The Incline Village General Improvement District (IVGID) faced yet another loss in court over its years-long refusal to turn over public records.
The Nevada Public Records Act (NPRA) mandates courts treat public records disputes with priority, but the IVGID case has been tied up in litigation at Washoe County’s Second Judicial Court since 2018.
Incline Village resident Mark Smith in 2017 placed an order for emails between then-IVGID attorney Jason Guinasso and IVGID’s then-general manager. Guinasso said that 13,000 pages of emails were confidential due to attorney-client privilege and 304 pages would cost Smith $1 per page to produce.
Smith filed suit in 2018.
Guinasso’s actions were deemed to violate state public records laws by District Court Judge Lynne Simons.
“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,” Simons wrote in 2019.
IVGID still protested. The records were ordered to be reviewed by an independent “special master” to determine which records were confidential. That review, by attorney Matthew Sharp, found most of the records to be public, in accordance with public records laws.
“IVGID cannot carry its burden of proof to establish the emails are attorney-client privileged on the mere fact that Mr. Guinasso received an email from IVGID or authored an email to IVGID,” Sharp wrote. “IVGID’s position that any communication between Mr. Guinasso and IVGID that does not include a general member of the public is privileged is also inconsistent with the policy underlying the attorney-client privilege and the NPRA.”
Nevertheless, IVGID persisted. Earlier this year, IVGID’s hired attorney Thomas Beko argued that making attorney emails public would be a hindrance and Sharp was incorrect.
“Without question, Master Sharp reviewed the email communications in a vacuum,” Beko said. “He is wholly unfamiliar with the daily activities of IVGID, and thus he has no way of knowing how the subject of the communication might implicate other matters. Mr. Guinasso had that knowledge, and given the state of the law in Nevada, he felt compelled to withhold the communication or face later arguments of waiver.”
Beko asked the court to reject its own ordered review of the records.
Simons wasn’t buying it.
“The Court does not find IVGID’s Objection meritorious,” she wrote last week. “IVGID cites no authority to suggest the Court cannot accept Master Sharp’s recommendations regarding the scope of attorney-client privilege when the Court specifically referred the matter to Master Sharp to do so considering the lack of case law on the subject.
“The Court finds Master Sharp’s definition of attorney-client privilege does not exceed that defined by this Court in prior orders,” Simons added. “As the Court agrees with Master Sharp’s definition of attorney-client privilege, and as Master Sharp has reviewed the individual records provided to him by applying that definition, the Court finds no error by Master Sharp and affirms and adopts his Recommendation.”
Based on this recent ruling, though, it’s not clear when IVGID will ultimately be forced to comply with the Nevada Public Records Act.
The NPRA also awards compensation to plaintiffs who prevail in public records disputes. Damages could top more than $100,000.