LVMPD v. Blackjack Bonding

131 Nev., Advance Opinion I 0
IN THE SUPREME COURT OF THE STATE OF NEVADA
LAS VEGAS METROPOLITAN POLICE No. 62864
DEPARTMENT; AND DOUGLAS C.
GILLESPIE,
Appellants,
vs.
BLACKJACK BONDING, INC.,
Respondent.
BLACKJACK BONDING, INC., No, 63541
Appellant,
vs.
LAS VEGAS METROPOLITAN POLICE FILED
DEPARTMENT; AND DOUGLAS C.
GILLESPIE, MAR 0 5 2015
Respondents.
Consolidated appeals from a district court order granting in
part a writ of mandamus to compel compliance with a public records
request and a post-judgment order denying a motion for attorney fees and
costs. Eighth Judicial District Court, Clark County; Jerry A. Wiese,
Judge.
Affirmed in part, reversed in part, and remanded.
Olson, Cannon, Gormley, Angulo & Stoberski and Thomas D. Dillard, Jr.,
Las Vegas,
for Las Vegas Metropolitan Police Department and Douglas C. Gillespie.
Armstrong Teasdale, LLP, and Tracy A. DiFillippo and Conor P. Flynn,
Las Vegas,
for Blackjack Bonding, Inc.
Josh M. Reid, City Attorney, and Michael J. Oh, Assistant City Attorney,
Henderson,
for Amicus Curiae City of Henderson.
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Staci J. Pratt and Allen Lichtenstein, Las Vegas,
for Amicus Curiae American Civil Liberties Union of Nevada Foundation.
BEFORE PARRAGUIRRE, SAITTA and PICKERING, JJ.
OPINION
By the Court, SAITTA, J.:
The Nevada Public Records Act (NPRA) requires
governmental agencies to make nonconfidential public records within their
legal custody or control available to the public. NRS 239.010. It also
entitles a requester who prevails in a lawsuit to compel the production of
public records to recover reasonable attorney fees and costs. NRS 239.011.
In the present case, a private telecommunications provider
contracted with Clark County to provide telephone services to inmates at a
county jail and to make records of the inmates' calls available to the
governmental agency operating the jail. At issue here is whether (1) this
information was a public record within the agency's legal custody or
control and thus subject to disclosure and (2) the requester of this
information was entitled to recover attorney fees and costs. We hold that
this information is a public record because it concerns the provision of a
public service and is within the agency's legal control. We also hold that
the requester was a prevailing party and thus entitled to recover attorney
fees and costs pursuant to NRS 239.011.
FACTUAL AND PROCEDURAL HISTORY
In 2011, Clark County and CenturyLink, a private
telecommunications provider, entered into a contract for the provision of
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inmate telephone services for the Clark County Detention Center (CCDC).
Under the contract, CenturyLink provides a telephone system that could
generate records of inmate telephone calls "for use in administrative and
investigative purposes." The records include, among other details, the
number dialed, the call duration, the station originating the call, the call's
cost, and the method of call termination. The system provides CCDC
personnel with access to historical detail records containing multiple types
of data, including calls to specified destination numbers, calls from specific
inmates, completed and incomplete calls, and calls from specific inmate
telephones. It allows the CCDC system administrators to print reports
based on recorded data.
In 2012, Blackjack Bonding, Inc., made a public records
request to the Las Vegas Metropolitan Police Department (LVMPD), the
governmental entity that runs the CCDC. In the request, Blackjack
sought "all call detail records from telephones used by [CCDC]
inmates . . . for 2011 and 2012"—specifically, "a call log that details the
description of the phone used. . . , the call start time, dialed number,
complete code, call type, talk seconds, billed time, cost, inmate id, and last
name." Additionally, Blackjack asked for "a list of all phones used by
inmates and the phone description, including whether the phone is used to
place . . . free calls, collect calls, or both." Blackjack subsequently
narrowed the scope of the requested information to calls to "all telephone
numbers listed on the various bail bondS agent jail lists posted in CCDC in
2011 and 2012" and conveyed that it understood "that the inmate names
and identification numbers may need to be redacted." LVMPD denied
Blackjack's request, claiming that it did not possess the records.
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Blackjack then petitioned the district court for a writ of
mandamus to compel LVMPD to provide the requested records. In
support of its petition, Blackjack submitted an affidavit from its president
stating that before making the public records request at issue, Blackjack
asked CenturyLink to provide call detail records regarding CCDC inmate
calls to Blackjack's number and received this data on the day that it made
the request. The district court granted in part Blackjack's request for
mandamus relief, stating that (1) the requested records were public
records that LVMPD had a duty to produce, (2) the inmates' names and
identification numbers must be redacted before production, and (3)
Blackjack would pay the costs associated with the production.
Blackjack also made a motion for attorney fees and costs. The
district court denied Blackjack's motion because it found that (1) the order
granting writ relief in part required Blackjack to pay the costs associated
with the production of the records and precluded LVMPD from paying any
expenses, including Blackjack's attorney fees and costs, and (2) Blackjack
was not a prevailing party.
LVMPD appealed the district court's order granting partial
writ relief to Blackjack. Blackjack appealed the district court's denial of
its motion for attorney fees and costs.
DISCUSSION
The district court did not err or abuse its discretion in granting in part
Blackjack's petition for a writ of mandamus
Pursuant to the NPRA, the public records and public books of
a governmental entity are subject to inspection by the public:
[A]ll public books and public records of a
governmental entity, the contents of which are not
otherwise declared by law to be confidential, must
be open at all times during office hours to
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inspection by any person, and may be fully copied
or an abstract or memorandum may be prepared
from those public books and public records.'
NRS 239.010(1) (2011). If the public record contains confidential
information that can be redacted, the governmental entity with legal
custody or control of the record cannot rely on the confidentiality of that
information to prevent disclosure of the public record:
A governmental entity that has legal custody or
controlS of a public book or record shall not deny a
request made pursuant to [NRS 239.010(1)1 . .. on
the basis that the requested public book or record
contains information that is confidential if the
governmental entity can redact, delete, conceal or
separate the confidential information from the
information included in the public book or record
that is not otherwise confidential.
NRS 239.010(3) (2011).
LVMPD argues that the requested records are not public
records subject to disclosure because they (1) do not concern an issue of
public interest, (2) involve communications between private entities, and
(3) are not in LVMPD's legal custody or contro1. 2 Moreover, LVMPD
contends that it need not produce the requested records because Public
1-We apply the version of the NPRA that was in effect in 2012 when
Blackjack made its public records request. Thus, we do not address the
subsequent amendments to the NPRA.
2 LVMPD also argues that it had no duty to fulfill Blackjack's records
request because Blackjack purportedly acted to serve a business interest.
This argument is without merit because (1) LVMPD did not provide
evidence to support its assertion about Blackjack's motive and (2) the
NPRA does not provide that a requester's motive is relevant to a
government entity's duty to disclose public records. See NRS 239.010
(2011).
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Employees' Retirement System v. Reno Newspapers, Inc. (PERS), 129 Nev.
, 313 P.3d 221 (2013), prevents it from having to create a new
document to satisfy a public records request. Alternatively, LVMPD
argues that if the requested records are public records, then a balancing-
of-competing-interests test weighs in favor of nondisclosure because of the
inmates' privacy interests and the burdens associated with production.
Blackjack argues that because LVMPD can acquire the
requested information from CenturyLink at no cost, the information is
within LVMPD's control. Blackjack also contends that the balancing-of-
competing-interests test does not preclude production of the documents
because LVMPD failed to offer a legitimate interest for denying the
request for disclosure and because Blackjack resolved any privacy
concerns by agreeing to redact the inmates' names and identification
numbers.
Standard of review
We review a district court's grant or denial of a writ petition
for an abuse of discretion. DR Partners v. Bd. of Cnty. Comm'rs, 116 Nev.
616, 621, 6 P.3d 465, 468 (2000). However, we review the district court's
interpretation of caselaw and statutory language de novo. Liu v.
Christopher Homes, LLC, 130 Nev. „ 321 P.3d 875, 877-78 (2014)
(reviewing de novo the meaning and application of caselaw); Reno
Newspapers, Inc. v. Haley, 126 Nev. 211, 214, 234 P.3d 922, 924 (2010)
(reviewing de novo issues of statutory construction).
LVMPD has a duty to provide nonconfidential public records over
which it has legal custody or control
Here, neither party disputes that LVMPD is a governmental
entity subject to the NPRA. Therefore, we consider whether the requested
information is a public record subject to LVMPD's legal custody or control.
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The requested information is a public record
NRS 239.001(4) mandates public access to "records relating to
the provision of those [public] services" that are provided by "private
entities" on behalf of a governmental entity. "[P]ublic service" has been
broadly defined as "a service rendered in the public interest." Merriam-
Webster's Collegiate Dictionary 942 (10th ed. 2000); see also V & S Ry.,
LLC v. White Pine Cnty., 125 Nev. 233, 239-40, 211 P.3d 879, 883 (2009)
(referring to a dictionary to ascertain the plain meaning of statutory
language); Black's Law Dictionary 1352 (9th ed. 2009) (defining "public
service" as "[a] service provided or facilitated by the government for the
general public's convenience and benefit").
Often, the "use of a telephone is essential for a pretrial
detainee to contact a lawyer, bail bondsman or other person in order to
prepare his case or . . . exercise his [constitutional] rights." Johnson v.
Galli, 596 F. Supp. 135, 138 (D. Nev. 1984) (finding that a detainee's
reasonable access to a telephone is protected by the First Amendment).
Nevada law protects a detainee's right to use a telephone while detained
by providing that "[ably person arrested has the right to make a
reasonable number of completed telephone calls from the police station or
other place at which the person is booked." NRS 171.153(1) (emphasis
added). "A reasonable number of calls must include one completed call to
a friend or bail agent. . . ." NRS 171.153(2). NRS 171.153 does not limit a
detainee's right to make telephone calls when a private entity provides the
telephone services that are to be used by the detainee.
Here, the inmate telephone services provided by CenturyLink
assist LVMPD's facilitation of detainees' statutory rights to use a
telephone. The fact that telephone calls between private individuals are
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detailed in the call histories does not alter the public service at issue
because NRS 171.153(2) contemplates detainees making telephone calls to
private parties. Therefore, these calls relate to the provision of a public
service and the public has an interest in having governmental entities
honor inmates' statutory rights. See NRS 228.308 (defining "[p]ublic
interest," albeit in the context of consumer protection, as "rights" that
"arise" from "constitutions, court decisions and statutes"). Thus, the
information that Blackjack requested is a public record because it relates
to the provision of a public service. 3
The requested information was within LVMPD's legal control
Since the information that Blackjack requested was a public
record, we now address whether it was in LVMPD's legal custody or
control. This issue is relevant because a governmental entity's duty to
disclose a public record applies only to records within the entity's custody
or control. See MRS 239.010(4) (2011).
Here, substantial evidence indicates that LVMPD has legal
control over the requested information. Under the contract for inmate
telephone services, CenturyLink provides a telephone system that could
generate "call detail records for use in administrative and investigative
purposes." Thus, this contract indicates that the requested information
could be generated by the inmate telephone system that CenturyLink
3 Because the information that Blackjack requested is a public record
pursuant to NRS 239.001(4), we decline to address whether it would also
be a public record under NAC 239.091.
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provides and could be obtained by LVMPD. 4 Therefore, the information is
in LVMPD's legal control.
The recent PERS opinion does not preclude the duty to produce the
requested information
LVMPD argues that PERS precludes it from having to ask
CenturyLink to generate a new document that does not yet exist and thus
excuses it from fulfilling Blackjack's request.
In PERS, this court considered "the applicability of [the
NPRAI to information stored in the individual files of retired employees
that are maintained by [an agency]." 129 Nev. at , 313 P.3d at 222.
After concluding that such information must be disclosed, this court held
that to the extent that a records request required "PERS to create new
documents or customized reports by searching for and compiling
information from individuals' files or other records," the NPRA did not
require their production and disclosure. Id. at , 313 P.3d at 225.
The scope of the holding in PERS is gleaned from the facts of
that case. See Liu, 130 Nev. at , 321 P.3d at 878-80 (providing that the
meaning of an opinion is ascertained by reading it as a whole and by
considering the authorities on which it relies and the facts and procedure
involved). In PERS, this court did not approve of the agency having to
4 NAC 239.620 does not affect our holding that substantial evidence
shows that LVMPD had legal custody of the requested records for two
reasons. First, NAC 239.620 defines "legal custody" and does not address
"legal control"; thus, it is inapposite to our holding. Second, NAC 239.620
applies to state agencies, a type of governmental entity that LVMPD has
not demonstrated itself to be. See NAC 239.690 (defining a state agency
as a part of the executive branch of the Nevada state government).
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"search[ ] for and compil[e] information from individuals' files or other
records." 129 Nev. at , 313 P.3d at 225. PERS did not address the
situation where an agency had technology to readily compile the requested
information. See id. Instead, when an agency has a computer program
that can readily compile the requested information, the agency is not
excused from its duty to produce and disclose that information. See State,
ex rel. Scanlon v. Deters, 544 N.E.2d 680, 683 (Ohio 1989), overruled on
other grounds by State ex rel. Steckman v. Jackson, 639 N.E.2d 83, 89
(Ohio 1994).
Unlike PERS, the record in this case reveals that Blackjack's
request does not involve searching through individual files and compiling
information from those files. Here, the inmate telephone services contract
and the evidence showing that CenturyLink had previously fulfilled a
similar records request demonstrate that CenturyLink had the capacity to
readily produce the requested information. Moreover, during a hearing on
the writ petition, LVMPD admitted through its attorney that CenturyLink
could produce the requested information. Therefore, the requested public
records are readily accessible and PERS does not prevent their disclosure.
The balancing-of-competing-interests test does not preclude
disclosure
The balancing-of-competing-interests test is employed "when
the requested record is not explicitly made confidential by a statute" and
the governmental entity nonetheless resists disclosure of the information.
Reno Newspapers, Inc. v. Gibbons, 127 Nev. , 266 P.3d 623, 627
(2011). This test weighs "the fundamental right of a citizen to have access
to the public records" against "the incidental right of the agency to be free
from unreasonable interference." DR Partners v. Bd. of Cnty. Comm'rs,
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116 Nev. 616, 621, 6 P.3d 465, 468 (2000) (internal quotations omitted).
"The government bears the burden of showing that its interest in
nondisclosure clearly outweighs the public's interest in access." PERS,
129 Nev. at , 313 P.3d at 225 (internal quotations omitted).
Here, LVMPD fails to satisfy its burden under the test.
Without explanation, LVMPD contends that the request compromises the
private interests of inmates and is burdensome. However, LVMPD cannot
deny a public records request on the basis of confidentiality if it "can
redact, delete, conceal or separate the confidential information from the
information included in the public book or record." MRS 239.010(3) (2011).
Furthermore, Blackjack agreed to the redaction of inmate names and
numbers from the requested information, and the district court's amended
order required the redaction of the inmate names and identification
numbers. Thus, LVMPD fails to demonstrate that the requested
disclosure would compromise any privacy interests.
Moreover, the district court mitigated any burdens associated
with the request by requiring Blackjack to pay the costs associated with
the production of the requested documents. 5 Thus, LVMPD fails to
demonstrate that the requested disclosure is• financially burdensome.
Therefore, the balancing-of-competing-interests test does not preclude its
duty to produce the requested information.
5 Thedistrict court's requirement that Blackjack pay LVMPD's costs
of production is consistent with MRS 239.052(1) (2011), which provides
that "a governmental entity may charge a fee for providing a copy of a
public record. [that shall] not exceed the actual cost to the
governmental entity" of producing the record.
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The district court abused its discretion by refusing to award reasonable
attorney fees and costs to Blackjack
In its challenge to the denial of its motion for attorney fees
and costs, Blackjack disputes the district court's findings that Blackjack
was not a prevailing party and that the prior order granting writ relief in
part precluded LVMPD from having to pay Blackjack's attorney fees and
costs.
Standard of review
We review a district court's decision regarding an award of
attorney fees or costs for an abuse of discretion. Albios v. Horizon
Communities, Inc., 122 Nev. 409, 417, 132 P.3d 1022, 1027-28 (2006)
(reviewing an award of attorney fees for an abuse of discretion); Vill.
Builders 96, L.P. v. U.S. Labs., Inc., 121 Nev. 261, 276, 112 P.3d 1082,
1092 (2005) (reviewing an award of costs for an abuse of discretion).
An abuse of discretion can occur when the district court bases
its decision on a clearly erroneous factual determination or disregards
controlling law. NOLM, LLC v. Cnty. of Clark, 120 Nev. 736, 739, 100
P.3d 658, 660-61 (2004) (holding that relying on factual findings that "are
clearly erroneous or not supported by substantial evidence" can be an
abuse of discretion (internal quotations omitted)); Bergmann v. Boyce, 109
Nev. 670, 674, 856 P.2d 560, 563 (1993) (holding that a decision made "in
clear disregard of the guiding legal principles" can be an abuse of
discretion).
NRS 239.011 entitles a prevailing requester to recover attorney fees
and costs
NRS 239.011 (2011) provides that "NI' the requester prevails,
the requester is entitled to recover his or her costs and reasonable
attorney's fees in the proceeding from the governmental entity whose
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officer has custody of the book or record." It does not preclude a prevailing
requester from recovering costs when the requester is to pay the agency
for the expenses associated with the production. See id. Thus, by its plain
meaning, this statute grants a requester who prevails in NPRA litigation
the right to recover attorney fees and costs, without regard to whether the
requester is to bear the costs of production. 6
The district court abused its discretion in failing to find that
Blackjack was a prevailing party
A party prevails "if it succeeds on any significant issue in
litigation which achieves some of the benefit it sought in bringing suit."
Valley Elec. Ass'n v. Overfield, 121 Nev. 7, 10, 106 P.3d 1198, 1200 (2005)
(emphasis added) (internal quotations omitted). To be a prevailing party,
a party need not succeed on every issue. See Hensley v. Eckerhart, 461
U.S. 424, 434 (1983) (observing that "a plaintiff [can be] deemed
'prevailing' even though he succeeded on only some of his claims for
relief').
Here, the district court ordered LVMPD to produce nearly all
of the information that Blackjack sought in its petition for a writ of
mandamus. Since the record demonstrates that Blackjack obtained a writ
compelling the production of the telephone records with CCDC's inmates'
identifying information redacted, it succeeded on a significant issue and
achieved at least some of the benefit that it sought. Thus the district court
6 To the extent that the parties raise policy arguments that conflict
with NRS 239.011's plain meaning, they are without merit and do not
alter our analysis. See Williams v. United Parcel Servs., 129 Nev. „
302 P.3d 1144, 1147 (2013) (refusing to deviate from the plain meaning of
a statute and rejecting arguments that would require the court to read
additional language into the statute).
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abused its discretion by relying on the clearly erroneous finding that
Blackjack was not a prevailing party. See NOLM, LLC, 120 Nev. at 739,
100 P.3d at 660-61.
Blackjack was a prevailing party and is entitled to recover
attorney fees and costs associated with its efforts to secure access to the
telephone records, despite the fact that it was to pay the costs of
production. See NRS 239.011 (2011). Accordingly, we reverse the district
court's order denying Blackjack's motion for attorney fees and costs and
remand the matter for the district court to enter an award for reasonable
attorney fees and costs consistent with this opinion. 7 See DR Partners,
116 Nev. at 629, 6 P.3d at 473 (remanding a case where a public records
requester prevailed "for an award to the [requester] of attorney's fees and
costs pursuant to NRS 239.011").
J.
Saitta
J.
Parraguirre
, J.
7 We have considered the parties' remaining arguments, including
those based on other jurisdictions' public records caselaw and the NPRA's
legislative history, and conclude that they are without merit.
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