CITY OF SPARKS v. BLUTH (CIVIL)

IN THE SUPREME COURT OF THE STATE OF NEVADA

CITY OF SPARKS,

Appellant,

vs.

ERICA BLUTH, AN INDIVIDUAL; AND

CITY OF RENO, A POLITICAL

SUBDIVISION OF THE STATE OF

NEVADA,

Respondents. No. 90244 Appeal from a district court order issuing a writ of mandamus in a Nevada Public Records Act proceeding. Second Judicial District Court, Washoe County; Barry L. Breslow, Judge.

Reversed.

Wesley K. Duncan, City Attorney, and Mariah Northington, Senior Assistant City Attorney, Sparks,

for Appellant City of Sparks.

Karl S. Hall, City Attorney, and Mark W. Dunagan, Deputy City Attorney, Reno,

for Respondent City of Reno.

Luke Andrew Busby, Ltd., and Luke A. Busby, Reno,

for Respondent Erica Bluth.

Ballard Spahr LLP and Colleen E. McCarty and David E. Chavez, Las Vegas, for Amici Curiae Gray Local Media, Inc., d/b/a KVVU-TV and KOLO-TV; Nexstar Media, Inc., d/b/a KLAS-TV; and Scripps Broadcasting Holdings, LLC, d/b/a KTNV-TV and KMCC-TV.

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McLetchie Law and Margaret A. McLetchie and Leo S. Wolpert, Las Vegas, for Amici Curiae Las Vegas Review-Journal, Inc.; Nevada Open Government Coalition; and Nevada Press Association.

Christopher M. Peterson, Las Vegas; Courtney Cross and Blanca Peña Nevarez, Las Vegas,

for Amici Curiae American Civil Liberties Union of Nevada; and Survivor Representation & Advocacy Clinic of UNLV, respectively. Aaron D. Ford, Attorney General, and Jeffrey M. Conner, Deputy Solicitor General, Carson City,

for Amicus Curiae Nevada Attorney General.

Matthew J. Christian, Assistant General Counsel, Las Vegas; Lindsay L. Liddell, Deputy District Attorney, Washoe County; Stephen B. Rye, District Attorney, Lyon County; Jeffry M. Dorocak, City Attorney, Las Vegas; Andy Moore, City Attorney, North Las Vegas,

for Amici Curiae Las Vegas Metropolitan Police Department; Washoe County Sheriff, Darin Balaam; Lyon County Sheriff, Brad Pope; City of Las Vegas; and City of North Las Vegas, respectively.

BEFORE THE SUPREME COURT, EN BANC.

OPINION

By the Court, STIGLICH, J.:

In this appeal, we are asked to determine whether the district court abused its discretion in ordering the disclosure of records pursuant to the Nevada Public Records Act (NPRA) solely because of individual characteristics of the requester. Nevada employs two balancing tests to determine whether a government entity may refuse to disclose records; neither of them contemplate

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the requester's identity or attributes. We therefore reverse the district court's order compelling disclosure of government records.

FACTS AND PROCEDURAL HISTORY

Erica Bluth was pulled over by Officer Tyler Baehr of the Reno Police Department on New Year's Eve. During the stop, Baehr took Bluth's personal phone with him to his patrol vehicle. While he possessed her phone, Baehr accessed her stored images and videos, using his phone to take photographs of intimate materials found there. The Sparks Police Department investigated Baehr for this and other incidents and interviewed Bluth as part of the investigation.¹

Afterward, Bluth filed public records requests with the City of Reno and the City of Sparks pursuant to the NPRA, seeking the following:

1. All records and reports from Sparks Police Case No. 24-6872; i.e. the complete Tiburon record for the case;

2. All bodycam footage from each and every officer involved in the incident or investigating the incident;

3. All communications within the last three years between any City of Reno or City of Sparks employees related to Case. No. 24-6872 or that contain the term

"Erica" and "Bluth."

Reno responded that it had nothing responsive to the first two queries and provided Bluth with a log of 40 emails that were potentially responsive to the third query. Bluth identified 14 emails and requested disclosure, but Reno refused, citing concerns related to the active litigation. Sparks also denied Bluth's request on similar grounds.

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Bluth then petitioned the district court for ex parte alternative writs of mandamus, requesting the compulsory disclosure of any responsive materials from both Reno and Sparks.²The district court consolidated the matters and issued the alternative writ in part, requiring that Reno and Sparks "comply with the records requests insofar as they directly involve [Bluth] only," subject to redaction to protect the integrity of the investigation and the information of other parties. In so ordering, the district court noted that it could not "ignore that the requester herself is an alleged victim."

Otherwise, however, the district court found that "the government's interest in nondisclosure clearly outweigh[s] the public's interest in access to the requested records" and denied Bluth's petition to the extent that it requested records that did not directly involve Bluth. Sparks successfully moved to stay enforcement of the alternative writ and now appeals.³

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DISCUSSION

The sole issue on appeal is whether the district court erred in ordering Sparks to disclose records to Bluth because she was a victim.⁴Sparks argues that the requester's identity and characteristics are not factors that a district court should consider when balancing the government's interest in confidentiality against the public's interest in access and that the district court therefore abused its discretion.

We review a district court's grant of a petition for a writ of mandamus ordering access to public records for an abuse of discretion. See Conrad v. Reno Police Dep't, 139 Nev. 126, 130, 530 P.3d 851, 855 (2023). A district court abuses its discretion when it acts "in clear disregard of the guiding legal principles." Gunderson v. D.R. Horton, Inc., 130 Nev. 67, 80, 319 P.3d 606, 615 (2014) (quoting Bergmann v. Boyce, 109 Nev. 670, 674, 856 P.2d 560, 563 (1993), superseded by statute on other grounds as recognized in In re DISH Network Derivative Litig., 133 Nev. 438, 451 n.6, 401 P.3d 1081, 1093 n.6 (2017)).

Under the NPRA, all public records produced by a government entity are subject to public inspection unless exempted by statute or privacy or law enforcement confidentiality interests outweigh the public interest in Association; American Civil Liberties Union of Nevada and Survivor Representation & Advocacy Clinic of UNLV; the Attorney General of Nevada; and Las Vegas Metropolitan Police Department, Washoe County Sheriff, Lyon County Sheriff, City of Las Vegas, and City of North Las Vegas.

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disclosure. Reno Newspapers, Inc. v. Washoe Cnty. Sheriff, 126 Nev. 211, 212,

234 P.3d 922, 923 (2010); see NRS 239.010(1) (listing statutes providing for nondisclosure). When a statute authorizing nondisclosure is not directly on point, Nevada courts employ two tests to see if a government entity may withhold records.

First, the government entity may refuse to disclose records if its interest in nondisclosure clearly outweighs the public interest in openness. Conrad, 139 Nev. at 129-30, 530 P.3d at 855. When determining a law enforcement interest in confidentiality, courts may consider the pendency, or anticipated pendency, of criminal proceedings; the presence of confidential sources or investigative techniques; the possibility that disclosure would deny someone a fair trial; and the "potential jeopardy to law enforcement personnel"

that disclosure may cause. Donrey of Nev., Inc. v. Bradshaw, 106 Nev. 630, 636, 798 P.2d 144, 148 (1990), superseded by statute on other grounds as stated in Conrad, 139 Nev. at 131, 530 P.3d at 856. Claims of a law enforcement interest in nondisclosure must be supported by evidence; bare or generalized assertions will not suffice. L.V. Rev.-J., Inc. v. L.V. Metro. Police Dep't, 139 Nev. 69, 81, 526 P.3d 724, 736 (2023). And specific attributes of the public interest in access and openness must likewise be considered and cannot be summarily disregarded. Id. at 82, 526 P.3d at 736.

Nondisclosure may also be appropriate if releasing the records would implicate nontrivial privacy concerns that outweigh the public interest in disclosure. Clark Cnty. Sch. Dist. v. L.V. Rev.-J., 134 Nev. 700, 707-08, 429 P.3d 313, 320-21 (2018). If a nontrivial privacy interest is implicated, the requester must show the significance of the public interest disclosure would advance. Id. When applying the privacy balancing test, courts weigh the

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personal privacy interest of individuals named in government records against public interests in disclosure. Id.

Here, the district court applied the government-interest and the privacy balancing tests and concluded that both militated in favor of nondisclosure. Despite those findings, the district court found that it "would be remiss to permit [Sparks and Reno] to withhold all records in their entirety."

The district court also concluded it could not "ignore that [Bluth] herself is an alleged victim." Based on those determinations, it ordered Sparks and Reno to produce the requested records that directly relate to Bluth. The district court stated that its goal was to "allow [Bluth] to gather information as it relates to her involvement in the underlying investigation as an alleged victim."

We conclude that the district court abused its discretion in requiring Sparks to provide Bluth the records requested. Despite applying the government-interest and privacy balancing tests and finding that nondisclosure was warranted, the district court ordered Sparks to turn over certain records to Bluth in light of her status as a victim. Neither balancing test, however, instructs the court to consider the characteristics of the requester as part of its analysis. Nor should they: both balancing tests are concerned with the public's interest in certain government records, not an individual's interest in those records. We have held that a requester's motive is irrelevant as to whether the government is obligated to disclose records, see L.V. Metro. Police Dep't v. Blackjack Bonding, Inc., 131 Nev. 80, 84 n.2, 343 P.3d 608, 611 n.2 (2015), and we now similarly hold that the requester's

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characteristics do not bear on the public interest in obtaining public records.⁵ Cf. U.S. Dep't of Just. v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 771 (1989) ("Except for cases in which the objection to disclosure is based on a claim of privilege and the person requesting disclosure is the party protected by the privilege, the identity of the requesting party has no bearing on the merits of [an] FOIA request."). Because the district court considered Bluth's personal attributes as the requesting party in mandating disclosure—and because Bluth's characteristics were dispositive in the district court's decision making—we conclude that it contravened both balancing tests and thus abused its discretion. We therefore reverse and remand for proceedings consistent with this opinion.⁶

CONCLUSION

When a district court considers whether to order a governmental entity to disclose government records, it balances government and privacy interests in nondisclosure with the public interest in openness. The district court should not, however, consider attributes of the individual requesting the

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records. Here, Sparks was ordered to provide certain records to Bluth simply because of a personal characteristic of Bluth. The district court otherwise determined that the balancing tests merited nondisclosure. The district court thus abused its discretion in so ordering, and we reverse. Stiglich, J.

We concur:

Herndon, C.J.

Pickering, J.

Parraguirre, J.

Bell, J.

Cadish, J.

Lee, J.