Nev. Policy Research Inst. v. Clark Co. School Dist. ( 2015 )

 request for a public record and that the request was denied by CCSD.
CCSD subsequently filed a motion to dismiss NPRI's complaint for failure
to state a claim under NRCP 12(b)(5). The district court granted CCSD's
motion to dismiss, determining, inter alia, that the email directory is not a
public book or record under NRS 239.011, that the email directory is
confidential, and that CCSD's interest in nondisclosure clearly outweighs
NPRI's interest in access. This appeal followed.
DISCUSSION
A motion to dismiss "under NRCP 12(b)(5) is• subject to a
rigorous standard of review on appeal." Buzz Stew, LLC v. City of N. Las
Vegas, 124 Nev. 224, 227-28, 181 P.3d 670, 672 (2008) (internal quotation
omitted). Accordingly, the facts alleged in NPRI's complaint are presumed
to be true and all inferences will be drawn in favor of NPRI. See id. at
228, 181 P.3d at 672. A party's "complaint should be dismissed only if it
appears beyond a doubt that it could prove no set of facts, which, if true,
would entitle it to relief." Id. Hence, NPRI's complaint will be sufficient if
the allegations contained therein provide "fair notice of the nature and
basis of a legally sufficient claim and the relief requested." Vacation Viii.,
Inc. v. Hitachi Am., Ltd., 110 Nev. 481, 484, 874 P.2d 744, 746 (1994)
(emphasis added); see Liston v. Las Vegas Metro. Police Dep't, 111 Nev.
1575, 1578, 908 P.2d 720, 723 (1995) (noting that "notice pleading"
requires that plaintiffs set forth facts which support a legal theory); see
also NRCP 8(a) (requiring that a claim contain a short and plain
statement showing that the pleader is entitled to relief and a demand for
judgment for the relief). We review the district court's legal conclusions de
novo. Sepat v. Lacayo, 122 Nev. 499, 501, 134 P.3d 733, 735 (2006)
abrogated on other grounds by Buzz Stew, LLC v. City of N. Las Vegas, 124
Nev. 224, 181 P.3d 670 (2008).
SUPREME COURT
OF
NEVADA
2
(0) 1947A eA)
A claim is legally sufficient under NRS 239.011 if it
establishes that: (1) a request was made for inspection of a public book or
record open to inspection, (2) the request to inspect or copy was denied,
and (3) the material requested is not confidential per NRS 239.0105.
However, in reaching its determination that NPRI failed to state a claim,
the district court considered additional, extrinsic factors. Among the
factors considered were: why NPRI wanted the directory, whether the
directory would be sold, and whether spam sent to teachers would surge,
thereby detracting from student learning. The district court went on to
balance the interests of the parties, finding that disclosure would affect
students' right to learn, an interest that outweighs NPRI's interest in
obtaining the directory.' These inquiries unnecessarily ventured beyond
the basic consideration of whether the complaint alleged that NPRI made
a request for a non-confidential public book or record that CCSD denied.
We recognize that the district court went on to provide an
alternative basis for dismissing NPRI's claim in its order granting
dismissal, but the district court's legal conclusions were also improper.
'The district court considered these factors during the hearing on
the motion to dismiss. After discussing them, the district court requested
that counsel for CCSD draft a proposed order granting the motion to
dismiss. In doing so, the district court judge represented that his decision
was, at least in part, based on the considerations espoused in the hearing.
Therefore, in reaching our decision, we considered both the findings made
in the hearing and the findings made in the order.
SUPREME COURT
OF
NEVADA
3
(0) I947A
Definition of a Public Record
We conclude that a directory of CCSD teachers' e-mail
addresses is a public record within the plain meaning of the NPRA.
According to rules of statutory construction, "[w]here the language of a
statute is plain and unambiguous, and its meaning clear and
unmistakable, there is no room for construction, and the courts are not
permitted to search for its meaning beyond the statute itself." Erwin v.
State, 111 Nev. 1535, 1538-39, 908 P.2d 1367, 1369 (1995) (internal
quotations omitted). Pursuant to the NPRA, "unless otherwise declared by
law to be confidential, all public books and public records of a
governmental entity must be open" to inspection or copying by any person
during office hours. NRS 239.010(1). The NPRA does not specifically
define a public record, so we look to the Nevada Administrative Code
(NAC). NAC 239.091 defines a public record as "a record of a local
governmental entity that is created, received or kept in the performance of
a duty and paid for with public money."
The government-issued email addresses requested by NPRI
meet the plain definition of a "public record" provided by NAC 239.091.
CCSD does not dispute that it is a local governmental entity within the
meaning of NAC 239.091 and we confirm CCSD's implicit recognition.
NRS 386.010(2) clearly provides that, as a county school district, CCSD is
a political subdivision of the State of Nevada. CCSD also concedes that
the directory was created and kept in the performance of its duty to
educate children. Specifically, CCSD notes that it created the email
address directory to ensure efficient school district administration and
encourage meaningful teacher-parent dialogue. CCSD is also in the best
position to know, and concedes, that the creation and maintenance of the
directory was paid for at the expense of tax payers. Because we agree
SUPREME COURT
OF
NEVADA
4
(0) 1947A
with each of CCSD's concessions, which render the requested directory a
‘`public record," the directory should be open for inspection or copying by
the public.
Confidentiality
"[W]e begin with the presumption that all government-
generated records are open to disclosure." Reno Newspapers, Inc. u.
Gibbons, 127 Nev. Adv. Op. No. 79, 266 P.3d 623, 628 (2011). "The state
entity therefore bears the burden of overcoming this presumption by
proving, by a preponderance of the evidence, that the requested records
are confidential." Id. According to CCSD, it is required by NRS 239B.040
to keep the directory confidential. NRS 239B.040 provides, in pertinent
part:
If a person or his or her agent provides the
electronic mail address or telephone number of the
person to a governmental entity for the purpose of
or in the course of communicating with that
governmental entity, the governmental entity may
maintain the electronic mail address or telephone
number in a database.
(b) A database described in this subsection:
(1) Is confidential;
(2) Is not a public book or record within
the meaning of NRS 239.010; and
(3) Must not be disclosed in its entirety as
a single unit.
The plain meaning of NRS 239B.040 commands that the
directory of CCSD teachers' emails sought by NPRI is not confidential.
Plainly read, the statute limits confidentiality to a directory composed of
email addresses that are provided to a government entity for the purpose
of or in the course of communicating with that government entity. Thus,
to be confidential, NRS 239B.040 first requires that a person provide the
SUPREME COURT
OF
NEVADA
5
(0) 1 ,147A
government agency with an email address. Conversely, the directory of
CCSD teachers' email addresses is composed of email addresses both
created and maintained by CCSD, not provided to CCSD. Therefore, the
email addresses requested by NPRI are not confidential under the plain
language of NRS 239B.040.
Balancing Interests
As an additional matter, we conclude that balancing interests
on a NRCP 12(b)(5) motion to dismiss in a public records claim was
premature and outside the scope of the allegations contained within the
pleadings. Reno Newspapers is instructive. There, we considered whether
a state entity withholding records must provide a log containing the
factual description of the record held. Reno Newspapers, 127 Nev. Adv.
Op. No. 79, 266 P.3d at 625-26. In our determination that the state entity
must provide such a log, we noted: "[U]nmistakable is the emphasis that
our NPRA jurisprudence places on adequate adversarial testing. Indeed,
the framework established in Bradshaw, DR Partners, and Reno
Newspapers v. Sheriff exemplifies an intensely adversarial method for
determining whether requested records are confidential." Id. at 629.
Applying that principle favoring adversarial testing here, we conclude that
NPRI was inadequately heard on this issue.
In light of our conclusions above, our review of the complaint
reveals that NPRI made legally sufficient allegations that should have
survived CCSD's motion to dismiss.
SUPREME COURT
OF
NEVADA
6
(0) 1947A
Based on the foregoing, we ORDER the judgment of the
district court REVERSED AND REMAND for proceedings consistent with
this order.
J.
Citr
Parraguirre
J.
Douglas
cc: Hon. Douglas Smith, District Judge
NPRI Center for Justice and Constitutional Litigation
Lewis Roca Rothgerber LLP/Las Vegas
Kamer Zucker Abbott
Allen Lichtenstein
Amy M. Rose
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
7
(UJ / 947A •144