Before the Court en banc. Opinion by Justice Saitta.
In this appeal, the Nevada Supreme Court considered two issues: (1) whether a state entity must, after the commencement of litigation, provide a log of records it withholds from a requesting party pursuant to the Nevada Public Records Act (NPRA) and (2) prior to the commencement of litigation, what information about non-disclosed records must the state entity provide to a requesting party pursuant to the NPRA. To resolve the first issue, the Court reviewed its prior jurisprudence regarding the framework for analyzing claims of confidentiality pursuant to the NPRA, concluding that there is (1) a presumption that government-generated records are open to review, (2) limits on disclosure must be based on a broad balancing of the interests involved unless there is a statutory provision on point, and (3) the state entity cannot meet its burden of showing that it should not disclose a record without a particularized showing or by expressing hypothetical concerns with disclosure. In light of this framework, the Court held that a requesting party is generally entitled to a log, similar to a Vaughn index as utilized for Freedom of Information Act requests under federal law, unless the state entity demonstrates that the requesting party has sufficient information to meaningfully contest the entity’s claim of confidentiality. The Court did not expressly state what must be in the log, but concluded that it should generally contain a factual description of each record withheld and a specific explanation for nondisclosure. As to the second issue, the Court held that the withholding state entity need not provide a log prior to the commencement of litigation because the NPRA requires only notice of nondisclosure and a citation to specific authority for withholding the record(s). General citations to caselaw do not satisfy the NPRA and informal internal e-mail policies are not sufficient grounds upon which to deny a records request. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson).
