New public records lawsuit highlights why the law needs teeth

Nevada governments are becoming more brazen in their willingness to flout the state’s public records law, a direct result of the fact that officials who choose to knowingly violate the law face no penalty of any kind.

Yesterday’s public records lawsuit filed against the Incline Village General Improvement District (IVGID) by area resident Mark Smith is just the latest example of that agency’s long history of fighting transparency.

IVGID was previously cited by the Attorney General’s Office for numerous violations of the state’s open-meetings law, as well as for having actively “discouraged public participation” in its public meetings.

Last year, NPRI filed a formal complaint with the Attorney General after learning that IVGID adopted the felony-level crime of concealing public records as a matter of policy.

In fact, IVGID has even gone so far as to deny its own Board Treasurer access to key financial records.

Against that backdrop, the mishandling of Smith’s recent request for copies of emails between IVGID General Counsel Jason Guinasso and other executives is par for the course, according to NPRI Policy Director Robert Fellner:

“The pattern alleged in Smith’s lawsuit is consistent with IVGID’s well-documented hostility to transparency. First, IVGID unlawfully denied the request outright, forcing the requester to educate IVGID of its obligations under the law just to get the request processed. After it became clear that its initial denial was unlawful, IVGID then agrees to provide the records, but delays production for nearly an entire year only to then demand payment of an unlawful fee before agreeing to turn over the records.”

Because Nevada imposes no penalties for government officials who unlawfully withhold public records, Nevadans are being denied their fundamental right to a transparent and accountable government, said Fellner.

“By failing to impose penalties on government officials who violate the state’s public records law, the Legislature has created a loophole the size of a Mack Truck that some governments are exploiting in an ever-more flagrant fashion.”

Beyond IVGID, Fellner points to recent examples like

• The state retirement system denying a request for information expressly ruled public just months prior by the Nevada Supreme Court.
• The Clark County School District’s denial of a request for a copy of an employee directory.
• CCSD’s denial of records relating to its decision to bar a school trustee from the property.
• Metro’s denial of records relating to the 1 October shooting — creating a level of secrecy and uncertainty that almost certainly increased the wild speculation and fearmongering that followed in the immediate aftermath.
• The Washoe County School District hiding a taxpayer-funded investigation regarding allegations of bullying and harassment within its special education department.

While Fellner said he’s confident Smith will ultimately prevail in his lawsuit, the agency will still have succeeded in keeping the public in the dark for the many years the legal process takes to complete — highlighting just how broken the current system is.

“The Legislature was correct to recognize the importance of a transparent government,” said Fellner. “It now needs to follow the same process used for all other laws and impose penalties on those who break this law. Only then will Nevadans realize the transparent and accountable government that has been promised to them for over 100 years.”

Viable solutions include amending the law to allow courts to hold government officials violating the law personally liable for the requester’s fees, as well as allowing for additional monetary sanctions above and beyond the prevailing requester’s attorney’s fees, he said.

You can read a copy of Smith’s lawsuit by clicking here.
For more information, please contact NPRI Policy Director Robert Fellner at 702.222.0642 or via email at RF@NPRI.ORG.