A complaint was filed this week in district court alleging that the Incline Village General Improvement District (IVGID) is illegally withholding public records.
The complaint names IVGID, its attorney, Jason Guinasso of the Hutchison & Steffen Attorneys firm, and Kendra Wong, chair of the IVGID board of trustees, as defendants.
Plaintiff Mark Smith has a running battle with IVGID over public records. The Nevada Research Policy Institute, a conservative Nevada think tank, has been reporting on the case, but this week an official complaint was filed locally.
“The pattern alleged in Smith’s lawsuit is consistent with IVGID’s well-documented hostility to transparency,” said NPRI’s Robert Fellner. “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.”
The complaint alleges IVGID deliberately sought to withhold public records from Smith citing attorney (Guinasso) – client (IVGID) privilege.
But Smith noted that his request was specifically excluding privileged communications. IVGID retorted, however, that “all communications with the District’s General Counsel are attorney/client privileged and confidential.”
Records with confidential information should be redacted, according to the Nevada Public Records Act. Case history shows that a log of redactions should be included in the records response.
That didn’t happen, Smith alleged. In addition, he said that he was requesting digital documents, which should be turned over at no charge, but Guinasso printed the documents only to then attempt to get Smith to pay up to $1 per page.
Nevada law only allows for print charges of up to $.50 after extraordinary use of staff time to produce documents.
“To date, (Smith) has not received access to inspect the requested records or the privilege log demonstrating why a privilege applies to the 13,000 pages of documents that are being withheld and the basis therefore,” the complaint maintains.
Guinasso, who did not respond to a request for comment by the time of publication, said in a letter to Smith that his “request is so overbroad (that) the request is oppressive to IVDIG’s resources (but that) IVGID continues to strive to maintain the spirit of transparency it was created to maintain…”
Guinasso later said that Smith’s request took about 120 hours of legal counsel’s time to print and review.
“Since you were not provided an estimate of costs before this records request was completed, we will not be charging you for the attorney time and staff time billed for this matter,” Guinasso wrote. “However, in the future should a records request require this many man hours, you will be directly billed for the hours of general counsel and staff time to accomplish such a burdensome request.”
Guinasso also suggested that Smith could be held responsible for IVGID’s printing of 13,000 pages.
The state’s public records act, however, asserts that maintaining and producing public records is a part of an agency’s duties:
“if a request for a copy of a public record would require a governmental entity to make extraordinary use of its personnel or technological resources, the governmental entity may … charge a fee not to exceed 50 cents per page for such extraordinary use. Such a request must be made in writing, and upon receiving such a request, the governmental entity shall inform the requester, in writing, of the amount of the fee before preparing the requested information.”
There is also no provision in the Nevada Public Records Act to charge for staff or attorney time.
Public agencies often cite such reasons to avoid coughing up public records. Nevada courts, however, have historically ruled in favor of openness.
Smith is seeking a judicial review of the case. If found in his favor, IVGID would be responsible for paying Smith’s attorney’s fees, in accordance with Nevada law.
Requests for comment were left with Guinasso and IVGID’s general manager, Steven Pinkerton.
UPDATE (Aug. 3, 2018): The complaint has been added to the story. Read it below.
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