present case is straightforward. NPRI requested a record containing pensioners' names and the amount of their pensions for the 2014 fiscal year. No such record exists. That is because, unlike the 2013 report at issue in Reno Newspapers , the 2014 raw data feed does not contain names. The only way PERS can create such a record-assuming it can create such a record
Rather than distinguishing Reno Newspapers , the majority cites cases from mostly foreign jurisdictions for the proposition that the district court's order merely requires PERS to "to search its electronic database" but does not "require the agency to compile a document or report about the information contained in the database." This distinction fails for two reasons.
First, the district court's order goes far beyond requiring PERS "to search its electronic database." Contrary to the majority's conclusory assertion, calling this a "search" does not comport with Las Vegas Metropolitan Police Department v. Blackjack Bonding, Inc. , wherein we held that "when an agency has a computer program that can readily compile the requested information, the agency is not excused from its duty to produce and disclose that information."
The cases cited by the majority do not impose such an expansive duty upon agencies. Creating a computer program is not merely "drawing information from a database." Commonwealth, Dep't of Envtl. Prot. v. Cole,
Second, even if this were a mere "search" of the CARSON database, that database is confidential, and a court cannot order PERS to "search[ ] for and compil[e] information from individuals' files." Reno Newspapers,
Further, to the extent that the majority suggests that an agency can now search the CARSON database pursuant to NRS 239.005(6)(b), this suggestion is misplaced as a matter of law. NRS 239.005(6)(b) merely defines "official state record" to include, in pertinent part, "information stored on magnetic tape or computer." NRS 239.005(6)(b) is not in conflict with NRS 286.110(3), because nothing in the statutory scheme suggests that a state record deemed confidential under NRS 286.110(3) would lose its confidential character merely because of the medium in which it is stored.
II.
My second objection to the majority's decision is that it amounts to a judicial transformation of the Public Records Act. The majority of this court agrees with NPRI and the district court that disclosure of that information is in the public interest, and that PERS has the technology to readily compile the requested information, so it imposes a duty upon PERS to create a customized report containing the requested information.
In sum, the majority's opinion today contravenes the plain language of the Public Records Act, it directly violates NRS 286.110(3), it exposes official state records otherwise declared confidential to agency search simply because they are stored on a computer, it inexplicably departs from stare decisis by overruling Reno Newspapers , and it sets Nevada apart from other jurisdictions that have considered this issue. I see no reason to depart so drastically from these binding and persuasive authorities.
Therefore, I dissent.
We concur,
Hardesty, J.
Parraguirre, J.
Neither party disputes that PERS is a governmental entity subject to the Act nor disputes that the requested information is subject to PERS' legal custody or control.
PERS draws inapposite analogies to our recent decision in City of Sparks v. Reno Newspapers , Inc., 133 Nev. ----,
Contrary to this principle, PERS argues that we should defer to its broad interpretation of these statutes. While we will generally defer to an agency's interpretation of its governing statutes and regulations, we need only do so if its interpretation is reasonable. See Collins Disc. Liquors & Vending v. State,
The dissent conflates the CARSON with the "individuals' files" to argue that the entire CARSON database is confidential. However, while the CARSON may be proprietary in nature, merely storing information in the CARSON does not render that information confidential. See 89-
The dissent argues that the creation of a computer program is not merely drawing information from a database, but rather, improperly requires the agency to conduct research. However, its reasoning ignores the realities of information storage in the digital age. As specifically recognized by the NCI I court, "computer records found in a database rather than a file cabinet may require the application of codes or some form of programming to retrieve the information." See NCI I,
The dissent incorrectly suggests that we are overruling our previous holding in Reno Newspapers . We merely recognize the case-by-case application required in public records requests and clarify our earlier holding to reflect the realities of the advancements in technology and to further the purpose underlying the Act. Reno Newspapers did not need to address whether the requested information was confidential by virtue of it being contained within the CARSON database, because the information was released to a third party in a report. See Reno Newspapers,
The majority relies upon American Civil Liberties Union v. Arizona Department of Child Safety for the proposition that declaring the CARSON records confidential places those records "outside of the public records law."
The 2013 raw data feed contained retirees' names, so PERS was able to provide the requested information simply by providing an unredacted version of that data feed. By contrast, to add names to the 2014 feed, PERS will have to extract names from the current CARSON database, which has changed since 2014. The majority concedes as much.
The majority, like the district court below, appears to fault PERS for removing pensioners' names from its 2014 raw data feed following our decision in Reno Newspapers . I am perplexed as to why PERS should be faulted for adhering to this court's decision while simultaneously protecting pensioners' information to the greatest extent possible.
Reference
- Full Case Name
- PUBLIC EMPLOYEES' RETIREMENT SYSTEM OF NEVADA, a public agency v. NEVADA POLICY RESEARCH INSTITUTE, INC.
- Cited By
- 7 cases
- Status
- Published