Lack of penalties encourages governments to defy public records law

Robert Fellner

Nevadans can expect to remain in the dark about matters of vital public interest, as long as government officials are free to violate the state’s public records law without consequence.

While the law is explicit in recognizing the importance of openness in government, this mandate is severely undermined by the lack of penalties for officials who choose to violate the law.

One recent example that highlights the problem of passing a law without penalties can be found at the Washoe County School District, which refuses to release a taxpayer-funded investigation into allegations of abuse and bullying within the special education department.

Despite perfectly fitting the definition of a public record — the report was paid for with taxpayer money and reflects material of profound public importance — the school district refused to provide a copy to the RGJ, prompting the newspaper to sue.

The RGJ prevailed in district court, after the judge sided with common sense and found that the report was indeed a public record and must be disclosed. Undeterred, the school district chose to appeal the matter to the Nevada Supreme Court, which ensures that the report will remain hidden for at least another year, before they inevitably lose there and are finally forced to comply with the law.

Meanwhile, all of the district’s legal bills will be paid by the very taxpayers whose rights to an open government are being trampled by the district’s hostility to the law and transparency.

And that’s the problem in a nutshell. Because the officials choosing secrecy know they will face no penalty of any kind, even when the court finds their actions unlawful, they have nothing to lose by thumbing their nose at the law.

In fact, it could be argued that the incentives are such for government attorneys to err on the side of nondisclosure and noncompliance, given the resulting legal action could be used as justification to increase their budget next year.

Sadly, albeit predictably for the reasons outlined above, the examples of other governments engaging in similar misconduct are far too numerous to list here, but one recent example bears mentioning.

Earlier this month, the Incline Village General Improvement District was sued by resident Mark Smith for violating the law in one of the most brazen ways imaginable.

Smith had requested copies of emails between IVGID General Counsel Jason Guinasso and other executive staff to better understand the rationale and basis for recent district decisions.

In his request, Smith explicitly asked that the emails be provided in digital format, while referencing IVGID’s own policy that electronic records are to be provided without charge — as there is obviously no cost associated with making a copy of an email or other electronic record.

After a nearly year-long delay, Guinasso finally agreed to turn over the requested emails, but only if Smith first paid $299 to cover the alleged cost of printing 299 pages worth of emails.

Apparently, some districts are even willing to violate their own policy, in addition to state law, to obstruct access to public records.

Obviously there is a very simple solution to all of this — the Legislature needs to treat the state’s public records law the same as every other law, and include penalties for those who knowingly violate it.

Courts should be given the discretion to impose monetary sanctions above and beyond the prevailing requester’s attorney’s fees when it finds an agency has acted in bad faith.

And, most importantly, courts must be allowed to hold the government official who made the determination to withhold the record, charge an exorbitant fee, or similarly obstruct access in a bad-faith manner personally liable for the prevailing requester’s fees.

Only then will Nevadans receive the transparent and open government that has been promised to them for over 100 years.

Robert Fellner is the Nevada Policy Research Institute’s policy director. This piece first appeared in the Reno Gazette-Journal.

Robert Fellner

Robert Fellner

Director of Policy

Robert Fellner is NPRI’s policy director and joined the Institute in December 2013. Robert has written extensively on the issue of transparency in government. He has also conducted legal research and assisted in crafting legal arguments for numerous public records-related lawsuits, including one which prevailed at the Nevada Supreme Court, resulting in a landmark decision that protected and expanded Nevadans’ rights to access and inspect government records.

An expert on government compensation and its impact on taxes, Robert has authored multiple studies on public pay and pensions. He has been published in Business Insider, Forbes.com, the Las Vegas Review Journal, the Los Angeles Times, RealClearPolicy.com, the San Diego Union-Tribune, the Wall Street Journal, ZeroHedge.com and elsewhere.

Robert has lived in Las Vegas since 2005 when he moved to Nevada to become a professional poker player. Robert has had a remarkably successfully poker career including two top 10 World Series of Poker finishes and being ranked #1 in the world at 10/20 Pot-Limit Omaha cash games.

Additionally, his economic analysis on the minimum wage won first place in a 2011 George Mason University essay contest. He also independently organized a successful grassroots media and fundraising effort for a 2012 presidential candidate, before joining the campaign in an official capacity.