LAS VEGAS METRO. POLICE DEP'T VS. THE CTR. FOR INVESTIGATIVE REPORTING, INC. C/W 77965 , 2020 NV 15 ( 2020 )

136 Nev., Advance Opinion 15
IN THE SUPREME COURT OF THE STATE OF NEVADA
LAS VEGAS METROPOLITAN POLICE No. 77617
DEPARTMENT,
Appellant,
vs. FILED
THE CENTER FOR INVESTIGATIVE
REPORTING, INC., A CALIFORNIA
NONPROFIT ORGANIZATION,
Respondent.
LAS VEGAS METROPOLITAN POLICE No. 77965
DEPARTMENT,
Appellant,
vs.
THE CENTER FOR INVESTIGATIVE
REPORTING, INC., A CALIFORNIA
NONPROFIT ORGANIZATION,
Respondent.
Consolidated appeals from a final judgment and post-judgment
order awarding attorney fees in a public records action. Eighth Judicial
District Court, Clark County; Elizabeth Goff Gonzalez, Judge.
Affirmed.
Marquis Aurbach Coffing and Nicholas D. Crosby and Jacqueline V.
Nichols, Las Vegas,
for Appellant.
Campbell & Williams and Philip R. Erwin and Samuel R. Mirkovich, Las
Vegas,
for Respondent.
3.4 121-sig
11211111EI 11
BEFORE GIBBONS, STIGLICH and SILVER, JJ.
OPINION
By the Court, SILVER, J.:
The Nevada Public Records Act (NPRA) requires governmental
entities to make nonconfidential public records within their legal custody or
control available to the public. NRS 239.010. If a governmental entity
denies a public records request, the requester may seek a court order
compelling production. NRS 239.011(1). If the requesting party prevails,
the requester is entitled to attorney fees and costs. NRS 239.011(2). Here,
we are asked to determine whether the requesting party prevails for
purposes of an award of attorney fees and costs when the parties reach an
agreement that affords the requesting party access to the requested records
before the court enters a judgment on the merits. To answer that question,
we adopt the catalyst theory. "Under the catalyst theory, attorney fees may
be awarded even when litigation does not result in a judicial resolution if
the defendant changes its behavior substantially because of, and in the
manner sought by, the litigation." Graham v. DaimlerChrysler Corp., 101
P.3d 140, 144 (Cal. 2004). Applying the catalyst theory here, we agree with
the district court that respondent was entitled to reasonable attorney fees
and costs under NRS 239.011(2). We therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 1996, American rap artist Tupac Shakur was shot and killed
at the intersection of Flamingo Road and Koval Lane in Las Vegas. The
case is still an open investigation.
In December 2017, the Center for Investigative Reporting, Inc.
(CIR) submitted a public records request to the Las Vegas Metropolitan
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Police Department (LVMPD) under the NPRA. CIR sought records related
to Tupac's murder. One month later, when LVMPD still had not responded
to the request, CIR followed up and pointed out that LVMPD had not
complied with the NPRA's five-day period for responding to public records
requests. LVMPD responded that same day and notified CIR that the
public records request was forwarded to a Public Information Officer for
follow-up. Twelve days later, CIR reached out again and notified the Office
of Public Information that LVMPD was more than one month overdue in
responding to the public records request under the NPRA. CIR did not
receive a response.
In March 2018, roughly three months after its initial request,
CIR followed up for a third time, to no avail. About two weeks later, CIR's
counsel sent a letter to LVMPD's Director of Public Information setting
forth LVMPD's failure to comply with its statutory obligations under the
NPRA and demanding a response within seven days. LVMPD responded
eight days later by producing a two-page police report but failed to indicate
whether additional records existed or were otherwise exempt. Then, CIR
contacted LVMPD and inquired whether it had withheld records that were
responsive to ClR's request and, if so, under what legal authority. Assistant
General Counsel for LVMPD responded the following day, acknowledging
that LVMPD should have originally advised CIR that it would research the
request and respond within 30 days. Further, LVMPD stated that because
Tupac's murder was an "open active investigation," any other records in the
investigative file were (i) not public records under NRS 239.010(1),
(ii) declared by law to be confidential, (iii) subject to the "law enforcement
privilege," and (iv) protected from disclosure because law enforcement's
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policy justifications for nondisclosure outweigh the public's interest in
access to the records.
Dissatisfied with LVMPD's response, CIR contacted LVMPD
and disputed that the records were confidential because LMVPD labeled the
investigation "open" and "active and again asked LVMPD to comply with
its statutory obligations under the NPRA. However, LVMPD maintained
the records were not subject to disclosure.
CIR then filed a petition for a writ of mandamus, seeking to
inspect or obtain copies of all records related to Tupaes murder within
LVMPD's custody and control. The district court indicated during a hearing
on the petition that LVMPD had not met its burden of demonstrating that
all records in the investigative file were confidential under Nevada law. The
district court gave LVMPD two options: produce the requested records with
redactions or participate in an in-camera evidentiary hearing regarding
confidentiality. LVMPD opted for the latter, and the district court
scheduled a sealed evidentiary hearing. But before the scheduled hearing,
LVMPD and CIR reached an agreement: LVMPD would produce portions of
its records along with an index identifying and describing any redacted or
withheld records. As part of the agreement, CIR reserved the right to
challenge LVMPD's redactions or withholdings and reserved the right to
seek attorney fees and costs pursuant to NRS 239.011(2). Over the next
three months, LVMPD provided CIR with roughly 1,400 documents related
to Tupac's murder.
At a subsequent status check, LVMPD and CIR informed the
district court that they disagreed as to whether CIR "prevaile& for purposes
of an award of attorney fees and costs under NRS 239.011(2). CIR asserted
that the district court should follow the catalyst theory of recovery, which
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allows a petitioner to recover fees as the prevailing party in a public records
case where the petitioner's actions led to the disclosure of information.
LVMPD argued CIR had not prevailed because it did not obtain a judgment
in its favor, given that the parties had reached an agreement before the
district court entered a judgment on the merits. The district court
entertained argument on the issue and ruled that CIR prevailed because
the filing of its petition caused LVMPD to produce the records. The district
court subsequently entered a written order dismissing the petition as moot
based on the parties' agreement, concluding that CIR had prevailed for
purposes of NRS 239.011(2), and affording CIR time to file a motion for
attorney fees and costs.
CIR thereafter filed its motion for attorney fees and costs.
LVMPD opposed the motion and argued that NRS 239.012, which provides
immunity from "damagee for withholding records in good faith, precluded
an award of attorney fees and costs against it here. LVMPD also asserted
that CIR improperly sought prelitigation fees, which it was not entitled to
under NRS 239.011(2). The district court rejected LVMPD's immunity
argument and awarded CIR attorney fees and costs. These appeals
challenging the award of attorney fees followed.
DISCUSSION
The primary issue before us is whether CIR prevailed for
purposes of NRS 239.011(2). LVMPD argues that CIR did not prevail
because the district court did not enter an order compelling production of
'Before the hearing, the case was transferred from Judge Joanna
Kishner to Judge Elizabeth Gonzalez.
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the requested records.2 LVMPD contends that the district court erroneously
applied the catalyst theory to determine whether CIR prevailed, instead of
applying the prevailing party standard laid out in Las Vegas Metropolitan
Police Department v. Blackjack Bonding, Inc., 131 Nev. 80, 343 P.3d 608(2015). CIR argues that it prevailed because the filing of its petition caused
LVMPD to turn over the records, which it originally refused to disclose.
Instead of requiring that the requester receive a judgment on the merits,
CIR argues that this court should follow other courts that apply a catalyst
theory to determine whether a requester prevailed and therefore is entitled
to attorney fees.
The parties arguments present a matter of statutory
interpretation, which we review de novo. Clark Cty. Coroner's Office v. Las
Vegas Review-Journal, 136 Nev., Adv. Op. 5, P.3d , (February 27,
2020). "When a statute is clear on its face, we will not look beyond the
statutes plain language." Washoe Med. Ctr. v. Second Judicial Dist. Court
of State of Nev. ex rel. Cty. of Washoe, 122 Nev. 1298, 1302, 148 P.3d 790,
793 (2006). However, when a statute is ambiguous, we look to legislative
history for guidance. Id. Finally, "we consider the policy and spirit of the
law and will seek to avoid an interpretation that leads to absurd results."
Id. (quoting City Plan Dev., Inc. v. Office of the Labor Comm'r, 121 Nev. 419,
435, 117 P.3d 182, 192 (2005) (internal citations omitted)).
NRS 239.011(1) provides that if a governmental entity denies a
public records request, the requester may seek a court order permitting
2LVMPD
alternatively argues that NRS 239.012 immunizes it from
an attorney fees award under NRS 239.011(2) because it acted in good faith.
We recently rejected that argument in Clark County Coroner's Office v. Las
Vegas Review-Journal, 136 Nev., Adv. Op. 5, P.3d , (February 27,
2020).
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inspection of the record or requiring the government to provide a copy of the
record to the requester. NRS 239.011(2) provides that "[i]f 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 officer
has custody of the book or record."3 (Emphasis added.) However, the
Legislature did not define "prevails."
We have addressed NRS 239.011(2) once before in Las Vegas
Metropolitan Police Department v. Blackjack Bonding, Inc., 131 Nev. 80,
343 P.3d 608 (2015). There, we held that a requester prevails for NPRA
purposes if the requester "succeeds on any significant issue in litigation
which achieves some of the benefit it sought in bringing suit." 131 Nev. at
90, 343 P.3d at 615 (quoting Valley Elec. Ass'n v. Overfield, 121 Nev. 7, 10,
106 P.3d 1198, 1200 (2005)). Ultimately, we determined that the requester
there was a "prevailing party" for purposes of NRS 239.011(2) because it
obtained a writ compelling the production of records that were wrongfully
withheld. Id. Notably, the two cases cited in Blackjack Bonding addressed
statutory provisions that allow an attorney fees award to a "prevailing
party." Id.; see Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (interpreting
42 U.S.C. § 1988, which allows an attorney fees award to a "prevailing
party'' in federal civil rights actions); Overfield, 121 Nev. at 10, 106 P.3d at
1200 (addressing NRS 18.010, which allows an attorney fees award to a
"prevailing party" in civil actions under certain circumstances). However,
the Legislature utilized the broader term "prevails" in drafting NRS
3The Legislature amended NRS 239.011 during the 2019 session.
2019 Nev. Stat., ch. 612, § 7, at 4007-08. The amendments apply to actions
filed on or after October 1, 2019. Id. § 11, at 4008. As the underlying action
was filed in 2018, those amendments do not apply. But notably, the
language relevant to the issue presented here was not materially changed.
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239.011(2). Moreover, here, the district court did not enter an order
compelling production of the records because the parties came to an
agreement before the district court could enter an order on the merits.
Thus, Blackjack Bonding does not address the specific issue raised by this
appeal: whether a requester prevails under NRS 239.011(2) where the
governmental entity voluntarily produces the requested records before the
court enters an order on the merits.
Although we have not addressed that issue, other state courts
have done so in the context of attorney fee provisions in public records
statutes similar to NRS 239.011(2). Those courts have rejected a stringent
requirement that public records requesters must obtain an order on the
merits to prevail for purposes of an attorney fees award. See, e.g., Belth v.
Garamendi, 283 Cal. Rptr. 829, 831-32 (Ct. App. 1991); Uptown People's
Law Ctr. v. Dep't of Corr., 7 N.E.3d 102, 108-09 (Ill. App. Ct. 2014). For
example, in Mason v. City of Hoboken, the New Jersey Supreme Court
considered a statute that closely resembles NRS 239.011(2) in providing
that a "requester who prevails in any proceeding shall be entitled to a
reasonable attorney's fee." 951 A.2d 1017, 1031 (N.J. 2008) (emphasis
added) (quoting N.J. Stat. Ann. § 47:1A-6 (West 2014)). The court adopted
the "catalyst theory,"4 holding that "requestors are entitled to attorney's
4The catalyst theory developed to guide courts in determining
whether a plaintiff had "substantially prevailed" in an action under the
Freedom of Information Act (FOIA). See, e.g., First Amendment Coal. v.
U.S. Dep't of Justice, 878 F.3d 1119, 1127 (9th Cir. 2017) (listing cases).
Although the United States Supreme Court held in 2001 that the catalyst
theory could not be used to award attorney fees and costs under two federal
acts that allowed the "prevailing party" to obtain an award of attorney fees
and costs, Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health &
Human Res., 532 U.S. 598, 600-10 (2001), Congress amended FOIA in 2007
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fees under [the Open Public Records Act], absent a judgment . . . , when
they can demonstrate: (1) 'a factual causal nexus between plaintiffs
litigation and the relief ultimately achieved'; and (2) that the relief
ultimately secured by plaintiffs had a basis in law.'" Id. at 1032 (citing
Singer v. State, 472 A.2d 138 (N.J. 1984)).
In adhering to the catalyst theory, the New Jersey Supreme
Court noted the legislatures use of the broad term "prevails" as opposed to
the legal term of art "prevailing party." Id. at 1032. Nevada's Legislature
similarly used the broad term "prevails" in drafting NRS 239.011(2). The
New Jersey Supreme Court also pointed out a policy reason for allowing an
attorney fees award in a public records action absent a judgment on the
merits—the potential for government abuse in that an agency otherwise
could "deny access, vigorously defend against a lawsuit, and then
unilaterally disclose the documents sought at the eleventh hour to avoid the
entry of a court order and the resulting award of attorney's fees." Id. at
1031. We agree that this is a sound policy reason and supports utilizing the
catalyst theory to determine whether a requester has prevailed in an NPRA
lawsuit. That theory also promotes the Legislatures intent behind the
NPRA—public access to information. See NRS 239.001.
Under the catalyst theory, a requester prevails when its public
records suit causes the governmental agency to substantially change its
behavior in the manner sought by the requester, even when the litigation
does not result in a judicial decision on the merits. Graham v.
and a number of circuit courts of appeal have held that the amendment
restored the catalyst theory in FOIA litigation. See First Amendment Coal.,
878 F.3d at 1128-29 (discussing cases that address the impact of the 2007
amendment).
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DaimlerChrysler Corp., 101 P.3d 140, 148 (Cal. 2004). But as the Ninth
Circuit has explained, "Where may be a host of reasons why" a
governmental agency might "vohmtarily release [] information after the
filing of a [public records] lawsuit," including reasons "having nothing to do
with the litigation." First Amendment Coal., 878 F.3d at 1128. In other
words, while "the mere fact that [the government] ha[s] voluntarily
released documents [should] not preclude an award of attorney's fees to the
[requester]; it is equally true that the mere fact that information sought
was not released until after the lawsuit was instituted is insufficient to
establish thar the requester prevailed. Id. (quoting Church of Scientology
of Cal. v. U.S. Postal Serv., 700 F.2d 486, 491-92 (9th Cir. 1983)).
Accordingly, there must be a "causal nexus between the litigation and the
voluntary disclosure or change in position by the Government." Id.We therefore hold that a requester is entitled to attorney fees
and costs under NRS 239.011(2) absent a district court order compelling
production when the requester can demonstrate "a causal nexus between
the litigation and the voluntary disclosure or change in position by the
Government." First Amendment Coal., 878 F.3d at 1128. To alleviate
concerns that the catalyst theory will encourage requesters to litigate their
requests in district court unnecessarily, the court should consider the
following three factors: (1) "when the documents were released," (2) "what
actually triggered the documents release," and (3) "whether [the requester]
was entitled to the documents at an earlier time." Id. at 1129 (quoting
Church of Scientology, 700 F.2d at 492). Additionally, the district court
should take into consideration (1) whether the litigation was frivolous,
unreasonable, or groundless, and (2) whether the requester reasonably
attempted to settle the matter short of litigation by notifying the
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governmental agency of its grievances and giving the agency an opportunity
to supply the records within a reasonable time.5 See Graham, 101 P.3d at
154-55 (discussing limitations on the catalyst theory).
Applying the catalyst theory here, the district court determined
that CIR prevailed for purposes of NRS 239.011(2). We agree. CIR tried to
resolve the matter short of litigation. CIR put LVMPD on notice of its
grievances and gave LVMPD multiple opportunities to comply with the
NPRA. At each juncture, LVMPD either failed to respond or claimed
blanket confidentiality. It was not until CIR commenced litigation and the
district court stated at a hearing that LVMPD did not meet its
confidentiality burden that LVMPD finally changed its conduct. The record
thus supports the conclusion that the litigation triggered LVMPD's release
of the documents. LVMPD does not proffer any other reason aside from the
litigation that it voluntarily turned over the requested documents. And it
appears that CIR was entitled to at least some of the documents at an
earlier time because it is unlikely the blanket confidentiality privilege
LVMPD eventually asserted applied to all responsive documents in
LVMPD's possession. Critically, LVMPD agreed to turn over roughly 1,400
documents when faced with an in-camera evidentiary hearing. Thus, the
record supports the district court's determination that the lawsuit was the
catalyst for the LVMPD's release of the requested records. Accordingly, CIR
5A requester seeking fees under NRS 239.011(2) has the burden of
proving that the commencement of the litigation caused the disclosure.
Mason, 951 A.2d at 1032. However, that burden shifts to the responding
agency when the agency fails to respond at all within five business days.
Id.; see NRS 239.0107. In such cases, the agency must prove that the
commencement of the litigation was not the catalyst for the disclosure.
Mason, 951 A.2d at 1032.
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prevailed in the NPRA proceeding and is entitled to attorney fees and costs
pursuant to NRS 239.011(2). As the LVMPD does not otherwise challenge
the attorney fees and costs award, we affirm the judgments of the district
court.6
J.
Silver
We concur:
J.
eKtp.t.0 J.
Stiglich
6A1though LVMPD argues that the district court erred by including
prelitigation fees in the award, our review of the record and the district
court's order confirms that the district court did not include prelitigation
fees and costs in the award.
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