The Nevada Open Government Coalition is concerned that a proposed $200 per-hour fee for the compilation and release of footage from Sheriff’s Office body worn cameras (BWC) would harm access to public records. We believe that the proposed fee runs afoul of Nevada public records law and is contrary to the spirit of government accountability enshrined in the Nevada Public Records Act, NRS 239.010 et seq.
The fee is poor public policy because it rests on faulty logic in at least two ways. First, while law enforcement agencies can be praised for incorporating BWCs as a tool to increase transparency and accountability, they cannot serve that purpose if access to the footage is limited by prohibitive costs. Second, in its staff report for the Dec. 8 meeting, the Sheriff’s Office explains that the fee is justified by an increase in requests for footage. If a functional and accountable government relies on transparency, how can increased interest in public records justify making access to them more expensive? At a moment when citizens are demanding transparency about policing and its impacts on minority and underprivileged people, elected officials should be limiting barriers to public information about law enforcement, not raising them.
The fee also appears to be based on a shaky and unclear legal justification, which could result in litigation, a cost borne by Washoe County taxpayers. The Sheriff’s Office explains that the fee is intended to account for increasing employee time spent responding to requests, but the Nevada Public Records Act does not allow such fees. According to NRS 239.052, fees “must not exceed the actual cost to the governmental entity to provide the copy of the public record,” where the term actual cost is limited to direct costs such as “the cost of ink, toner, paper, media and postage” and “does not include a cost that a governmental entity incurs regardless of whether or not a person requests a copy of a particular public record.” (NRS 239.005) Responding to public records requests is a cost the Sheriff’s Office’s can generally be expected to incur, so attaching a fee to employee time for retrieving and redacting a particular record is charging the public twice for that record. Bolstering this position is a 2018 Clark County District Court case involving BWC footage, in which the court ruled that a $50 per-hour redaction fee was “excessive,” calling it “the antithesis of transparency.” Moreover, in educational materials on the Nevada Public Records Act, the Nevada Attorney General’s office has said that fees should not include employee time in responding to requests.
We urge the Commissioners to reject this proposed fee.
Members of the public may submit comments about the proposed fee by emailing Washoe311@washoecounty.us or by sending a voice message to 775-954-4664.