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Clark County Commission votes to obstruct access to public records

The Clark County Board of Commissioners voted to move forward with the Clark County Office of the Coroner/Medical Examiner’s request to appeal the order recently entered by Eighth Judicial District Court Judge James Crockett directing the Coroner to produce unredacted juvenile autopsy reports to the Las Vegas Review-Journal.

This latest effort by the Coroner to stymie access to public records is contrary to the Nevada Public Records Act, NRS 239.001, et seq., and the Nevada Supreme Court’s interpretation of that important Act. The NOGC urged the Board to deny the request.

The NOGC is a nonpartisan, nonprofit organization supporting democratic government accountability through transparency, with members from across the political spectrum. Although our members may have divergent views on many issues, we share the common belief that the most effective way to ensure government accountability and foster public trust is through transparency.

Unfortunately, far too many of Nevada’s governmental entities do not share the belief that the public is entitled to access their records—to the detriment of Nevada’s citizens. This case involving the Coroner’s refusal to disclose autopsy records is an example of how damaging a governmental entity’s resistance to transparency can be.

Since 2017, the Las Vegas Review-Journal has sought access to copies of juvenile autopsy reports to assess how child deaths are investigated and to assess what state and local governments are doing to protect children under child protective services supervision. Access to such information not only provides the public with a better understanding of the flaws in Nevada’s child welfare systems—it can also lead to positive changes to those systems, including preventing future child deaths.

Other states have benefitted from access to records about juvenile deaths. In 2012, the Denver Post and Denver television news station KUSA ran an investigative series, “Failed to Death,” which reported on the deaths of children whose families or caregivers were known to social services before their deaths. The news outlets’ reporting was based on records obtained from the Colorado Department of Human Services and local governmental entities, including autopsy reports, from 72 cases of children who died as a result of family abuse or neglect. Thanks to the Denver Post’s and KUSA’s reporting, Colorado made substantial reforms to its child welfare system, including a statewide hotline for reporting child abuse and neglect, new training on how to assess reports of abuse and neglect, a study of workloads and caseloads for child protection workers, and steering new resources to troubled families to help prevent abuse before it starts.

In Texas, in 2017, the Fort Worth Star-Telegram reviewed the autopsies conducted on two children after the children, who shared a caretaker, died two years apart in a strikingly similar manner. The newspaper’s analysis, which drew on the expertise of outside forensic pathologists who reviewed the autopsy reports, convinced local authorities to re-examine their findings.

Despite the obvious benefit access to autopsy records would have for the children of Clark County, the Coroner has fought tooth and nail—at taxpayers’ expense—to resist disclosure of the records the Review-Journal requested. The Coroner argued in the district court and at the Nevada Supreme Court that the juvenile autopsy records the Review-Journal requested are categorically confidential because they had been reviewed by a Child Death Review team.

Both the district court and the Nevada Supreme Court rejected the Coroner’s categorical approach. The Supreme Court held that reports about child fatalities must be “publicly accessible as a matter of policy favoring transparency and as a matter of compliance with federal law requiring disclosure as a condition for child services grant funds” and that “the CDR team confidentiality provision is not intended to categorically exempt records ... from the NPRA's disclosure requirement.” Clark Cty. Office of Coroner/Med. Exam'r v. Las Vegas Review-Journal, 136 Nev. 44, 53, 458 P.3d 1048, 1056 (2020).

On remand, the district court was instructed to balance nontrivial privacy interests against the public’s interest in access and determine what information merited redaction and what information had to be disclosed. The Coroner, unfortunately, did not take this task seriously. While the Review-Journal established “multiple significant public interests” in access to the autopsy reports, the Coroner steadfastly adhered to the categorical assertion that it was entitled to redact whatever it considered to be “unrelated” to the cause and manner of death—even after the district court offered to conduct an in camera review of the reports to assess the Coroner’s privilege assertions. When the district court asked the Coroner whether it had reviewed and assessed the 600 to 700 reports it has withheld since 2017, the Coroner admitted that it had not reviewed those reports, but instead intended to redact the information it unilaterally determined was “unrelated” to the cause and manner of death. After the Coroner refused to budge from this position, the district court correctly ordered it to disclose the reports to the Review-Journal.

The Coroner has attempted to characterize the district court’s decision as finding that the Coroner had “waived” its ability to assert privileges, but the district court actually ruled that the Coroner had chosen not to timely provide legal arguments and the basis for them and could not later provide them for in camera review, because the Coroner had not engaged in any review of the vast majority of the reports at issue, and the Coroner made clear it would not do anything other than make categorical redactions.

As the district court observed at a recent hearing on the Coroner’s request to further stall production of the autopsy reports, the Coroner’s actions in this matter “demonstrates the [C]oroner’s [O]ffice is bound and determined to circumvent and avoid the Nevada Public Records Act by stonewalling and obfuscating.” So far, this litigation has cost taxpayers approximately $80,000.

The Coroner now seeks to continue circumventing and avoiding its obligation to transparency under the NPRA through yet another appeal. The Commission should not allow that to continue. A further appeal will cost taxpayers yet more money, undermine the NPRA and the public’s interest in access to the records of governmental entities designed to protect and serve them, and--worst of all--place at risk the safety of the County’s most vulnerable children.

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