                                                   131 Nev., Advance Opinion I 0
                         IN THE SUPREME COURT OF THE STATE OF NEVADA


                LAS VEGAS METROPOLITAN POLICE                        No. 62864
                DEPARTMENT; AND DOUGLAS C.
                GILLESPIE,
                Appellants,
                vs.
                BLACKJACK BONDING, INC.,
                Respondent.

                BLACKJACK BONDING, INC.,                             No, 63541
                Appellant,
                vs.
                LAS VEGAS METROPOLITAN POLICE                                   FILED
                DEPARTMENT; AND DOUGLAS C.
                GILLESPIE,                                                      MAR 0 5 2015
                Respondents.



                            Consolidated appeals from a district court order granting in
                part a writ of mandamus to compel compliance with a public records
                request and a post-judgment order denying a motion for attorney fees and
                costs. Eighth Judicial District Court, Clark County; Jerry A. Wiese,
                Judge.
                            Affirmed in part, reversed in part, and remanded.

                Olson, Cannon, Gormley, Angulo & Stoberski and Thomas D. Dillard, Jr.,
                Las Vegas,
                for Las Vegas Metropolitan Police Department and Douglas C. Gillespie.

                Armstrong Teasdale, LLP, and Tracy A. DiFillippo and Conor P. Flynn,
                Las Vegas,
                for Blackjack Bonding, Inc.

                Josh M. Reid, City Attorney, and Michael J. Oh, Assistant City Attorney,
                Henderson,
                for Amicus Curiae City of Henderson.
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                 Staci J. Pratt and Allen Lichtenstein, Las Vegas,
                 for Amicus Curiae American Civil Liberties Union of Nevada Foundation.




                 BEFORE PARRAGUIRRE, SAITTA and PICKERING, JJ.

                                                 OPINION

                 By the Court, SAITTA, J.:
                             The Nevada Public Records Act (NPRA) requires
                 governmental agencies to make nonconfidential public records within their
                 legal custody or control available to the public. NRS 239.010. It also
                 entitles a requester who prevails in a lawsuit to compel the production of
                 public records to recover reasonable attorney fees and costs. NRS 239.011.
                             In the present case, a private telecommunications provider
                 contracted with Clark County to provide telephone services to inmates at a
                 county jail and to make records of the inmates' calls available to the
                 governmental agency operating the jail. At issue here is whether (1) this
                 information was a public record within the agency's legal custody or
                 control and thus subject to disclosure and (2) the requester of this
                 information was entitled to recover attorney fees and costs. We hold that
                 this information is a public record because it concerns the provision of a
                 public service and is within the agency's legal control. We also hold that
                 the requester was a prevailing party and thus entitled to recover attorney
                 fees and costs pursuant to NRS 239.011.
                                FACTUAL AND PROCEDURAL HISTORY
                             In 2011, Clark County and CenturyLink, a private
                 telecommunications provider, entered into a contract for the provision of
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                  inmate telephone services for the Clark County Detention Center (CCDC).
                  Under the contract, CenturyLink provides a telephone system that could
                  generate records of inmate telephone calls "for use in administrative and
                  investigative purposes." The records include, among other details, the
                  number dialed, the call duration, the station originating the call, the call's
                  cost, and the method of call termination. The system provides CCDC
                  personnel with access to historical detail records containing multiple types
                  of data, including calls to specified destination numbers, calls from specific
                  inmates, completed and incomplete calls, and calls from specific inmate
                  telephones. It allows the CCDC system administrators to print reports
                  based on recorded data.
                              In 2012, Blackjack Bonding, Inc., made a public records
                  request to the Las Vegas Metropolitan Police Department (LVMPD), the
                  governmental entity that runs the CCDC. In the request, Blackjack
                  sought "all call detail records from telephones used by [CCDC]
                  inmates . . . for 2011 and 2012"—specifically, "a call log that details the
                  description of the phone used. . . , the call start time, dialed number,
                  complete code, call type, talk seconds, billed time, cost, inmate id, and last
                  name." Additionally, Blackjack asked for "a list of all phones used by
                  inmates and the phone description, including whether the phone is used to
                  place . . . free calls, collect calls, or both." Blackjack subsequently
                  narrowed the scope of the requested information to calls to "all telephone
                  numbers listed on the various bail bondS agent jail lists posted in CCDC in
                  2011 and 2012" and conveyed that it understood "that the inmate names
                  and identification numbers may need to be redacted." LVMPD denied
                  Blackjack's request, claiming that it did not possess the records.



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                               Blackjack then petitioned the district court for a writ of
                   mandamus to compel LVMPD to provide the requested records. In
                   support of its petition, Blackjack submitted an affidavit from its president
                   stating that before making the public records request at issue, Blackjack
                   asked CenturyLink to provide call detail records regarding CCDC inmate
                   calls to Blackjack's number and received this data on the day that it made
                   the request. The district court granted in part Blackjack's request for
                   mandamus relief, stating that (1) the requested records were public
                   records that LVMPD had a duty to produce, (2) the inmates' names and
                   identification numbers must be redacted before production, and (3)
                   Blackjack would pay the costs associated with the production.
                               Blackjack also made a motion for attorney fees and costs. The
                   district court denied Blackjack's motion because it found that (1) the order
                   granting writ relief in part required Blackjack to pay the costs associated
                   with the production of the records and precluded LVMPD from paying any
                   expenses, including Blackjack's attorney fees and costs, and (2) Blackjack
                   was not a prevailing party.
                               LVMPD appealed the district court's order granting partial
                   writ relief to Blackjack. Blackjack appealed the district court's denial of
                   its motion for attorney fees and costs.
                                                  DISCUSSION
                   The district court did not err or abuse its discretion in granting in part
                   Blackjack's petition for a writ of mandamus
                               Pursuant to the NPRA, the public records and public books of
                   a governmental entity are subject to inspection by the public:
                               [A]ll public books and public records of a
                               governmental entity, the contents of which are not
                               otherwise declared by law to be confidential, must
                               be open at all times during office hours to
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                                inspection by any person, and may be fully copied
                                or an abstract or memorandum may be prepared
                                from those public books and public records.'
                   NRS 239.010(1) (2011).        If the public record contains confidential
                   information that can be redacted, the governmental entity with legal
                   custody or control of the record cannot rely on the confidentiality of that
                   information to prevent disclosure of the public record:
                                A governmental entity that has legal custody or
                                controlS of a public book or record shall not deny a
                                request made pursuant to [NRS 239.010(1)1 . .. on
                                the basis that the requested public book or record
                                contains information that is confidential if the
                                governmental entity can redact, delete, conceal or
                                separate the confidential information from the
                                information included in the public book or record
                                that is not otherwise confidential.
                   NRS 239.010(3) (2011).
                                LVMPD argues that the requested records are not public
                   records subject to disclosure because they (1) do not concern an issue of
                   public interest, (2) involve communications between private entities, and
                   (3) are not in LVMPD's legal custody or contro1. 2 Moreover, LVMPD
                   contends that it need not produce the requested records because Public


                         1-We apply the version of the NPRA that was in effect in 2012 when
                   Blackjack made its public records request. Thus, we do not address the
                   subsequent amendments to the NPRA.

                         2 LVMPD also argues that it had no duty to fulfill Blackjack's records
                   request because Blackjack purportedly acted to serve a business interest.
                   This argument is without merit because (1) LVMPD did not provide
                   evidence to support its assertion about Blackjack's motive and (2) the
                   NPRA does not provide that a requester's motive is relevant to a
                   government entity's duty to disclose public records. See NRS 239.010
                   (2011).

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                Employees' Retirement System v. Reno Newspapers, Inc. (PERS),      129 Nev.
                   , 313 P.3d 221 (2013), prevents it from having to create a new
                document to satisfy a public records request. Alternatively, LVMPD
                argues that if the requested records are public records, then a balancing-
                of-competing-interests test weighs in favor of nondisclosure because of the
                inmates' privacy interests and the burdens associated with production.
                            Blackjack argues that because LVMPD can acquire the
                requested information from CenturyLink at no cost, the information is
                within LVMPD's control. Blackjack also contends that the balancing-of-
                competing-interests test does not preclude production of the documents
                because LVMPD failed to offer a legitimate interest for denying the
                request for disclosure and because Blackjack resolved any privacy
                concerns by agreeing to redact the inmates' names and identification
                numbers.
                      Standard of review
                            We review a district court's grant or denial of a writ petition
                for an abuse of discretion. DR Partners v. Bd. of Cnty. Comm'rs, 116 Nev.
                616, 621, 6 P.3d 465, 468 (2000). However, we review the district court's
                interpretation of caselaw and statutory language de novo.            Liu v.
                Christopher Homes, LLC, 130 Nev. „ 321 P.3d 875, 877-78 (2014)
                (reviewing de novo the meaning and application of caselaw); Reno
                Newspapers, Inc. v. Haley, 126 Nev. 211, 214, 234 P.3d 922, 924 (2010)
                (reviewing de novo issues of statutory construction).
                      LVMPD has a duty to provide nonconfidential public records over
                      which it has legal custody or control
                            Here, neither party disputes that LVMPD is a governmental
                entity subject to the NPRA. Therefore, we consider whether the requested
                information is a public record subject to LVMPD's legal custody or control.
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                             The requested information is a public record
                             NRS 239.001(4) mandates public access to "records relating to
                 the provision of those [public] services" that are provided by "private
                 entities" on behalf of a governmental entity. "[P]ublic service" has been
                 broadly defined as "a service rendered in the public interest."     Merriam-
                 Webster's Collegiate Dictionary 942 (10th ed. 2000); see also V & S Ry.,
                 LLC v. White Pine Cnty., 125 Nev. 233, 239-40, 211 P.3d 879, 883 (2009)
                 (referring to a dictionary to ascertain the plain meaning of statutory
                 language); Black's Law Dictionary 1352 (9th ed. 2009) (defining "public
                 service" as "[a] service provided or facilitated by the government for the
                 general public's convenience and benefit").
                             Often, the "use of a telephone is essential for a pretrial
                 detainee to contact a lawyer, bail bondsman or other person in order to
                 prepare his case or . . . exercise his [constitutional] rights."   Johnson v.
                 Galli, 596 F. Supp. 135, 138 (D. Nev. 1984) (finding that a detainee's
                 reasonable access to a telephone is protected by the First Amendment).
                 Nevada law protects a detainee's right to use a telephone while detained
                 by providing that "[ably person arrested has the right to make a
                 reasonable number of completed telephone calls from the police station or
                 other place at which the person is booked." NRS 171.153(1) (emphasis
                 added). "A reasonable number of calls must include one completed call to
                 a friend or bail agent. . . ." NRS 171.153(2). NRS 171.153 does not limit a
                 detainee's right to make telephone calls when a private entity provides the
                 telephone services that are to be used by the detainee.
                             Here, the inmate telephone services provided by CenturyLink
                 assist LVMPD's facilitation of detainees' statutory rights to use a
                 telephone. The fact that telephone calls between private individuals are

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                detailed in the call histories does not alter the public service at issue
                because NRS 171.153(2) contemplates detainees making telephone calls to
                private parties. Therefore, these calls relate to the provision of a public
                service and the public has an interest in having governmental entities
                honor inmates' statutory rights.          See NRS 228.308 (defining "[p]ublic
                interest," albeit in the context of consumer protection, as "rights" that
                "arise" from "constitutions, court decisions and statutes"). Thus, the
                information that Blackjack requested is a public record because it relates
                to the provision of a public service. 3
                             The requested information was within LVMPD's legal control
                             Since the information that Blackjack requested was a public
                record, we now address whether it was in LVMPD's legal custody or
                control. This issue is relevant because a governmental entity's duty to
                disclose a public record applies only to records within the entity's custody
                or control. See MRS 239.010(4) (2011).
                             Here, substantial evidence indicates that LVMPD has legal
                control over the requested information. Under the contract for inmate
                telephone services, CenturyLink provides a telephone system that could
                generate "call detail records for use in administrative and investigative
                purposes." Thus, this contract indicates that the requested information
                could be generated by the inmate telephone system that CenturyLink




                      3 Because  the information that Blackjack requested is a public record
                pursuant to NRS 239.001(4), we decline to address whether it would also
                be a public record under NAC 239.091.

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                 provides and could be obtained by LVMPD. 4 Therefore, the information is
                 in LVMPD's legal control.
                       The recent PERS opinion does not preclude the duty to produce the
                       requested information
                             LVMPD argues that PERS precludes it from having to ask
                 CenturyLink to generate a new document that does not yet exist and thus
                 excuses it from fulfilling Blackjack's request.
                             In PERS, this court considered "the applicability of [the
                 NPRAI to information stored in the individual files of retired employees
                 that are maintained by [an agency]." 129 Nev. at , 313 P.3d at 222.
                 After concluding that such information must be disclosed, this court held
                 that to the extent that a records request required "PERS to create new
                 documents or customized reports by searching for and compiling
                 information from individuals' files or other records," the NPRA did not
                 require their production and disclosure. Id. at , 313 P.3d at 225.
                             The scope of the holding in PERS is gleaned from the facts of
                 that case. See Liu, 130 Nev. at , 321 P.3d at 878-80 (providing that the
                 meaning of an opinion is ascertained by reading it as a whole and by
                 considering the authorities on which it relies and the facts and procedure
                 involved). In PERS, this court did not approve of the agency having to




                       4 NAC   239.620 does not affect our holding that substantial evidence
                 shows that LVMPD had legal custody of the requested records for two
                 reasons. First, NAC 239.620 defines "legal custody" and does not address
                 "legal control"; thus, it is inapposite to our holding. Second, NAC 239.620
                 applies to state agencies, a type of governmental entity that LVMPD has
                 not demonstrated itself to be. See NAC 239.690 (defining a state agency
                 as a part of the executive branch of the Nevada state government).

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                "search[ ] for and compil[e] information from individuals' files or other
                records." 129 Nev. at , 313 P.3d at 225.         PERS did not address the
                situation where an agency had technology to readily compile the requested
                information. See id.     Instead, when an agency has a computer program
                that can readily compile the requested information, the agency is not
                excused from its duty to produce and disclose that information. See State,
                ex rel. Scanlon v. Deters, 544 N.E.2d 680, 683 (Ohio 1989), overruled on
                other grounds by State ex rel. Steckman v. Jackson, 639 N.E.2d 83, 89
                (Ohio 1994).
                               Unlike PERS, the record in this case reveals that Blackjack's
                request does not involve searching through individual files and compiling
                information from those files. Here, the inmate telephone services contract
                and the evidence showing that CenturyLink had previously fulfilled a
                similar records request demonstrate that CenturyLink had the capacity to
                readily produce the requested information. Moreover, during a hearing on
                the writ petition, LVMPD admitted through its attorney that CenturyLink
                could produce the requested information. Therefore, the requested public
                records are readily accessible and PERS does not prevent their disclosure.
                      The balancing-of-competing-interests test does not preclude
                      disclosure
                            The balancing-of-competing-interests test is employed "when
                the requested record is not explicitly made confidential by a statute" and
                the governmental entity nonetheless resists disclosure of the information.
                Reno Newspapers, Inc. v. Gibbons, 127 Nev. , 266 P.3d 623, 627
                (2011). This test weighs "the fundamental right of a citizen to have access
                to the public records" against "the incidental right of the agency to be free
                from unreasonable interference."     DR Partners v. Bd. of Cnty. Comm'rs,


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                   116 Nev. 616, 621, 6 P.3d 465, 468 (2000) (internal quotations omitted).
                   "The government bears the burden of showing that its interest in
                   nondisclosure clearly outweighs the public's interest in access."    PERS,
                   129 Nev. at , 313 P.3d at 225 (internal quotations omitted).
                                 Here, LVMPD fails to satisfy its burden under the test.
                   Without explanation, LVMPD contends that the request compromises the
                   private interests of inmates and is burdensome. However, LVMPD cannot
                   deny a public records request on the basis of confidentiality if it "can
                   redact, delete, conceal or separate the confidential information from the
                   information included in the public book or record." MRS 239.010(3) (2011).
                   Furthermore, Blackjack agreed to the redaction of inmate names and
                   numbers from the requested information, and the district court's amended
                   order required the redaction of the inmate names and identification
                   numbers. Thus, LVMPD fails to demonstrate that the requested
                   disclosure would compromise any privacy interests.
                                 Moreover, the district court mitigated any burdens associated
                   with the request by requiring Blackjack to pay the costs associated with
                   the production of the requested documents. 5 Thus, LVMPD fails to
                   demonstrate that the requested disclosure is• financially burdensome.
                   Therefore, the balancing-of-competing-interests test does not preclude its
                   duty to produce the requested information.




                         5 Thedistrict court's requirement that Blackjack pay LVMPD's costs
                   of production is consistent with MRS 239.052(1) (2011), which provides
                   that "a governmental entity may charge a fee for providing a copy of a
                   public record. [that shall] not exceed the actual cost to the
                   governmental entity" of producing the record.
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                The district court abused its discretion by refusing to award reasonable
                attorney fees and costs to Blackjack
                               In its challenge to the denial of its motion for attorney fees
                and costs, Blackjack disputes the district court's findings that Blackjack
                was not a prevailing party and that the prior order granting writ relief in
                part precluded LVMPD from having to pay Blackjack's attorney fees and
                costs.
                         Standard of review
                               We review a district court's decision regarding an award of
                attorney fees or costs for an abuse of discretion.        Albios v. Horizon
                Communities, Inc., 122 Nev. 409, 417, 132 P.3d 1022, 1027-28 (2006)
                (reviewing an award of attorney fees for an abuse of discretion); Vill.
                Builders 96, L.P. v. U.S. Labs., Inc., 121 Nev. 261, 276, 112 P.3d 1082,
                1092 (2005) (reviewing an award of costs for an abuse of discretion).
                               An abuse of discretion can occur when the district court bases
                its decision on a clearly erroneous factual determination or disregards
                controlling law. NOLM, LLC v. Cnty. of Clark,        120 Nev. 736, 739, 100
                P.3d 658, 660-61 (2004) (holding that relying on factual findings that "are
                clearly erroneous or not supported by substantial evidence" can be an
                abuse of discretion (internal quotations omitted)); Bergmann v. Boyce, 109
                Nev. 670, 674, 856 P.2d 560, 563 (1993) (holding that a decision made "in
                clear disregard of the guiding legal principles" can be an abuse of
                discretion).
                         NRS 239.011 entitles a prevailing requester to recover attorney fees
                         and costs
                               NRS 239.011 (2011) provides that "NI' 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

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                  officer has custody of the book or record." It does not preclude a prevailing
                  requester from recovering costs when the requester is to pay the agency
                  for the expenses associated with the production. See id. Thus, by its plain
                  meaning, this statute grants a requester who prevails in NPRA litigation
                  the right to recover attorney fees and costs, without regard to whether the
                  requester is to bear the costs of production. 6
                         The district court abused its discretion in failing to find that
                         Blackjack was a prevailing party
                              A party prevails "if it succeeds on any significant issue in
                  litigation which achieves some of the benefit it sought in bringing suit."
                  Valley Elec. Ass'n v. Overfield, 121 Nev. 7, 10, 106 P.3d 1198, 1200 (2005)
                  (emphasis added) (internal quotations omitted). To be a prevailing party,
                  a party need not succeed on every issue.          See Hensley v. Eckerhart, 461
                  U.S. 424, 434 (1983) (observing that "a plaintiff [can be] deemed
                  'prevailing' even though he succeeded on only some of his claims for
                  relief').
                              Here, the district court ordered LVMPD to produce nearly all
                  of the information that Blackjack sought in its petition for a writ of
                  mandamus. Since the record demonstrates that Blackjack obtained a writ
                  compelling the production of the telephone records with CCDC's inmates'
                  identifying information redacted, it succeeded on a significant issue and
                  achieved at least some of the benefit that it sought. Thus the district court


                         6 To the extent that the parties raise policy arguments that conflict
                  with NRS 239.011's plain meaning, they are without merit and do not
                  alter our analysis. See Williams v. United Parcel Servs., 129 Nev. „
                  302 P.3d 1144, 1147 (2013) (refusing to deviate from the plain meaning of
                  a statute and rejecting arguments that would require the court to read
                  additional language into the statute).

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                   abused its discretion by relying on the clearly erroneous finding that
                   Blackjack was not a prevailing party. See NOLM, LLC,       120 Nev. at 739,
                   100 P.3d at 660-61.
                                 Blackjack was a prevailing party and is entitled to recover
                   attorney fees and costs associated with its efforts to secure access to the
                   telephone records, despite the fact that it was to pay the costs of
                   production. See NRS 239.011 (2011). Accordingly, we reverse the district
                   court's order denying Blackjack's motion for attorney fees and costs and
                   remand the matter for the district court to enter an award for reasonable
                   attorney fees and costs consistent with this opinion. 7 See DR Partners,
                   116 Nev. at 629, 6 P.3d at 473 (remanding a case where a public records
                   requester prevailed "for an award to the [requester] of attorney's fees and
                   costs pursuant to NRS 239.011").



                                                                                     J.
                                                         Saitta




                                                    J.
                   Parraguirre


                                                ,   J.




                        7 We   have considered the parties' remaining arguments, including
                   those based on other jurisdictions' public records caselaw and the NPRA's
                   legislative history, and conclude that they are without merit.

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