Senate hears SB 2 96 on confidentiality agreements; counties and cities seek clarifications

Senator James Orangehall introduced Senate Bill 2 96 as a measure to increase transparency in communications between governmental entities and private parties. Under the sponsor’s amendment, the bill would prohibit governmental entities from entering into nondisclosure or confidentiality agreements unless the information covered is already confidential under state or federal law, and would declare such unlawful NDAs void.

The original draft included a second section that would have made predecisional or deliberative records involving private individuals public; stakeholders pushed back and the sponsor removed that section and worked with the Nevada Open Government Coalition on redrafting. The amendment before the committee at the hearing therefore focused on limiting the use of confidentiality agreements to circumstances where other law already makes the information nonpublic.

Opponents and cautious stakeholders argued the bill needs further refinement. Representatives of the Urban Consortium, the Nevada Association of Counties, Washoe County, Lyon County and the City of Henderson voiced concerns that the measure could interfere with economic-development negotiations, personnel settlement agreements and standard litigation protective orders. Warren Hardy of the Urban Consortium said his members appreciated that section 2 had been struck but asked for further dialogue so the bill would not “create additional problems” for competitive negotiations.

Washoe County counsel Cadence Matejevich asked for express exceptions for stipulated protective orders used in litigation discovery and for non-monetary personnel settlement agreements arising under collective-bargaining or disciplinary processes, noting that those records are often legitimately kept confidential for a time. Lyon County and the City of Henderson made similar points about the role of NDAs in early-stage economic-development discussions, where confidentiality for short periods can be necessary to secure property or investment commitments.

Sponsor Orangehall and counsel for supporters said the aim was to prevent misuse of confidentiality agreements to exclude stakeholders or avoid public process; Michael DeLee (counsel) said the strike of section 2 was intended to address stakeholder concerns and that the revised approach is narrower, focused on NDAs that conceal records that would otherwise be public. Committee counsel noted that courts also apply balancing tests to public records requests where statutes do not explicitly make information confidential, and suggested that if the committee intends to protect records that are confidential by case law, that intent should be clarified in the bill language.

Local-government representatives said current law provides remedies under the public-records statute (NRS Chapter 239) for disputes and urged the sponsor and committee to work with counties and cities to craft exceptions for personnel and litigation contexts. The committee closed the hearing with an invitation for additional stakeholder negotiations and amendments; no vote was taken at the session.