EDITORIAL: Court shields certain peace officer records from scrutiny

The state’s public records law took a blow this week. Lawmakers should strengthen it next session.

On Thursday, the Nevada Supreme Court rebuffed the ACLU of Nevada in its efforts to obtain more documents concerning a Clark County school police officer’s use of force against Durango High School students. The case involved a 2023 altercation in which the officer was seen on a viral video pushing a Black student to the ground.

The incident garnered significant attention, and the ACLU sought records related to the encounter. As they often do, district officials went into obfuscation mode, releasing only a handful of documents and claiming everything else was “exempt from disclosure” because it was “evidence in an ongoing employment investigation of the officer,” the high court noted.

A District Court judge eventually ruled that many items — including body-cam footage and the incident report — were in the public record, but certain internal affairs and investigative records could be kept confidential. The ACLU fought on.

In denying the ACLU’s appeal, a three-justice panel acknowledges the importance of the state’s public records law and notes that the court has held that records must be presumed public and “rebutting this presumption requires either an explicit statute making the record confidential or a conclusion that a privacy or law enforcement interest outweighs the public’s interest in the information.” The justice also acknowledge that any exceptions should be “construed narrowly.”

But the justices argue that Chapter 289 of the Nevada Revised Statutes includes specific exemptions for some information revealed during investigations of peace officer misconduct, specifically any information that the officer’s representative receives from the officer himself — a type of attorney-client privilege. They also point out that the law does not allow the officer to access complete investigatory files unless the probe results in punitive action. In this case, the school district police officer was not disciplined.

Thus, the decision concludes, “making the records public would potentially result in a file being publicly available through the (public records act) even though the peace officer under investigation could not access the entirety of the file. … This renders an illogical result.”

The ruling emphasizes that “nothing in this opinion should be construed as excising or amending our prior” jurisprudence on open records. OK. But the public has a clear interest in the conduct of those they pay to protect and serve. Given that the records in question weren’t specifically exempted by statute, the justices could have solved any tension by coming down on the side of transparency.

The Legislature should revisit NRS Chapter 289 to strike a better balance.