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Overview of Public Records Law
Jonathan P. Leleu
I. Purpose and intent
A. Guarantee public documents are made available to the public.
B. Foster democratic principles and transparency.
C. Ensure accountability.
Often times, the legislative intent behind a given law can be murky, or difficult to track.
Such is not the case with the Nevada Public Records Act (“NPRA”), codified at Chapter 239 of
the Nevada Revised Statutes. The Nevada Legislature has made plain the intent of the NPRA,
stating in the very first section of Chapter 239:
The purpose of this chapter is to foster democratic principles by providing
members of the public with access to inspect and copy books and records to the
extent permitted by law. The provisions of this chapter must be construed
liberally to carry out this important purpose. Any exemption, exception, or
balancing of interests which limits or restricts access to public books and records
by members of the public must be construed narrowly…
NRS 239.001(1)-(3).
With few exceptions, discussed below, the Nevada Supreme Court has consistently and
uniformly applied the Legislature’s stated intent. For example, in Reno Newspapers, Inc. v.
Sheriff, 234 P.3d 922 (Nev., 2010), the Court examined whether the identity of the holder of a
concealed weapons permit (in this case, former Governor Jim Gibbons) is subject to disclosure.
Articulating Nevada’s broad policy of full disclosure, the Court noted:
Under the Nevada Public Records Act …, all public records generated by
government entities are public information and are subject to public inspection
unless otherwise declared to be confidential. NRS 239.010. The purpose of the
Act is to foster principles of democracy by allowing the public access to
information about government activities. NRS 239.001(1); see DR Partners v. Bd.
of County Comm'rs, 116 Nev. 616, 621, 6 P.3d 465, 468 (2000). In 2007, the
Legislature amended the Act to ensure the presumption of openness, and provided

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that all statutory provisions related to the Act must be construed liberally in favor
of the Act's purpose. NRS 239.001(2). In contrast, any exemption, exception, or a
balancing of interests that restricts the public's right to access a governmental
entity's records must be construed narrowly. NRS 239.001(3). Thus, this court
will presume that all public records are open to disclosure unless either (1) the
Legislature has expressly and unequivocally created an exemption or exception by
statute, see Cowles Pub. Co. v. Kootenai County Bd., 144 Idaho 259, 159 P.3d
896, 899 (2007) (holding that unless public records are “expressly exempted by
statute,” they are presumed to be open to inspection by the public); Kroeplin v.
Wisconsin DNR, 297 Wis.2d 254, 725 N.W.2d 286, 292 (Wis.Ct.App.2006)
(holding that “exceptions to the open records law are to be narrowly construed;
unless the exception is explicit and unequivocal, we will not hold it to be an
exception”); or (2) balancing the private or law enforcement interests for
nondisclosure against the general policy in favor of an open and accessible
government requires restricting public access to government records. See Donrey
of Nevada v. Bradshaw, 106 Nev. 630, 635–36, 798 P.2d 144, 147–48 (1990).
And, in unity with the underlying policy of ensuring an open and accountable
government, the burden is on the government to prove confidentiality by a
preponderance of the evidence. NRS 239.0113(2).
Reno Newspapers v. Sheriff, 126 Nev. Adv. Op. 23, 234 P.3d 922, 924-25 (2010). A year later,
the Nevada Supreme Court revisited and re-iterated Nevada’s long-standing policy of full
disclosure, stating:
The NPRA provides that all public books and public records of governmental
entities must remain open to the public, unless “otherwise declared by law to be
confidential.” NRS 239.010(1). 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. NRS 239.001(1). Thus, the
provisions of the NPRA are designed to promote government transparency and
accountability.
Reno Newspapers, Inc. v. Gibbons, 266 P.3d 623 (2011).
The Nevada Legislature and Nevada Supreme Court have made clear books and records
of a governmental entity are available for inspection or copying, and have expressly instructed
governmental entities to default in favor of full disclosure, unless 1) the documents are declared
exempt by statute or 2) balancing the interests for nondisclosure against the general policy in
favor of a transparent government requires restricting public access to government records. Full
transparency in government is the rule under the NPRA.

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II. Public records defined
The Nevada Administrative Code defines “public record” as “a record of a local
governmental entity that is created, received or kept in the performance of a duty and paid for
with public money.” NAC 239.091. The NPRA gives this definition greater contour, and
effectively sets forth 3 elements to determine whether a record is a “public record.”
Paraphrasing, NRS 239.010 further defines “public records” as all books and records which are in
the “custody or control” of a “governmental entity”, and are not “confidential”.
A. Custody or control
A substantial component of determining whether a record is a “public record” is
possession of the record. NAC 239.041 defines “legal custody” as follows:
all rights and responsibilities relating to the maintenance of and access to a record
or series of records are vested in an office or department of a local governmental
entity and the official or head of the department is charged with the care, custody
and control of that record or series of records. The term does not include the
ownership of the record.
Accordingly, “custody” means vesting the right and responsibility of maintaining and governing
access to a record, as opposed to actually owning the record. Put another way, the person
charged with the duty of maintaining the record is deemed to have custody of it.
B. Governmental entity
The disclosure mandates of the NPRA only apply to governmental entities. There are 2
definitions of governmental entity in the NPRA; one for state entities, and the other for local
entities. A state governmental entity is:
1. An elected or appointed officer of Nevada or of a political
subdivision of Nevada;
2. An institution, board, commission, bureau, council, department,
division, authority or other unit of government of Nevada,
including, without limitation, an agency of the Executive
Department, or of a political subdivision of Nevada;

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3. A university foundation; or
4. An educational foundation, to the extent that the foundation is
dedicated to the assistance of public schools.
NRS 239.005(5).
A local governmental entity is: “[a] county, incorporated city, unincorporated town, township,
school district, or any other public district or agency designed to perform local government
functions.” NRS 239.121(3).
C. Confidential
The NPRA separates records deemed confidential into two buckets; records with a
statutory exemption, and records which, after balancing the interests in favor of nondisclosure
against the general policy in favor of a transparent government, are determined to be of a nature
which ought not be disclosed.
1. Confidential by Statute
Many public records have been declared confidential by express statutory provision. In
2008, the Nevada Press Association published a “Nevada Reporter’s Legal Handbook”, which
references a non-exhaustive list of government records which are statutorily exempt from the
dissemination mandates of the NPRA, along with references to the exemption. The list is as
follows:
Juvenile Records: NRS 62H.130, 62H.150
Juvenile Crime: NRS 62H.020
Acknowledgment of Paternity: NRS 126.051
Records of Paternity Actions: NRS 126.211
Adoption Records and Reports: NRS 127.130, 127.140
Grand Jury Proceedings: NRS 172.245, 172.271
Presentence Reports: NRS 176.156
Criminal Records: NRS 179A.090, 179A.100, 179A.110
Reports Of Senior Citizen Abuse: NRS 200.5095
Wiretap Contents: NRS 200.630
Parole Records: NRS 213.1075
D.A/Public Defender Personnel Records: NRS 218.5391
Identity Of Bill Drafter in Legislature: NRS 218.625

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Nevada Equal Rights Commission Information: NRS 233.190
Library Patron Records: NRS 239.013
License Tax Records: NRS 268.490
PERS Individual retiree files: NRS 286.110
Proprietary information and trade secrets: NRS 333.333
State Budget Parts when sent to fiscal Analysis Division: NRS 353.205
Students' Individual Test Results: NRS 389.017
Department Of Highways Financial Statement: NRS 408.215
Nevada National Guard Reports In Line Of Duty: NRS 412.152
Confidential Water & Energy Information: NRS 416.070
Welfare Records: NRS 422.290
Reports Of Child Abuse: NRS 432.120
Sealed Birth Certificates: NRS 440.280
Communicable Diseases: NRS 441A.220
Health Care Facility Licensing Information: NRS 449.200
Names Of Patients In Medical Research: NRS 453.151
Medical Treatment Facility Registration Records: NRS 458.280
Hazardous & Radioactive Waste: NRS 459.050, 459.555
Gaming Control Board Information: NRS 463.120
Work Permit Application Information: NRS 463.335
Records Of The Employment Security Department: NRS 612.265
Trade Secrets: NRS 586.410, 618.365
State Contractors Board Records: NRS 624.110, 624.265
Physician Credential Reviews: NRS 630.336
Prescriptions: NRS 639.238
Tax Records On Banks: NRS 661.115
Bank Examination Report: NRS 668.085
Savings & Loan Reports: NRS 673.430
Insurance Commissioner Investigations: NRS 679B.190
Public Utilities: NRS 704.190
Accident Reports To the PSC by Motor Carriers: NRS 706.251
Evan Wallach, The Nevada Reporter’s Legal Handbook (2008), available at
http://nevadapress.com/Reporters_legal_handbook.html
Scribes and watchdog groups alike have complained – often loudly – that the extensive list of
carve-outs above eclipses the Nevada Supreme Court’s clear disclosure mandate. Without
approaching the substance of the debate, it is important to note without statutory exemptions,
government entities would be left with 2 choices when presented with a public records request;
disclose the record, or seek judicial intervention to invoke a policy reason for non-disclosure.

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2. Balancing of Interests Weighs in Favor of Confidentiality.
Although not codified in the NPRA, the second “bucket” of confidential records includes
records which, after balancing the interests in withholding the document against the interests in
open government, are deemed of a variety which should remain confidential. Although
variations existed in several states for some time prior, the “balancing test” was first recognized
by the Nevada Supreme Court in the seminal case of Donrey of Nevada v. Bradshaw, 106 Nev.
630, 798 P.2d 144 (1990). In Bradshaw, the Court examined whether an investigative report
pertaining to a criminal suspect is subject to the same disclosure mandate as criminal history
records under Nevada law. Id. The Court found an investigative report is not specifically
declared to be confidential by Nevada statute. Id., at 634, 147. However, instead of simply
ruling that the report should be disclosed pursuant to the universal mandate of the NPRA, the
Court cautioned, “[w]hile NRS 239.010 mandates unlimited disclosure of all public records,
other courts considering this question have recognized the common law limitations on disclosure
of such records.” Id. Recognizing confidentiality could be “made necessary by considerations
of public policy and on a case-by-case basis”, the Court stated the following public policy
concerns could render a record confidential and justify an agency’s refusal to disclose it:
1. Pending or anticipated criminal proceeding;
2. Confidential sources or investigative techniques to protect;
3. Possibility of denying someone a fair trial; or
4. Potential jeopardy to law enforcement personnel.
Id., at 636, 148. Ultimately, the Court found none of these considerations existed, and issued a
writ of mandamus compelling disclosure of the report. Id.

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In 1998, Justice Rose wrote a concurring opinion in the Nevada Supreme Court’s
unpublished decision Tyson v. State Ex. Rel. Nevada Athletic Comm'n, 33132, 1998 WL 740942
(Nev. Oct. 20, 1998), which further defined the “balancing test”. Holding confidential medical
records put in issue by a licensee become public, Justice Rose said the Nevada Athletic
Commission could redact information which is not essential to the license prior to disclosure,
using the “balancing test”:
I conclude that the Nevada Athletic Commission does have the authority to keep
confidential the medical reports or portions of them that will be highly prejudicial
to Mr. Tyson and not essential to the disposition of the case. NRS 239.010
provides that all public books and public records of a governmental entity, the
contents of which are not otherwise declared by law to be confidential, must be
open to inspection by any person. NRS 449.720 declares that a person's medical
records are confidential. Although Mr. Tyson has the benefit of that
confidentiality, he has also put the contents of those reports in issue before a
public body.
This brings us to the situation we recognized in Donrey of Nevada v. Bradshaw,
106 Nev. 630, 798 P.2d 144 (1990), concerning this statute and the balancing of
the public's right to know and the damage that disclosure may do to an individual.
These medical records should be reviewed in camera by the Commission. Those
records or portions of the records that are highly prejudicial and not essential to
the deliberations could be redacted or summarized as specifically recognized in
NRS 239.010, the public records statute, before being made public. Needless to
say, this authority should be used sparingly and not to prevent the public from
being informed of the relevant findings in the reports. Because we are not the
fact-finding body in this case, I would leave this function to the good judgment of
the Nevada Athletic Commission.
Two years later, the Nevada Supreme Court formally expanded the “balancing test”
beyond the specific law enforcement circumstances outlined in Bradshaw. In DR Partners v.
Board of County Commissioners, 16 Nev. 616, 6 P.3d 465 (2000), the Court held when any
public record is not made confidential by statute, the “balancing test” must be used:
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…

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* * * *
In Bradshaw, this court, at least by implication, recognized that any limitation on
the general disclosure requirements of NRS 239.010 must be based upon a
balancing or “weighing” of the interests of non-disclosure against the general
policy in favor of open government. Bradshaw specifically held that, in the
absence of an express statutory privilege against non-disclosure, certain criminal
investigative reports prepared by a public law enforcement agency were subject to
disclosure pursuant to the balancing test. The Bradshaw court did not elaborate on
the existence or scope of common law privileges protecting disclosure of public
records.
The Nevada Supreme Court then went on to apply the generalized “balancing test” to the
deliberative process privilege, and weighed an executive agencies’ interest in discussing policy
without the fear of public disclosure against the public’s interest in access to information. The
Court held predecisional and deliberative records, the records of policy discussions before the
policy was actually created by the agency, shall remain confidential, and not subject to
disclosure. Id., at 623, 469.
Finally, in the aforementioned Reno Newspapers v. Sheriff decision, the Court held the
identity of a concealed weapons permit holder, and records of post-permit investigations of such
permits are public records subject to disclosure, and non-essential confidential information
contained in the records should be redacted before disclosure. In addition, the Court
acknowledged the Nevada Legislature’s 2007 amendment to the NPRA limited its holding in
Bradshaw and DR Partners:
… in light of the Legislature’s declaration of the rules of construction of the
Act—requiring the purpose of the Act to be construed liberally and any restriction
to government documents to be construed narrowly—the balancing test under
Bradshaw now requires a narrower interpretation of private or government
interests promoting confidentiality or nondisclosure to be weighed against the
liberal policy for an open and accessible government. See NRS 239.001. We
emphasize that the balancing test must be employed in accordance with the
underlying policies and rules of construction required by the Nevada Public
Records Act.
Id., at 926.

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Importantly, the Court also clearly and unequivocally increased the burden of proving the
governmental interest in non-disclosure, stating conjecture and supposition of policy concerns
would not meet the government’s burden. Id. Rather, the Court articulated the new burden of
proof as whether “the government interest clearly outweighs the public’s right to access.” Id.
3. Burden of proof
If a governmental entity claims a record is confidential, the governmental entity bears the
burden of proving by a preponderance of the evidence that the record is in fact confidential. As
stated above, the Nevada Supreme Court has increased the government’s burden in recent years,
holding the government must show its policy concern “clearly” outweighs the public’s interest in
open, accountable government. “Non-particularized” or hypothetical concerns will not meet this
burden. Reno Newspapers, Inc. v. Gibbons, 266 P.3d 623 (2011).
III. Responding to requests
A. Initial considerations
1. Determine whether the request has come to the right place.
2. Determine whether the request seeks a confidential document.
3. Determine whether the document requested seeks confidential information.
4. Determine whether an exception exists requiring withholding the document.
B. Crafting the response
Upon receipt of a public records request, the person who has legal custody or control of a
public book or record must respond in writing within five business days. NRS 239.0107.
Depending on the circumstances, the response must take one of the following four forms:
1. Allow the person to inspect or copy, or provide a copy;

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2. If the governmental entity does not have the document, provide written notice of
that fact and the name and address of the entity which has the document, if known;
3. If the governmental entity is unable to make the document available by the end of
the 5th day, provide written notice of that fact, and the date and time when the record will be
made available.
4. If the request must be denied because the requested record is confidential, provide
written notice of that fact, and include citation to the specific statute or other legal authority
which makes the record confidential. Of note, the Nevada Supreme Court has noted “the
framework established in Bradshaw, DR Partners, and Reno Newspapers v. Sheriff exemplifies
an intensely adversarial method for determining whether requested records are confidential”, and
therefore is now requiring the use of a confidentiality log in NPRA proceedings. Gibbons, at
628. Although the Court has not gotten into specifics with respect to the contents of the log, the
Court did outline generally that the “log should contain, at a minimum, a general factual
description of each record withheld and a specific explanation for nondisclosure.” Id., at 629.
Although the NPRA, commentators, and the relevant case-law suggest an adversarial
relationship between the requesting party and the governmental entity, it should be noted
governmental entities are encouraged to work with the public to facilitate production of public
records. Accordingly, a governmental entity may communicate with the requesting party orally
for purposes of clarifying a request and for the sake of efficiency. That said, the NPRA requires
the governmental entity to formally respond in writing to all requests.
IV. Fees
Unless otherwise provided by statute or regulation, governmental entities may charge a
fee for providing a copy of a public record, provided the fees do not exceed the actual cost the

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governmental entity incurs in providing the record. NRS 239.052. Prior to 2013, that fee was
not to exceed $1.00 per page. In 2013, the Nevada Legislature lowered the cap to $.50 per page.
If the governmental entity charges a fee to produce records, the NPRA requires the entity to post
in a conspicuous place a sign which clearly advises of the fee. The NPRA also notes fees may
attach for preparation of an administrative hearing transcript NRS 239.053, provision of
information from a geographic information system NRS 239.054, use of extraordinary personnel
or resources in fulfilling a request NRS 239.055, and in other circumstances.
Should a governmental entity improperly refuse to provide records in response to a
proper request, a different fee may attach; attorney’s fees. NRS 239.011 states an aggrieved
party may make application to the district court for an order permitting inspection or requiring
production of a non-confidential public record which is less than 30 years old (records at least 30
years old, not about a natural person, or is about a deceased person are presumed non-
confidential and accessible), and if the party prevails, the court may award attorney’s fees and
costs incurred by the party in pursuing the matter. Several cases have blunted this statute,
however, creating carve-outs for “good faith” denial of access.