IVGID Again Ordered to Turn Over Public Records (Updated)

The Incline Village General Improvement District has again been ordered to turn over public records. The order, by District Court Judge Lynn Simons, admonished the agency in a long-running battle for records requested by a citizen.

Incline Village resident Mark Smith requested emails from IVGID in 2017. The agency, through its hired attorney, Jason Guinasso, responded that it would take months to turn over the records, and 304 pages of emails would cost $1 per page after the first five pages.

The Nevada Public Records Act, however, states that governments can only charge 50 cents per page after “extraordinary use” of staff resources.

Simons yesterday, however, ruled that IVGID must again turn over the documents. A previous order directed IVGID to “provide 304 hard copies of non-privileged records at a rate of fifty (50) cents per page in lieu of providing the files electronically…”

IVGID cannot charge any fee for extraordinary resources for the production of the 304 pages because of its failure to give Mr. Smith notice of extraordinary charges in advance.”

But Simons changed her order: IVGID must now provide the documents at no charge. She also admonished IVGID for failing to comply with the first order in May.

“IVGID’s assertion that this Court incorrectly ordered the production of a post-litigation privilege log when Mr. Smith had only claimed he was entitled to a pre-litigation log is unwarranted,” she wrote. “To be exact, Mr. Smith’s complaint states he did not receive a privilege log demonstrating why a privilege applies to the 13,000 pages of documents that are being withheld and the basis for withholding that information.”

Further, Simons said that the crux of the case is IVGID’s failure to supply public records. “IVGID cannot charge any fee for extraordinary resources for the production of the 304 pages because of its failure to give Mr. Smith notice of extraordinary charges in advance.”

“The failure to give notice is fatal. Therefore, this Court deems it appropriate to modify its findings but does not grant the relief requested by IVGID,” Simons added.

IVGID has faced repeated complaints by citizens and media advocates for open meeting law violations and failures to produce public records.

“In sworn depositions about this matter, both the Chair and Vice Chair of the [IVGID] Board emphatically denied ever making the determination to invoke attorney-client privilege and, instead, suspected that determination was made by Guinasso,” said Robert Fellner of the conservative Nevada think tank, Nevada Policy Research Institute, which has been following this case. “This sentiment was echoed by IVGID’s general manager and public records officer as well.

“A third IVGID Board Member removed any doubt when he declared that, ‘the Board never had a chance to look at any’ of the more than 13,000 emails that Guinasso, ‘by his own fiat,’ determined were confidential pursuant to attorney-client privilege.”

Guinasso, in response to this article, disagreed with how it was presented:

I disagree with your characterization of what the Court ruled.  IVGID made available the public records Mr. Smith requested without a Court order.  However, he disagreed with (1) the format the records were provided in, and (2) what was charged to produce the public records.  Additionally, Mr. Smith had requested a privilege log (pre-litigation) for documents that were confidential and privileged communications between IVGID’s attorney and IVGID staff, which the Nevada Public Records Act does not require.  

You should really take time to read and understand the law, the issues before the Court, the pleadings, and the Court’s orders before you report on what you believe the Court ruled.   This is not an easy case.  It is a lot more nuanced than you have reported and it raises issues that have not been [addressed] by our Nevada Supreme Court.  

Nevertheless, IVGID and its legal staff respect the legal process and the court’s review of the matter.  IVGID has always worked to be good stewards of public records and the public records process. We will continue to [protect] the integrity of the District and we will vigorously protect the pubic records process from being abused.   IVGID is reviewing the Court’s order and considering its options.  

UPDATE: This article has been updated to include a response by Guinasso.

Read the order