THE NEVADA INDEP. v. WHITLEY , 2022 NV 15 ( 2022 )

138 Nev., Advance Opinion 15
IN THE SUPREME COURT OF THE STATE OF NEVADA
THE NEVADA INDEPENDENT, No. 81844
Appellant,
vs.
RICHARD WHITLEY, IN HIS
OFFICIAL CAPACITY AS THE
DIRECTOR OF THE NEVADA
FILED
DEPARTMENT OF HEALTH AND
HUMAN SERVICES; THE STATE OF
NEVADA DEPARTMENT OF HEALTH
AND HUMAN SERVICES; AND
SANOFI-AVENTIS U.S. LLC,
Respondents.
Appeal from a district court order denying a petition for a writ
of mandamus in a public records matter. Eighth Judicial District Court,
Clark County; Adriana Escobar, Judge.
Affirmed.
Robert L. Langford & Associates and Matthew J. Rashbrook and Robert L.
Langford, Las Vegas,
for Appellant The Nevada Independent.
Aaron D. Ford, Attorney General, Heidi Parry Stern, Solicitor General,
Steve Shevorski, Chief Litigation Counsel, and Akke Levin, Senior Deputy
Attorney General, Carson City,
for Respondents Richard Whitley and the State of Nevada Department of
Health and Human Services.
Bailey Kennedy and John R. Bailey, Dennis L. Kennedy, Sarah E. Harmon,
and Rebecca L. Crooker, Las Vegas,
for Respondent Sanofi-Aventis U.S. LLC.
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McCracken, Stemerman & Holsberry, LLP, and Richard G. McCracken and
Paul L. More, San Francisco, California,
for Amicus Curiae Culinary Workers Union Local 226.
BEFORE THE SUPREME COURT, PARRAGUIRRE, C.J., STIGLICH and
SILVER, JJ.
OPINION
By the Court, STIGLICH, J.:
Nevada's public records law shines a light on government
conduct. It permits Nevadans insight into whether the officials they elected
are holding true to their promises. But this law's illumination ends where
statutory confidentiality provisions begin.
In this appeal, we consider whether the federal Defend Trade
Secrets Act (DTSA) prohibits disclosure, under the Nevada Public Records
Act (NPRA), of documents from pharmaceutical companies and pharmacy
benefit managers collected under S.B. 539. The Nevada Independent (TNI)
petitioned the district court to order the Department of Health and Human
Services (DHHS) to release such documents, arguing that the documents
constituted public records that must be made available to it. The district
court determined that the information in these documents comprised trade
secrets protected under the DTSA and that the documents thus were not
subject to disclosure under the NPRA. TNI appeals the district court's
order.
As a matter of first impression, we hold that because the DTSA
classifies these requested documents, obtained pursuant to S.B. 539, as
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confidential trade secrets, these documents are shielded from disclosure
under the NPRA.
BACKGROUND
Most states, including Nevada, have adopted some form of the
Uniform Trade Secrets Act. See NRS Chapter 600A. To compliment these
state trade secret laws, Congress, in 2016, amended the Economic
Espionage Act of 1996 by passing the DTSA to further ensure trade secret
protections in national and global economies. H.R. Rep. No. 114-529 (2016),
as reprinted in 2016 U.S.C.C.A.N. 195, 198. The DTSA created a federal
cause of action for misappropriation of trade secrets and defined
"misappropriation" to include disclosure of a trade secret without the
owner's consent, among other things. 18 U.S.C. §§ 1836, 1839(5)(b). Like
the uniform act, the DTSA classifies as trade secrets information (A) that
the owner has taken "reasonable measures" to keep secret and (B) that
"derives independent economic value from "not being generally known to"
or "readily ascertainable through proper means" by an entity that can
economically benefit from the information's disclosure or use. 18 U.S.C.
§ 1839(3).
One year later, in responding to the rapidly increasing price of
insulin for Nevada residents, then-Governor Brian Sandoval signed into
law S.B. 539. 2017 Nev. Stat., ch. 592. That bill, now codified in NRS
4398.600-.695, requires pharmaceutical manufacturers and pharmacy
benefit managers (PBMs) to submit to DHHS documentation regarding the
cost structure of insulin medication in Nevada. As relevant here, S.B. 539
requires DHHS to compile lists of essential diabetes medications,
manufacturers to report the pricing information of these drugs and justify
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any price increases, and PBMs to disclose the rebates they negotiate. NRS
439B.630-.645.
Importantly, S.B. 539 also amended Nevada's version of the
Uniform Trade Secrets Act to exclude from trade secret protections "any
information" that a manufacturer or PBM is required to report per S.B. 539.
NRS 600A.030(5)(b). Nevertheless, after S.B. 539 was passed, two
organizations representing pharmaceutical companies sued Governor
Sandoval, DHHS Director Richard Whitley, and the Nevada Legislature,
claiming that S.B. 539s elimination of trade secret protections is preempted
by the DTSA and is constitutionally suspect. The case was dismissed after
DHHS promulgated regulations, NAC 439.730-.740, to harmonize S.B. 539,
the NPRA, and the DTSA.
A reporter for TNI thereafter made a public records request to
DHHS for all reports submitted by pharmaceutical manufacturers and
PBMs under S.B. 539. Relevant here, TNI sought the names of
pharmaceutical manufacturers and PBMs that submitted annual reports
pursuant to S.B. 539, and the annual reports themselves.1 DHHS
responded by providing the names of manufacturers and PBMs and some
general information about the diabetes drugs but did not disclose other
parts of the Manufacturer Essential Diabetes Drug Reports, including
(1) the cost of producing the drug, (2) the total administrative expenditure
1TNI also requested written opinions by the Nevada Attorney
General's Office regarding S.B. 539s implementation in 2017. DHHS did
not produce these opinions, a decision which TNI does not challenge on
appeal. We therefore do not consider it. See Las Vegas Review Journal v.
City of Henderson, 137 Nev., Adv. Op. 81, 500 P.3d 1271, 1275 (2021)
(determining that an issue not raised in an appellant's opening brief need
not be considered).
4
relating to the drug, and (3) the profit margin the manufacturer earned by
producing the drug. DHHS explained that, proceeding under NAC 439.730-
.740, it believed disclosing this information would constitute
misappropriating trade secrets under the DTSA, such that this information
was confidential and not subject to release under the NPRA. TNI and
DHHS subsequently exchanged another similar request and response.
As a result of DHHS's refusal to provide the requested
information, TM filed a mandamus action in the district court to compel
disclosure under the NPRA, also challenging the validity of NAC 439.730-
.740. Sanofi-Aventis U.S. LLC, a pharmaceutical company that submitted
records pursuant to S.B. 539, moved to intervene, which the district court
allowed. Sanofi thereafter presented an affidavit from its Vice President
and Head of Diabetes and Primary Care Sales, James Borneman, who
attested to the steps Sanofi takes to safeguard its trade secrets and the
potential economic hardship Sanofi would suffer from the trade secrets'
disclosure. For example, Borneman affirmed that pricing inputs and
rationale are restricted internally within Sanofi and are shared on a need-
to-know basis only, subject to nondisclosure agreements. The public
disclosure of this information, Borneman declared, could be used by Sanofi's
competitors and customers in, inter alia, price negotiations with insurers to
Sanofi's financial detriment. TM moved to compel Borneman's testimony
or in the alternative to strike his affidavit from the record. The district .
court denied this motion.
The district court then denied TNrs writ petition. The district
court determined that "Mlle DTSA's definition for trade secrets places these
reports squarely under confidentiality protections," since DHHS
demonstrated that the reports are subject to reasonable efforts to maintain
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their secrecy and that the reports derive independent economic value from
such secrecy. See 18 U.S.C. § 1839(3). Next, the district court found that
NAC 439.730-.740 are valid regulations because DHHS has broad discretion
to develop regulations that "foster efficient enforcement of codified
legislation" (in this case, S.B. 539) and DHHS reasonably interpreted the
governing statute in adopting the regulations. The district court opined
that these regulations ensured that NPRA requests for information DHHS
had gathered due to S.B. 539 did not run afoul of the DTSA because, while
the regulations' "confidentiality protections are not automatic," they
ensured that the affected entity had the opportunity to contest the release
of what it believes to be confidential information in court. This appeal
followed.
DISCUSSION
TNI has not demonstrated that NAC 439.730-.740 are invalid regulations
TNI contends that NAC 439.735 and NAC 439.740 are invalid
regulations because they were not authorized by the Nevada Legislature,
conflict with S.B. 539, and "operate as a line-item veto over the NPRA."2
We disagree.
NRS 439B.685 allows DHHS to adopt regulations it deems
"necessary or advisable to carry out the provisions of NRS 439B.600 to
439B.695, inclusive." Relevant here, DHHS utilized this enabling provision
to promulgate NAC 439.735 and NAC 439.740 to harmonize the NPRA, S.B.
539, and the DTSA. NAC 439.735(1) permits a manufacturer or PBM to
2TNI also argues that NAC 439.730 is invalid but does not cogently
argue this point or support it with salient authority. We therefore decline
to consider it. See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330
n.38, 130 P.3d 1280, 1288 n.38 (2006).
6
submit a request for confidentiality to DHHS to prevent public disclosure of
any information it reasonably believes could lead to the misappropriation of
a trade secret under the DTSA. The requesting manufacturer or PBM must
describe the information it seeks to protect with particularity and explain
why public disclosure would lead to misappropriation of a trade secret
under the DTSA. NAC 439.735(2)(a)-(b). DHHS must determine whether
it agrees with this assessment if it receives an NPRA request for the
ostensibly confidential information. NAC 439.735(3). If DHHS agrees with
the manufacturer's or PBM's assessment, it must deny the NPRA request.
NAC 439.735(4). However, if DHHS does not agree, then it must provide
the manufacturer or PBM a period of 30 days before releasing the
information to allow the affected entity the opportunity to challenge
DHHS's determination in court. NAC 439.735(5). NAC 439.740 requires
DHHS to include only aggregated data that does not disclose the identity of
any manufacturer or PBM in its public reports submitted pursuant to NRS
439B.650 and descriptions of trends in prescription drugs and how those
prices affect the prevalence and severity of diabetes in Nevada and
healthcare in the state more generally.
Agency regulations are presumed valid. See NRS 233B.090;
Montage Mktg., LLC v. Washoe County ex rel. Washoe Cty. Bd. of
Equalization, 134 Nev. 294, 297, 419 P.3d 129, 131 (2018). And this court
generally defers to an agency's interpretation of a statute that the agency
is tasked with enforcing. State, Div. of Ins. v. State Farm Mut. Auto. Ins.
Co., 116 Nev. 290, 293, 995 P.2d 482, 485 (2000). It is well established,
however, that laklministrative regulations cannot contradict or conflict
with the statute they are intended to implement." Roberts v. State, 104 Nev.
33, 37, 752 P.2d 221, 223 (1988); accord Clark Cty. Social Serv. Dep't v.
7
Newkirk, 106 Nev. 177, 179, 789 P.2d 227, 228 (1990). Where an agency
regulation directly conflicts with the unambiguous language of the statute,
a court may invalidate it. See Newkirk, 106 Nev. at 179, 789 P.2d at 228.
Contrary to TNFs allegation, NAC 439.735 does not contradict
S.B. 539. First, NRS 439B.685s unambiguous language, while not
specifically directing DHHS to protect the confidentiality of these
documents, nonetheless authorizes DHHS to promulgate these regulations.
See Newkirk, 106 Nev. at 179, 789 P.2d at 228. Although TNI contends that
NAC 439.735 "invitres] unelected members of the executive branch to make
judicial determinations regarding confidentiality" and delays production of
public records in violation of the NPRA, we determine that its claims are
unfounded. NAC 439.735 does not act as a unilateral bar on disclosure of
documents otherwise entitled to be part of the public record. It merely
creates a process by which DHHS can determine whether the requested
records fall within the DTSA's protection of trade secrets. Should DHHS
determine that the DTSA does not afford the records such protection, NAC
439.735 places the burden on the pharmaceutical company or PBM to
challenge the DHHS's determination in court. Likewise, any DHHS
determination that the requested records are confidential can be contested
by the requester in court. See NRS 239.011. It is the district court judge,
therefore, that makes the ultimate determination regarding confidentiality,
not DHHS. In fact, TM concedes in its reply brief that NAC 439.735
presents no bar to the production of the requested records. In sum, TNI has
not overcome the presumption that NAC 439.735 is valid, and we therefore
defer to DHHS's interpretation of S.B. 539. See NRS 233B.090; Montage
8
Mktg., LLC, 134 Nev. at 297, 419 P.3d at 131; State Farm Mut. Auto. Ins.
Co., 116 Nev. at 293, 995 P.2d at 485.3
TNI next contends that NAC 439.740 directly conflicts with the
Legislatures intent in passing S.B. 539 to create transparency in the
market for diabetic medication. It argues that the Legislature did not grant
DHHS the authority to promulgate NAC 439.740 and exempt material from
public disclosure. Not so.
This court first looks to the plain language of a statute when
interpreting a statutory provision. Clay v. Eighth Judicial Dist. Court, 129
Nev. 445, 451, 305 P.3d 898, 902 (2013). Where a statute is unambiguous,
we do not go beyond it to divine legislative intent. Robert E. v. Justice Court,
99 Nev. 443, 445, 664 P.2d 957, 959 (1983).
Here, the plain language of NRS 439B.650 is clear. It requires
DHHS to analyze the reports submitted by pharmaceutical companies and
PBMs and compile its own report documenting such analysis. It does not,
as TM maintains, prohibit DHHS from anonymizing the data it collects per
S.B. 539. Thus, NAC 439.740 does not conflict with NRS 439B.650, and
DHHS had the authority to promulgate the regulation under NRS
439B.685. Therefore, we conclude that TNrs challenge of NAC 439.740 fails
as well.4
3TM alternatively argues that NAC 439.735 leads to an unreasonable
delay in the production of public records by providing pharmaceutical
companies and PBMs 30 days to respond to NPRA requests. However, it
does not provide salient authority on how this process leads to an
unreasonable delay under the NPRA, so we do not consider it. See Edwards,
122 Nev. at 330 n.38, 130 P.31 at 1288 n.38.
4As with NAC 439.735, TNI maintains NAC 439.740 delays public
record requests under the NPRA but fails to cogently demonstrate how so.
9
The district court did not abuse its discretion by admitting James
Borneman's declaration
TNI next contends that the district court abused its discretion
by admitting Borneman's declaration after determining the declaration was
not based solely on his personal knowledge. We determine that the
admission of Borneman's declaration was proper.
A lay witness may testify on a matter if the witness has
personal knowledge of the matter to which he or she is testifying. NRS
50.025(1)(a). Personal knowledge may come from a witness's review of files
and records, Wash. Cent. R.R. Co., Inc. v. Nat'l Mediation Bd., 830 F. Supp.
1343, 1353 (E.D. Wash. 1993); or be inferred from the witness's position, In
re Kaypro, 218 F.3d 1070, 1075 (9th Cir. 2000). We review the district
court's decision to admit or exclude evidence for an abuse of discretion. M.C.
Multi-Family, LLC v. Crestdale Assocs., Ltd., 124 Nev. 901, 913, 193 P.3d
536, 544 (2008). A district court abuses its discretion when its decision is
"in clear disregard of the guiding legal principles." Gunderson v. D.R.
Horton, Inc., 130 Nev. 67, 80, 319 P.3d 606, 615 (2014) (internal quotation
marks omitted).
Borneman proffered a declaration as Sanofi's Vice President
and Head of Diabetes and Primary Care Sales about the confidential
information included in Sanofi's reports, the steps Sanofi takes to safeguard
its trade secrets, and the potential economic hardship Sanofi would suffer
if the trade secrets were publicly disclosed. Two paragraphs of Borneman's
six-page declaration were recited almost verbatim from Sanofi's website and
We therefore do not consider this claim. See Edwards, 122 Nev. at 330 n.38,
130 P.3d at 1288 n.38.
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from the testimony of other Sanofi employees; these paragraphs discussed
Sanofi's headquarters and mission statement.
As Head of Diabetes and Primary Care Sales for Sanofi,
Borneman's personal knowledge of Sanofi's procedures regarding its
protection of trade secrets language may be inferred. See In re Kaypro, 218
F.3d at 1075. Furthermore, personal knowledge may be presumed because
Borneman had access to Sanofi's files and records in preparing his
declaration. See Wash. Cent. R.R. Co., 830 F. Supp. at 1353. Therefore,
given the broad discretion that the district court enjoys in its admission of
evidence, its refusal to strike the declaration was proper, despite its
conclusion that Borneman did not testify solely from personal knowledge.
See Saavedra-Sandoval v. Wal-Mart Stores, Inc., 126 Nev. 592, 598-99, 245
P.3d 1198, 1202 (2010) (holding that "ftlhis court will affirm a district
court's order if the district court reached the correct result, even if for the
wrong reason"); M.C. Multi-Family, 124 Nev. at 913, 193 P.3d at 544.
The district court did not abuse its discretion by denying the writ petition
The gravamen of this appeal is TNI's claim that the district
court abused its discretion by determining that the requested records are
trade secrets under the DTSA. The DTSA classifies as trade secrets
information (A) that the owner has taken "reasonable measures" to keep
secret and (B) from which the owner "derives independent economic value"
that is not "readily ascertainable through proper meane by an entity that
can obtain economic benefit from the information's disclosure. 18 U.S.C.
§ 1839(3). "[T]he definition of what may be considered a 'trade secret is
broad." InteliClear, LLC v. ETC Glob. Holdings, Inc., 978 F.3d 653, 657 (9th
Cir. 2020). The government bears the burden of demonstrating by a
preponderance of the evidence that the public records at issue are
11
confidential. NRS 239.0113; Pub. Emps. Ret. Sys. of Nev. v. Nev. Policy
Research Inst., Inc., 134 Nev. 669, 671, 429 P.3d 280, 283 (2018). We review
a district court's decision to deny a writ petition for an abuse of discretion,
but we review its decision de novo where the petition raises a question of
statutory interpretation. Reno Newspapers, Inc. v. Haley, 126 Nev. 211,
214, 234 P.3d 922, 924 (2010).
The first inquiry into whether information is a protected trade
secret is whether its owners have taken "reasonable measures" to keep the
information secret. 18 U.S.C. § 1893(3). Owners of proprietary information
may take a variety of approaches that constitute "reasonable measures" to
protect their trade secrets. For example, the Ninth Circuit has noted that
"[c]onfidentiality provisions constitute reasonable steps to maintain
secrecy." InteliClear, 978 F.3d at 660 (citing MAI Sys. Corp. v. Peak
Comput., 991 F.2d 511, 521 (9th Cir. 1993)). It is well-established that a
confidential disclosure of a trade secret to an employee does not negate the
disclosed information's status as a trade secret. Id. at 661; United States v.
Nosal, 844 F.3d 1024, 1043-44 (9th Cir. 2016); United States v. Chung, 659
F.3d 815, 825-26 (9th Cir. 2011).
We determine that the district court appropriately concluded
that the measures that manufacturers and PBMs have taken to protect
their information are sufficient to meet the first prong of the DTSA. The
district court noted that DHHS places significant limitations on who has
access to the requested records and privatizes the information that is
shared, and that manufacturers and PBMs have submitted requests for
confidentiality to prevent the release of their trade secrets. This analysis is
further bolstered by Borneman's declaration. In it, he notes that Sanofi
restricts access to pricing information and rationale. He mentions that
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Sanofi shares this proprietary information only on a need-to-know basis and
further protects these secrets by entering into nondisclosure agreements
with employees who have access to them. In sum, these confidentiality
provisions are sufficient to constitute "reasonable measures" at preserving
the information's secrecy under the DTSA. Cf. InteliClear, 978 F.3d at 660-
61.
In the alternative, TNI maintains that manufacturers and
PBMs have waived any trade secret protections they may have had by
voluntarily submitting the requested documents to DHHS, relying on
Amgen, Inc. v. California Health Care Services, 260 Cal. Rptr. 3d 873 (Ct.
App. 2020). In Amgen, the California Court of Appeal considered whether
pharmaceutical manufacturers lose trade secret protection for the price-
increase notices they submit pursuant to California S.B. 17. Id. at 876-77.
In relevant part, S.B. 17 requires manufactures to provide 60 days notice
to PBMs of an increase in drug prices. Id. at 878-79. The PBMs are required
to notify large purchasers (i.e., those who provide coverage to over 500
people) of the price increase. Id. A news entity made a public records
request under California's analog to the NPRA for the price-increase
notices. Id. at 877. Amgen filed a petition for writ of mandamus, invoking
state trade secret privilege to block disclosure. Id. The court held that
Amgen's disclosure of the price increases to the purchasers eroded the
documents' trade secret protections, since no statutory or regulatory
provision "requires the purchasers to keep the price increase notices
confidential or otherwise restricts the purchasers' use of the information in
the notices." Id. at 879.
We are unpersuaded by TNI's citation to Amgen. Nevada law
differs from California's with respect to trade secret protections. Whereas
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the California statutory and regulatory provisions did not provide
confidentiality protection for the requested information in Amgen, NAC
439.735 permits manufacturers and PBMs to request confidentiality for any
information they submit to DHHS that they believe constitutes a trade
secret. See Amgen, 260 Cal. Rptr. 3d at 879; cf. Food Mktg. Inst. v. Argues
Leader Media, U.S. „ 139 S. Ct. 2356, 2366 (2019) (determining
that information is confidential where it is "both customarily and actually
treated as private by its owner and provided to the government under an
assurance of privacy"). Furthermore, it is fundamentally unfair to conclude
that a manufacturer or PBM waives its trade secret protections in the
requested records by submitting them to DHHS pursuant to S.B. 539—a
mandate it is powerless to ignore. See Ctr. for Auto Safety v. Nat'l Highway
Traffic Safety Admin., 244 F.3d 144, 149 (D.C. Cir. 2001) (concluding that
an agency's legal authority to obtain records from a private party dictates
whether the submission of those records is mandatory).5 Therefore, because
manufacturers and PBMs turned over these documents with the
expectation of confidentiality, such disclosure is not inconsistent with our
determination that the company has taken "reasonable measures" to keep
the information secret with respect to the DTSA. See InteliClear, 978 F.3d
at 660-61.
We next consider the second step of the DTSA's trade secret
test, which considers whether the owner derives economic value from the
information's nondisclosure and whether the information is not "readily
ascertainable through proper means" by an entity that can obtain economic
5Indeed, NRS 439B.695 provides that DHHS may impose an
administrative penalty on noncompliant manufacturers and PBMs for each
day of their failure to conform with S.B. 539s disclosure requirements.
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benefit from the information's disclosure. 18 U.S.C. § 1839(3). TNI
contends that the requested documents, which contain pricing information
on insulin medications, cannot be considered trade secrets because they do
not provide economic value to the manufacturers and PBMs. TNI argues
that no manufacturer enjoys an economic advantage from keeping insulin
prices secret, pointing out that two manufacturers listed their insulin
medications at identical prices in 2016. Because manufacturers list
identical prices for the same insulin medication, TNI maintains that they
enjoy no economic benefit from keeping those prices secret.
We determine that the district court was within its discretion
to conclude that the requested records, which identified "drug cost
structure, marketing and advertising costs, rebate strategies, and profit
information," comprised trade secrets under the DTSA because the
manufacturers and PBMs "derive[ ] independent economic value . . . from
[this information] not being generally known." 18 U.S.C. § 1839(3)(B).
TNrs pointing to two different manufacturers listing insulin at the same
price in 2016 is insufficient to prove that manufacturers do not derive
economic value from the secrecy of their pricing regime, or even that every
manufacturer prices insulin identically. Even if manufacturers did price
insulin identically, Borneman's declaration attests to the fact that
manufacturers could still glean an economic advantage over others by
becoming privy to their costs and expenses. during production and
marketing. And even though the fact that two manufacturers priced insulin
identically is part of the public record, this does not deprive the
manufacturers pricing scheme, more generally, from trade secret
protection. See Mallet & Co., Inc. v. Lacayo, 16 F.4th 364, 386 (3d Cir. 2021)
("Mnformation will not necessarily be deprived of protection as a trade
15
secret because parts of it are publicly available."). Thus, we conclude that
the district court appropriately determined that manufacturers and PBMs
gain an economic benefit by keeping the requested documents confidential
from their competitors and the public.
As we have noted before, "Mlle obligation to disclose . . . is not
without limits." Republican Att'ys Gen. Asen v. Las Vegas Metro. Police
Dep't, 136 Nev. 28, 31, 458 P.3d 328, 331 (2020). Since we hold that these
documents are declared by law (i.e., the DTSA) to be confidential trade
secrets, we conclude that they are exempt from disclosure under the NPRA.
See NRS 239.010(1) (permitting public examination of governmental
records unless those records are "declared by law to be confidential");
Republican Att'ys Gen. Ass'n, 136 Nev. at 31, 458 P.3d at 331 ("M he NPRA
yields to more than 400 explicitly named statutes, many of which prohibit
the disclosure of public records that contain confidential information.").
We therefore conclude that the district court's denial of the writ
petition was within its discretion. On the facts before us in the record,
DHHS has dernonstrated that the requested records satisfy the DTSA's two-
step test for confidentiality by showing that manufacturers and PBMs have
taken reasonable measures to shield the requested records from disclosure
and that these entities derive economic value from the requested records'
secrecy.6
6TNI also contends that the Eleventh Amendment's sovereign
immunity protects DHHS and Whitley from suit in federal court if they
release the requested records. Since we determine that the requested
records are exempt from disclosure, we need not consider this hypothetical
issue. See Echeverria v. State, 137 Nev., Adv. Op. 49, 495 P.3d 471, 475
(2021) (reaffirming that this court lacks the authority to issue advisory
opinions).
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CONCLUSION
The NPRA permits the disclosure of government documents
that are not declared by law to be confidential. In this opinion, we hold that
the requested documents are confidential under the DTSA and are thus
exempted from disclosure under the NPRA. We also determine that TNI
has not demonstrated that NAC 439.730-.740 are invalid regulations and
that the district court reached the correct outcome in admitting James
Borneman's declaration. For these reasons, we affirm the district court's
judgment.
J.
st i glic h
We concur:
C.J.
LiZ4aA) J.
Silver
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