The Incline Village General Improvement District last week was ordered to produce records ordered by a citizen, Mark Smith, who wanted to see communications between IVGID and its attorney, Jason Guinasso.
Smith in 2017 requested email communications among Guinasso, IVGID’s general manager, and IVGID’s board clerk. The clerk, Susan Herron, responded that those emails were confidential attorney-client communications and not subject to the Nevada Public Records Act.
Guinasso later said that 304 of 13,000 pages were not confidential but then tried to charge Smith $1 per page after the first five pages. Nevada law, however, mandates that public records fees should not exceed $.50/page after “extraordinary use” of staff time is expended.
Guinasso, through his attorneys defending against the public records complaint,
Not so, said Second Judicial Court Judge Lynne Simons.
“IVGID failed to give Mr. Smith notice of claimed extraordinary charges in advance and therefore is precluded from recovering them,” wrote Simons. “Defendants did not provide Mr. Smith with an estimate of costs prior to processing the request.
“Moreover, Mr. Smith requested to view the documents in their original format. Defendants cannot charge Mr. Smith for the cost of copying because it was their preferred method of organization.”
A government entity must provide public records requestors legal authority explaining nondisclosure when a public records order is denied. Simons said IVGID failed to do so.
“The requesting party generally is entitled to a log containing a factual description of each withheld record and a specific explanation for nondisclosure unless, for example, the state entity withholding the records demonstrates that the requesting party has sufficient information to meaningfully contest the claim of confidentiality without a log,” Simons maintained.
IVGID instead gave Smith a blanket claim of confidentiality for about 1,000 emails, something Simons called
The embattled IVGID and its board of trustees have repeatedly been found in violation of Nevada’s open meeting law and is regularly challenged over its handling of public records. Guinasso also said that IVGID prevails i most of its open meeting law complaints.
He also said Simons “did a reasonable job. It took a lot of man-hours to review all of the documents — two years worth of communications — to determine if privilege applied or did not apply. Splitting it at $.50/page makes sense to me. Requiring a privilege log makes sense [as well].”
Despite ongoing complaints and rulings against the agency, Guinasso said last year that IVGID has never violated the law. He clarified that that statement was in reference to an IVGID parcel acquisition process.
“IVGID has not violated any law or acted in any way to harm the public,” Guinasso wrote in an editorial on RGJ.com.
UPDATE (5/16/19): The article has been updated to include a response from Guinasso, IVGID’s legal counsel. 5/20/19: Guinasso disputed the statement that IVGID has been found in repeat violation of the open meeting law. While IVGID has had a number of open meeting law violations, it also prevails against most complaints filed for open meeting law violations, Guinasso said.