Las Vegas Metro. Police Dep't v. Las Vegas Review-Journal

478 P.3d 383

LAS VEGAS METROPOLITAN POLICE DEPARTMENT, Appellant,

v.LAS VEGAS REVIEW-JOURNAL, Respondent.

No. 78967

Supreme Court of Nevada.

FILED DECEMBER 31, 2020

Marquis Aurbach Coffing and Nicholas D. Crosby and Jacqueline V. Nichols, Las Vegas, for Appellant.

McLetchie Law and Margaret A. McLetchie and Alina M. Shell, Las Vegas, for Respondent.

BEFORE THE COURT EN BANC.

OPINION

By the Court, Stiglich, J.:

In this appeal, we consider the scope of our recent opinion in Clark County School District v. Las Vegas Review-Journal (CCSD) , 134 Nev. 700, 429 P.3d 313 (2018). In CCSD , we adopted a burden-shifting test to help courts determine whether information that implicates individual privacy interests is subject to disclosure under the Nevada Public Records Act (NPRA). Id. at 708, 429 P.3d at 320. We held that when a government agency first shows that disclosure implicates a nontrivial privacy interest, the requester must then show that the information sought is likely to further a significant public interest. Id. at 707-08, 429 P.3d at 320 (citing Cameranesi v. U.S. Dep't of Def. , 856 F.3d 626, 637 (9th Cir. 2017) ).

We decided CCSD in the context of a sensitive investigative report, and certain language in that opinion could be read as limiting the case's application to such reports. Today, we clarify that CCSD is not so limited. Courts should apply the test adopted in CCSD whenever the government asserts a nontrivial privacy interest. In the instant case, appellant Las Vegas Metropolitan Police Department (Metro) demonstrated that its officers have a nontrivial privacy interest in their unit assignments. The district court erred in determining they did not. We therefore reverse and remand for consideration of the second step of the CCSD test, that is, whether disclosure of the unit assignments is likely to advance a significant public interest.

FACTS AND PROCEDURAL HISTORY

Respondent Las Vegas Review-Journal (Review-Journal) is Nevada's largest newspaper. In order to fulfill its important function of investigative journalism, the Review-Journal has frequently requested government records, including records that the government has sought to keep confidential.¹ In early 2017, the Review-Journal was investigating how Metro handles sex-trafficking cases. To that end, the Review-Journal submitted an NPRA request for all of Metro's sex-trafficking case files, solicitation and trespass arrest reports, and officers’ names, badge numbers, and unit assignments from 2014 through 2016.²

Metro provided the Review-Journal with many of the requested records, including all officers’ names and badge numbers. However, Metro refused to disclose its officers’ unit assignments.³

The Review-Journal petitioned the district court for a writ of mandamus directing Metro to provide the requested records in their entirety. Metro objected on numerous grounds. As relevant here, Metro argued that it could not disclose officers’ unit assignments because such information would reveal the identities of undercover officers. After a hearing, the district court ordered discovery and meet-and-confer efforts by the parties.⁴

The Review-Journal subsequently narrowed its request to include only patrol officer unit assignments, thereby excluding undercover officers.⁵ Metro asserted, however, that disclosing any unit assignments—even those of patrol officers—would undermine officer safety and reveal covert officers' identities via the process of elimination.⁶

In support of its position, Metro provided declarations by Joseph Lombardo, Sheriff of Clark County and Metro's chief law enforcement officer, and Steve Grammas, President of the Police Protective Association. Both Lombardo and Grammas attested that disclosing patrol officer unit assignments would compromise officer safety by revealing where specific officers worked. Further, they attested that disclosing patrol officer unit assignments could reveal names and locations of officers assigned to covert operations.

After another hearing, the district court granted the Review-Journal's petition in part. In doing so, the court first applied the broad balancing test set forth in Reno Newspapers, Inc. v. Gibbons , 127 Nev. 873, 880, 266 P.3d 623, 628 (2011). The district court concluded that Metro failed to demonstrate that its interest in nondisclosure clearly outweighed the strong presumption of public access. Specifically, the court reasoned that Lombardo's and Grammas' declarations, even if believed, were too speculative to satisfy Metro's burden. Next, the district court applied the CCSD framework and determined that Metro's evidence did not show that the requested records implicate any cognizable privacy interest because Metro's officers are public employees who necessarily interact with the public and the community. The court also determined that the declarations were too speculative to show that disclosing unit assignments would reveal the identities of undercover officers. Accordingly, the district court ordered Metro to disclose patrol officer unit assignments from 2014 through 2016. Metro now appeals.

DISCUSSION

Under the NPRA, government-generated records are presumptively open to public inspection. Gibbons , 127 Nev. at 880, 266 P.3d at 628. This presumption may be rebutted either by an explicit statutory provision making a particular type of record confidential or, under Gibbons , by a "broad balancing of the interests involved," where the government must prove that "its interest in nondisclosure clearly outweighs the public's interest in access." Id. In CCSD , this court adopted a different burden-shifting test for nontrivial privacy claims asserted in response to public records requests, in which any such privacy interest is weighed against the requester's demonstration of a significant public interest in disclosure. 134 Nev. at 708, 429 P.3d at 320.

Here, Metro argues that the district court erred by failing to recognize that Metro's unit assignments implicate a nontrivial privacy interest under CCSD . In response, the Review-Journal argues that the CCSD test only applies to investigative reports. Further, in the Review-Journal's view, the district court's analysis should have ended when it concluded, under Gibbons , that the interest in nondisclosure did not clearly outweigh the public's right to access. Alternatively, the Review-Journal argues that even if the CCSD test applies here, the district court did not abuse its discretion by determining that Metro failed to show the existence of a nontrivial privacy interest.

Standard of review

"We review a district court's grant or denial of a writ petition for an abuse of discretion. However, we review the district court's interpretation of caselaw and statutory language de novo." Las Vegas Metro. Police Dep't v. Blackjack Bonding , 131 Nev. 80, 85, 343 P.3d 608, 612 (2015) (internal citation omitted). "Whether a legally recognized privacy interest is present in a given case is a question of law," Hill v. Nat'l Collegiate Athletic Ass'n, 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633, 657 (1994), which we review de novo, City of Reno v. Reno Gazette-Journal, 119 Nev. 55, 58, 63 P.3d 1147, 1148 (2003).

Whether the CCSD test applies in this case concerns the interpretation of the NPRA and our NPRA jurisprudence and, therefore, is subject to our plenary review. See Blackjack Bonding , 131 Nev. at 85, 343 P.3d at 612. Similarly, the district court's determination that the officers lacked a nontrivial privacy interest is a conclusion of law to which we owe no deference. See Hill , 26 Cal.Rptr.2d 834, 865 P.2d at 657 ; City of Reno, 119 Nev. at 58, 63 P.3d at 1148.⁷

The CCSD framework applies whenever a personal privacy interest may warrant redaction

In CCSD , the Review-Journal requested records related to the Clark County School District's (CCSD's) investigation of allegations of sexual harassment and other inappropriate behavior. CCSD, 134 Nev. at 701, 429 P.3d at 315-16. CCSD provided an initial batch of responsive documents, redacting not only the names of alleged victims, but also of administrators, principals, supervisors, and schools. Id . at 701-02, 429 P.3d at 316. While the Review-Journal agreed that victims’ names could be redacted, it argued that CCSD's redactions "went too far." Id. In the ensuing litigation, CCSD took the position that it "complied with the principles encouraging disclosure" and did not need to release additional information. Id. at 702, 429 P.3d at 316. The district court disagreed and ordered CCSD to release all responsive documents, redacting only the names of victims, students, or support staff. Id. at 702, 429 P.3d at 316-17.

On appeal, we affirmed in part and reversed in part. First, we affirmed "[t]hat part of the district court's order requiring CCSD to disclose the documents," holding the district court did not abuse its discretion under Gibbons ’ broad balancing test. Id. at 706-07, 429 P.3d at 319. We explained that "complete nondisclosure" was inappropriate where redaction would address the relevant privacy concerns. Id. Turning to the appropriate scope of those redactions, we recognized that Nevada law has "established protection of personal privacy interests" and "protects personal privacy interests from unrestrained disclosure under the NPRA." Id. at 708, 429 P.3d at 320.

We then adopted a two-part burden-shifting test used by federal courts to "facilitate[ ] a court's balancing of nontrivial privacy interests against public disclosure." Id. (citing Cameranesi , 856 F.3d at 637 ). Under that test, the government must establish that disclosure would intrude on a personal privacy interest that is nontrivial or that rises above the de minimis level. Id. at 707, 429 P.3d at 320. Upon such a showing, the burden shifts to the requesting party to show that disclosure is likely to advance a significant public interest. Id. at 707-08, 429 P.3d at 320.

Applying this test, we noted that the district court failed to...