Nevada Public Records Law
Community access to government documents promotes transparency and oversight of governmental entities by the general public those entities serve and, as recognized by the statutory scheme, such access fosters democratic principles. Chapter 239 of the Nevada Revised Statutes governs the public’s access to “all public books and public records of a government entity, the contents of which are not otherwise declared by law to be confidential.” Valid public records requests typically must be responded to within five days. The Legislature has specifically directed that the provisions of NRS Chapter 239 are to be construed broadly in favor of promoting access to information. Conversely, “any exemption, exception or balancing of interests which limits or restricts access…must be construed narrowly.”
As the preceding sentence implies, public access to government records is not unfettered, but may be limited by other sections of the Nevada Revised Statutes (a lengthy list is provided in NRS 239.010), state regulations, federal statutes, or case law. Various exceptions to the Nevada Public Record Act include, but are in no way limited to: The existence of a proceeding before the Nevada Judicial Commission (until the Commission makes a determination pursuant to NRS 1.467); certain information pertaining to juvenile justice; generally, the existence of investigations or disciplinary proceedings before various professional boards prior to a decision imposing discipline; certain information pertaining to prospective adoptive parents of a child, etc.
The Nevada Supreme Court recently discussed one such exception to the Nevada Public Records Act. In The Nevada Independent v. Richard Whitley, 138 Nev. Adv. Op. 15 (March 24, 2022) our high court confirmed that policies favoring the public’s access to governmental documents and records must give way when the public records request pertains to information consisting of trade secrets protected under the federal Defend Trade Secrets Act.
In Whitley, The Nevada Independent submitted a public records request to the Department of Health and Human Services seeking the release of documents submitted to the DHHS by pharmaceutical companies and pharmacy benefit managers regarding the cost structure of insulin medication in Nevada pursuant to NRS 439B.600-695. Specifically, the information requested consisted of lists of essential diabetes medications, manufacturer’s pricing of such drugs, and justification for price increases. After the DHHS denied The Nevada Independent’s request for such information made pursuant to NRS Chapter 239B, The Nevada Independent petitioned the district court to order DHHS to release the requested information. The district court determined that the information in the requested documents comprised trade secrets protected by the Defend Trade Secrets Act, and were thus not subject to disclosure under the Nevada Public Records Act.
Applying a two-factor test prescribed by the federal Defend Trade Secrets Act, the Nevada Supreme Court affirmed the lower court’s decision. The Nevada Supreme Court determined that the district court properly concluded both that the owners of the allegedly proprietary information (manufacturers and pharmacy benefit managers) took reasonable measures to keep the information secret, and that the owners derived economic value from the information’s nondisclosure. Therefore, the Nevada Supreme Court determined that the district court properly denied The Nevada Independent’s petition for disclosure of the information requested from the DHHS.
If you have questions regarding a request for information pursuant to the Nevada Public Records Act or believe that a valid public records request has been improperly denied, the attorneys at Lemons, Grundy & Eisenberg may be able to provide assistance.