DONREY OF NEVADA, INC., AND RENO NEWSPAPERS, Appellants, v. ROBERT BRADSHAW, RENO POLICE DEPARTMENT, ROBERT L. VAN WAGONER AND THE CITY OF RENO, Respondents
Donrey of Nevada, Inc. v. Bradshaw
Springer, Mowbray and Rose, JJ., concur.
DONREY OF NEVADA, INC., AND RENO NEWSPAPERS, Appellants, v. ROBERT BRADSHAW, RENO POLICE DEPARTMENT, ROBERT L. VAN WAGONER AND THE CITY OF RENO, Respondents.
DONREY OF NEVADA, INC., AND RENO NEWSPAPERS, Appellants, v. ROBERT BRADSHAW, RENO POLICE DEPARTMENT, ROBERT L. VAN WAGONER AND THE CITY OF RENO, Respondents.
No. 20057
September 19, 1990
798 P.2d 144
Woodburn, Wedge & Jeppson, and James W. Hardesty, Reno, for Appellants.
Georgeson, McQuaid, Thompson & Angaran, Reno; Patricia Lynch, Reno City Attorney, and Stephen F. Volek, Deputy City Attorney, Reno, for Respondents.
OPINION
By the Court,
Young, C. J.:
In March 1986, pursuant to a plea bargain, the Reno City Attorney's office dismissed charges against Joe Conforte for contributing to the delinquency of a minor. Because the Reno Police Department opposed the dismissal, it undertook an investigation of the circumstances of the dismissal and prepared a written report. The report, which concluded that there was no evidence of criminal wrongdoing (e.g. no bribery of a public official), was sent to the City Attorney's office, the District Attorney, and a municipal judge. Thereafter, both the City Attorney's office and the Police Department refused to release a copy of the report to petitioners Donrey of Nevada, dba KOLO-TV (Donrey), and Reno Newspapers, Inc., dba Reno Gazette-Journal (Reno Newspapers).
In April 1986, Donrey and Reno Newspapers filed a petition for a writ of mandamus based on NRS 239.010 which provides for disclosure of public records. In March 1989, the district court denied the petition, concluding that the report was a police investigative report intended by the legislature to be confidential under NRS Chapter 179A. The court further concluded that Chapter 179A did not involve a balancing test to determine whether such reports could be released if public policy considerations outweighed privacy and/or security interests. The court also found, following an in camera review, that the report was approximately 85 percent criminal investigation and 15 percent recommendations on future administrative procedures.
Appellants contend that the district court erred in concluding that the entire report was a police investigative report and in failing to release at least the 15 percent of the report that the court found administrative. As discussed below, because we conclude that the entire report was subject to disclosure based on a balancing of the interests involved, we need not address this argument.
Appellants principally contend that the investigative report prepared by the Reno Police Department is a public record subject to disclosure under NRS 239.010 because no statutory provision declares the contents of this type of report confidential. Pursuant to NRS 239.010, "all public books and public records of. . . government[] . . . officers and offices . the contents of which are not otherwise declared by law to be confidential, shall be open at all times during office hours to inspection by any person . . . ." (Emphasis added.) Specifically, appellants maintain that the district court erred in concluding that NRS Chapter 179A declares investigative and intelligence information confidential and not subject to disclosure.
NRS Chapter 179A was enacted in 1979 in response to the federal government's requirement that states "provide an acceptable plan concerning the dissemination of criminal history records, or be subject to certain budgetary sanctions." See 83 Op. Att'y Gen. No. 3 (May 2, 1983). NRS 179A. 100(5) provides that
[r]ecords of criminal history must be disseminated by an agency of criminal justice upon request, to the following persons or governmental entities:
(i) Any reporter for the electronic or printed media in his professional capacity for communication to the public.
A "record of criminal history" is defined at NRS 179A.070 and specifically excludes investigative or intelligence information. Although this court has never interpreted the criminal history records statute, in 1983 the Attorney General rendered an opinion that criminal investigative reports were confidential and were not public records subject to NRS 239.010. See 83 Op. Att'y Gen. No. 3, supra.
Appellants maintain that the exclusion of the records listed in NRS 179A.070(2) from the definition of "record of criminal history" does not constitute a declaration of their confidentiality. Accurately observing that other excluded records are clearly not considered confidential, (e.g., posters of wanted persons, court records of public judicial proceedings), appellants assert that the Attorney General's opinion that investigative reports are confidential is inconsistent with the public status of the other records listed in NRS 179A.070(2).
Furthermore, appellants note that while Chapter 179A was patterned after the federal regulations concerning criminal history records, the Nevada legislature specifically deviated from the federal regulations when it excluded, along with other records, investigative and intelligence information from the definition of "criminal history records." See NRS 179A.070(2). Under the federal regulations, while the definition of "criminal history record information" is qualified not to extend to investigative information, a separate subpart specifically excludes various other records from the regulations governing disclosure of criminal history records. See 28 C.F.R. § 20.3(b), 20.20(b) and (c), and Appendix — Commentary on § 20.3(b) (1989). Unlike the federal regulations, the Nevada statute lists investigative and intelligence information together with other excluded records in the same subsection, NRS 179A.070(2), as not included in the definition of "record of criminal history" contained in NRS 179A.070(1). Appellants assert that the inescapable conclusion is that the Nevada legislature intended investigative reports to be subject to disclosure as are the other records.
Respondents maintain that this "overlap" does not appear to be intentional and they note that NRS 179A.070(1) states that "[t]he term [record of criminal history] is intended to be equivalent to the phrase 'criminal history record information' as used in the federal regulations." However, we reject respondents' argument that the legislature mistakenly lumped investigative reports together with other exclusions which are public records disclosable under NRS 239.010. Rather, we hold that the legislature deviated from the federal regulations with an intent to clarify that investigative reports are subject to disclosure if policy considerations so warrant.
Because NRS 179A.070 does not expressly declare criminal investigative reports to be confidential, we must determine to what extent they are disclosable under NRS 239.010. While 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. See, e.g., Carlson v. Pima County, 687 P.2d 1242, 1245 (Ariz. 1984); see also Records and Recording Laws, 66 Am.Jur.2d § 12 (1973). Appellants argue that, under common law, criminal investigative reports were not confidential unless confidentiality was made necessary by considerations of public policy and on a case-by-case basis. Appellants note that the Attorney General's 1983 opinion lists a number of public policy considerations in support of the conclusion that criminal investigative reports are confidential. In the present case, appellants argue that those same policy considerations favor disclosure of the report in question. Thus, appellants contend that the court erred in refusing to apply a balancing test to determine whether the investigative report should have been released.
Respondents assert that in enacting Chapter 179A, the legislature performed the necessary balancing between the public's right to know and individuals' rights to privacy and that consequently no additional judicial balancing is required. However, while the legislature may have balanced interests in deciding to require the release of criminal history records to the media, this is not dispositive of whether a court must balance public policy considerations when release of records other than those specifically defined as criminal history records is sought.
In support of their contention that the court should have used a balancing test to determine disclosure, appellants rely on a number of cases from other jurisdictions. See, e.g., Carlson, 687 P.2d at 1245; Irvin v. Macon Telegraph Publishing Co., 316 S.E.2d 449, 452 (Ga. 1984). Although respondents contend that these cases are inapposite, we hold that a balancing of the interests involved is necessary regardless of the case law from other jurisdictions. Moreover, in applying a balancing test to this case, none of the public policy considerations identified in the case law and the Attorney General's opinion as justifying the withholding of investigative information is present. There is no pending or anticipated criminal proceeding; there are no confidential sources or investigative techniques to protect; there is no possibility of denying someone a fair trial; and there is no potential jeopardy to law enforcement personnel. Even the district court acknowledged in its order that "if a [balancing] test were applied under the circumstances of this case, petitioners would undoubtedly prevail."
Accordingly, weighing the absence of any privacy or law enforcement policy justifications for nondisclosure against the general policy in favor of open government, we reverse the district court's denial of appellants' petition and remand with instructions to issue a writ of mandamus ordering respondents to release to appellants the entire police investigative report.
Springer, Mowbray and Rose, JJ., concur.
NRS 179A.070 provides:
"Record of criminal history" defined.
1. "Record of criminal history" means information contained in records collected and maintained by agencies of criminal justice, the subject of which is a natural person, consisting of descriptions which identify the subject and notations of arrests, detention, and indictments, informations or other formal criminal charges and dispositions of charges, including dismissals, acquittals, convictions, sentences, correctional supervision and release, occurring in Nevada. The term includes only information contained ip memoranda of formal transactions between a person and an agency of criminal justice in this state. The term is intended to be equivalent to the phrase "criminal history record information" as used in federal regulations.
2. "Record of criminal history" does not include:
(a) Investigative or intelligence information, reports of crime or other information concerning specific persons collected in the course of the enforcement of criminal laws.
(b) Information concerning juveniles.
(c) Posters, announcements or lists intended to identify fugitives or wanted persons and aid in their apprehension.
(d) Original records of entry maintained by agencies of criminal justice if the records are chronological and not cross-indexed in any other way.
(e) Records of application for and issuance, suspension, revocation or renewal of occupational licenses, including permits to work in the gaming industry.
(f) Court indices and records of public judicial proceedings, court decisions and opinions, and information disclosed during public judicial proceedings.
(g) Records of traffic violations constituting misdemeanors.
(h) Records of traffic offenses maintained by the department to regulate the issuance, suspension, revocation or renewal of drivers' or other operators' licenses.
(i) Announcements of actions by the state board of pardons commissioners and the state board of parole commissioners.
(j) Records which originated in an agency other than an agency of criminal justice in this state.
(Emphasis added.)
The dissent argues that if the reports are non-confidential and subject to disclosure under NRS 239.010, then "the reports are to be made available to any person, at all times during office hours, for any advantage and for copying in full." Stating that this is an untenable conclusion, the dissent asserts that we have rewritten NRS 239.010 with a balancing limitation regarding investigative and intelligence files. Rather than rewriting the Public Records Act, however, we simply recognize a common law limitation on the otherwise unlimited provisions of NRS 239.010.
The opinion states:
The legitimate public policy interests in maintaining confidentiality of criminal investigation records and crime reports include the protection of the elements of an investigation of a crime from premature disclosures, the avoidance of prejudice to the later trial of the defendant from harmful pretrial publicity, the protection of the privacy of persons who are not arrested from the stigma of being singled out as a criminal suspect, and the protection of the identity of informants.
83 Op. Att'y Gen. No. 3 (May 2, 1983).
The dissent suggests that we should adopt a "categorical" balancing test similar to that involved in the federal Freedom of Information Act. 5 U.S.C. § 552(b)(7) (1988). Contrary to the dissent's characterization of our balancing test as "ad hoc," however, we do not believe that there is a meaningful difference between the two tests, especially where a number of the considerations listed in federal Exemption 7 are virtually identical to policy considerations mentioned here. Furthermore, we do not perceive that it would be any less burdensome to judicially screen' these records under the dissent's proposed categorical test, if indeed judicial screening is unduly burdensome at all.