The New York Times, July 13, 1975
Two news organizations are among those suing the Las Vegas Metropolitan Police Department claiming that government agency inhibits the flow of information by charging excessive and illegal fees for public records.
I know a little bit about this kind of litigation, and not just because I am a journalist who over the decades literally has filed hundreds of public records requests (including one for my own Las Vegas water records). Why? While still in law school, I brought a lawsuit like that against my New Jersey hometown–a half-century ago. I prevailed, too.
But rather than limit my case to arcane interpretations of state law, I had added a grandiose claim. Excessive fees many times the actual cost of producing the records violated the Due Process Clause of the U.S. Constitution’s 14th Amendment. This had long been interpreted–even back then–as requiring that agencies of state government have a rational and fair basis for the actions it takes. Put another way, my argument was this: Unless the charge was expressly authorized to raise revenue–like, say, a sales or income tax–the fee had to be related to the cost of whatever service was being provided.
My case irritated some of the locals and got media attention, including an article in The New York Times (see nearby image). But before the matter went to trial, the governing body of my hometown, Haddonfield, N.J., backed down and amended its laws to reduce the cost of public record copies by upwards of 90%. There are lessons here for Las Vegas.
The Vegas case was brought by the American Civil Liberties Union of Nevada, which seems to have done most of the legal heavy lifting. Other plaintiffs are two non-profit media outlets–The Nevada Independent and the Marshall Project, which focuses on criminal justice investigations from its base in New York City–and the Edgar Flores Law Firm in Las Vegas, which has brought civil cases against Metro in the past.
The litigation deals with a number of requests for public records concerning police investigations and altercations with the public. These include documents and especially police bodycam video that plaintiff say would conflict greatly with police press releases. Metro charges from $73 to $87 per hour for its Public Records Unit to review the material for release, and has been sending bills as high as $2,766 for this work. According to the lawsuit, the cops also routinely violate statutory time limits to produce the requested material.
The Nevada Public Records Act states that only an “actual cost” can be charged, defined this way:
“Actual cost” means the direct cost incurred by a governmental entity in the provision of a public record, including, without limitation, the cost of ink, toner, paper, media and postage. The term 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.
The plaintiffs argue that since Metro already has a staffed office to review these requests, this language means that only the marginal cost of the material–photocopying, CDs, video cassettes–can be charged and not the labor or research involved.
This is certainly a reasonable argument, and indeed, in many states labor is not added to the cost of research and copying. But I wouldn’t end there. To me, the constitutional argument is so much more compelling.
Back in 1975–long before becoming New To Las Vegas–I had finished my first year at Rutgers Law School, about to switch to part-time to accommodate a full-time job as a reporter with the Associated Press in Philadelphia. I was still living where I grew up, in Haddonfield, a leafy well-to-do suburb then of about 13,000 residents across the river in South Jersey. Founded in 1713, Haddonfield is nearly 200 years older than Las Vegas, which was founded in 1905. But the history of the two places shared an interesting parallel. Las Vegas pretended for decades to ignore the influence of organized crime in the local casino industry. Haddonfield downplayed for the longest time the fact that its Quaker founder, Elizabeth Haddon (1680-1762), owned a slave who outlived her and was not even freed in her will.
The town name may ring a bell for some as the fictional Illinois venue of the “Halloween” movie franchise of horror films. They were co-written and produced by the pioneering Debra Hill (1950-2005), who was two years ahead of me at Haddonfield Memorial High School.
But I digress. Haddonfield recently had re-adopted a fee of $1.50 per page for photocopies of most public records (video tapes did not exist then and bodycams were positively futuristic). I thought this was outrageous given that actual cost of coping documents–machine rental, paper, toner, etc.–was only 3 cents a page, which the Haddonfield government eventually acknowledged after I came up with the documents. Even adding labor, which New Jersey law barred, the cost was less that six cents per page.
New Jersey law set no maximum fee schedule. Lots of towns in New Jersey had fee schedules like this. So my hope was that a lawsuit might force a wholesale reduction in copying costs across the state, which at the time had terrible public records laws. I enlisted two of my fine Rutgers law professors, Arthur N. Frakt and James J. Seeley III, to represent me pro bono as sort of a work study project. They taught me well. With their guidance, the complaint and brief were pretty much written by me. They carefully edited them, got the ACLU’s New Jersey chapter to add its imprimatur, added their names and filed the lawsuit in New Jersey Superior Court.
That was after I had gone up to Borough Hall and paid $9.00 for six pages of records. You do have to show some financial harm.
While the pleadings talked about freedom of information and the First Amendment and all that other sexy stuff, the core argument was the 14th Amendment due process claim against arbitrary and capricious action by state governments (identical language in the Fifth Amendment applies to the Federal Government). This was not a novel legal theory at all. As early as 1904, the U.S. Supreme Court, in a case called Postal Telegraphic-Cable Co. v. Borough of Taylor, had struck down a Pennsylvania’s town’s effort to raise money by charging high fees for “licensing” telegraph poles. And a year earlier, even the Nevada Supreme Court, in a case out of Reno called State v. Boyd, squarely held that a Nevada state government agency could not levy a fee that dwarfed the cost of the service provided.
There were plenty of court rulings holding that 10 times actual cost was arbitrary and capricious. So to my lawyers and me, 50 times actual cost seemed like a slam dunk.
My complaint about photocopying fees, set forth in a letter by me to the Borough Commission, occasioned a fair amount of local ire. At a Commission meeting before I sued, Haddonfield Mayor William W. Reynolds Jr. said I was issuing “barbaric yawp.” Reynolds was an erudite fellow, and I think that was a reference to a famous line in the free-verse poetry of Walt Whitman (1819-1892), who is buried just a few miles from Haddonfield: “I sound my barbaric yawp over the roofs of the world.” It certainly was not intended as a compliment (although later as a soccer referee for 20 years, I experienced far worst from parents along the sidelines). But I was happy to be heard with some bite.
What happened? The Superior Court set my lawsuit for a quick hearing. But then Haddonfield lawyers realized they could moot us out of court simply by lowering the fee schedule. Less than a month after my lawsuit was filed, the Haddonfield Borough Commission introduced a new measure to lower the cost to just 10 cents a page for multiple copying. That was a whopping 93% reduction. While I would have preferred a court ruling and a binding precedent, Haddonfield was the only defendant. I got pretty much got the relief I was seeking. So we dismissed the suit.
And, oh, yeah, Haddonfield sent me a $9 refund check ($56 in today’s money).
While the concepts are the same, my case was small beer compared with what’s going on in Las Vegas. There’s a hearing in the case scheduled for tomorrow. The public record at this writing does not reflect a response from Metro. I should point out that the 265 pages of pleadings filed by the ACLU of Nevada and its media partners in Las Vegas made absolutely no mention of the Due Process Clause, the 14th Amendment, the cases I cited above or the crucial fee v. revenue-raising distinction. Big omissions, in my view.
As a longtime reader, I’ve always thought your yawp is worse than your bite.