Before the Court en banc. Opinion by Justice Parraguirre.
In this appeal from a district court order granting a petition for a writ of mandamus, the Court addressed whether individual retiree files that are maintained by Public Employees’ Retirement System of Nevada (“PERS”) are subject to public access. In 2011, the Reno Gazette-Journal (“RGJ”) submitted a public records request to PERS in furtherance of an investigation into government expenditures and the public cost of the retiree pensions. PERS rejected the request asserting that the records were confidential and RGJ responded with a writ petition in district court on the basis that the information was not confidential because it was compiled from public documents. The district court granted RGJ’s petition, concluding that the records sought (e.g. names of retirees, names of government employers, salaries, hire and retirement dates, amounts of pension payments) were not confidential under the applicable statutes (NRS 286.110(3) and 286.117), and further ordered PERS to produce a report that contained the requested information. PERS appealed. The Court considered the scope of confidentiality set forth in NRS 286.110(3), which states, in part: “[t]he official correspondence and records, other than the files of individual members or retired employees,…are public records and are available for public inspection.” (emphasis added). The Court held that the limitation in NRS 286.110(3) must be construed narrowly and only protects an individual’s file itself, but not all information therein merely because it exists in an individual’s file. For example, if the information is contained in other reports, media, etc., the information is not confidential just because the same information exists in an individual’s file. The Court acknowledged that other statutes, rules, or caselaw could form an independent basis for confidentiality; however, PERS did not identify any separate legal authority that would preclude RGJ’s request. The Court also rejected PERS’ alternative argument that the district court erred in concluding that the government’s interest in maintaining confidentiality of the individuals’ files did not outweigh the public’s interest in access to the information. The Court noted that the rationales proffered by PERS (greater risk of identity theft and elder abuse if records disclosed) were not supported by sufficient evidence that actual harm would occur and were merely speculative. The Court vacated the district court’s order to the extent it required PERS to create or customize reports by searching or compiling information. Affirmed in part, vacated in part. (Kristen T. Gallagher, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
