Key Points

  • The Nevada Supreme Court, sitting en banc, unanimously reversed a district court order requiring the City of Sparks to disclose investigative records to Erica Bluth because she was an alleged victim.
  • The government-interest balancing test and the privacy balancing test under the Nevada Public Records Act both exclude the identity and characteristics of the requester.
  • The decision extends Blackjack Bonding (2015), which held a requester's motive irrelevant, to the requester's characteristics, citing U.S. Department of Justice v. Reporters Committee for Freedom of the Press.
  • The court declined Sparks' request for a categorical rule that investigative files are never subject to disclosure, saying exemptions are for the legislature, and held Sparks' statutory-exemption argument waived.
  • The court did not decide whether Bluth could waive her own privacy interest, because she cannot waive the privacy interests of other victims, witnesses, and the officer.

The Nevada Supreme Court on Thursday reversed an order that required the City of Sparks to give a woman police investigative records because she was an alleged victim in the case, holding that courts weighing public records requests may not consider who is asking.

Justice Stiglich wrote for a unanimous court sitting en banc, with all seven justices participating. The two tests Nevada courts use to decide whether an agency may withhold records are "concerned with the public's interest in certain government records, not an individual's interest in those records," the opinion said. Chief Justice Herndon and Justices Pickering, Parraguirre, Bell, Cadish and Lee joined the opinion.

The ruling extends a 2015 decision, Las Vegas Metropolitan Police Department v. Blackjack Bonding, in which the court held that a requester's motive is irrelevant under the Nevada Public Records Act, the state law that opens most government records to public inspection. On Thursday the court added "that the requester's characteristics do not bear on the public interest in obtaining public records." A person with a personal stake in a file, including an alleged victim, therefore stands in the same position as any other requester when a court applies the two tests.

The case arose from a traffic stop. According to the opinion, Officer Tyler Baehr of the Reno Police Department pulled Erica Bluth over on New Year's Eve and took her personal phone to his patrol vehicle. While he had the phone, Baehr accessed her stored images and videos and used his own phone to photograph intimate materials, the court wrote.

The Sparks Police Department investigated Baehr for that and other incidents and interviewed Bluth. The U.S. Attorney's Office has criminally charged Baehr, and a trial has been scheduled, the opinion said. A civil suit that Bluth and another alleged victim brought against him settled earlier this year.

Bluth then asked both cities for the full file in Sparks police case No. 24-6872, body camera footage from every officer involved, and three years of city employees' communications about the case or containing her name. Reno said it had nothing responsive to the first two requests and refused to release 14 emails Bluth chose from a log of 40, citing the active litigation, and Sparks denied her requests on similar grounds.

Bluth petitioned the Second Judicial District Court in Washoe County for ex parte alternative writs of mandamus. Judge Barry L. Breslow found that "the government's interest in nondisclosure clearly outweigh[s] the public's interest in access to the requested records," and the district court concluded that the privacy test also favored withholding. The court nonetheless ordered both cities to "comply with the records requests insofar as they directly involve [Bluth] only," subject to redactions.

The district court wrote that it "would be remiss to permit [Sparks and Reno] to withhold all records in their entirety" and that it could not "ignore that the requester herself is an alleged victim." Sparks obtained a stay of the order and appealed, and Reno filed briefs joining Sparks' arguments.

Justice Stiglich explained that Nevada courts apply two balancing tests when a statute authorizing nondisclosure is not directly on point. Under the first, an agency may withhold records if its interest in nondisclosure clearly outweighs the public interest in openness. Under the second, courts weigh the privacy interests of people named in the records against the public interest in disclosure.

The district court applied both tests, found that each favored nondisclosure, and then ordered disclosure because of Bluth's status as a victim, the Supreme Court said. "Neither balancing test, however, instructs the court to consider the characteristics of the requester as part of its analysis," Justice Stiglich wrote. Because Bluth's characteristics were "dispositive" below, the court concluded that the district court "contravened both balancing tests and thus abused its discretion," a standard met when a court acts "in clear disregard of the guiding legal principles."

The court cited the U.S. Supreme Court's 1989 decision in U.S. Department of Justice v. Reporters Committee for Freedom of the Press, which said that, except where the requester is the party protected by a privilege the agency invokes, "the identity of the requesting party has no bearing on the merits of [an] FOIA request."

The justices declined to decide Bluth's argument that her identity matters because she can waive her own privacy interest in the records. The point would not change the outcome, the court wrote, because "she cannot waive the privacy interests of the other victims, witnesses, and Baehr himself."

The court also rejected Sparks' request for a blanket rule that police investigative files cannot be obtained under the records law because confidentiality will always prevail. Sparks "presents no compelling reasons for what would effectively rewrite our NPRA jurisprudence," Justice Stiglich wrote, adding that "creating exemptions to the NPRA falls within the legislature's purview, not ours." The court held waived a separate argument that a statute exempts investigative files, because the cities did not raise it below.

Bluth had cross-appealed, seeking more records, but moved to dismiss that appeal after she "in essence obtained everything she requested from the City of Reno" through a concurrent federal suit, and the court dismissed it in March.

News organizations, open-government and press groups, the American Civil Liberties Union of Nevada, a UNLV survivor advocacy clinic, the Nevada Attorney General, and several police agencies and cities filed friend-of-the-court briefs.

Sparks was represented by City Attorney Wesley K. Duncan, and Reno by City Attorney Karl S. Hall. Colleen E. McCarty of Ballard Spahr LLP represented broadcaster amici Gray Local Media, Nexstar Media and Scripps Broadcasting Holdings.

The case, City of Sparks v. Bluth, No. 90244, now returns to the Washoe County district court, which the Supreme Court directed to conduct proceedings consistent with its opinion.