Washoe County District Court Judge Kathleen Drakulich this week awarded costs and attorney fees to This Is Reno in its public records lawsuit against the Reno Police Department.
Last year we sued RPD for failing to follow Nevada public records laws. Drakulich partially agreed. She said RPD failed to respond to a number of This Is Reno’s public records orders within the time frame required by law – up to seven months in one case.
Drakulich, however, said RPD properly denied the release of documents relevant to open investigations. She also said RPD can continue to redact officer faces from body worn cameras, a practice This Is Reno attempted to challenge.
Body cam redaction policies are inconsistently applied in Nevada. Most other states in the country do not redact officer faces, a point the Reno city attorney said was irrelevant.
In Nevada, some law enforcement entities are redacting officer faces from videos. That includes the back of officer heads, in RPD’s case.
The reason for the redactions, according to the Reno city attorney: The law prohibits the release of an officer’s photograph to the public unless the officer gives permission for the release.
The Las Vegas Metropolitan Police Department regularly publishes body cam videos without facial redcations. Deputy Reno City Attorney Mark Dunagan told Drakulich Las Vegas is violating the law.
“My office doesn’t represent those agencies, and if it did, we would tell them that they’re violating a police officer bill of rights by disseminating photographic images of their police officers,” Dunagan said.
RPD also selectively redacts body cam videos. Videos given to local attorneys have not been redacted, but RPD blurs officer faces from videos it releases to the public and news media.
Decision criticized
A recently retired law enforcement officer in the area called Drakulich’s decision a disaster.
“Under the current interpretation of case law used by the city to deny public records requests that ‘are under investigation,’ the city has cited the finality of a case and it’s ‘closure’ as only when they receive the adjudication from the court of jurisdiction,” the retired officer said, speaking on a condition of anonymity. “As the court is aware, this could take years. The court is also aware that not all cases get an adjudication from a court which means the City can deny public inspection of criminal cases indefinitely, apparently.”
“Furthermore, under the current denial schemes, a case could be tried, in public, by a jury, and still be considered ‘under investigation’ by the Reno Police Department and the City Attorney,” they added.
Nevada ACLU’s Executive Director Athar Haseebullah called Drakulich’s ruling dangerous.
“The privacy interests this court attempts to carve out within this decision are draconian and dangerous,” he said. “Under this court’s analysis, if incidents like officer Derek Chauvin’s murder of George Floyd happened here in Nevada, the video of that incident, which led to some measure of accountability for deadly police misconduct, would likely have been redacted, and the public would have been kept in the dark about what really occurred.”
“Accountability cannot exist without transparency, and this court attempting to shield law enforcement from scrutiny only endorses unchecked and abusive police practices,” Haseebullah added.
The city argued police officer images released to the public would subject officers to shame and ridicule.
Dunagan, with the city attorney’s office, argued, “you can still hold the police department accountable for the way its police officers are acting without improperly spreading around … the photographic image of the police officer.”
But RPD failed to provide records to This Is Reno for months, including body cam footage, and would not respond to repeated requests for when the records would be produced.
Dunagan further argued This Is Reno is not entitled to recoup legal costs because RPD ultimately provided records and because RPD is understaffed.
RPD only provided some of the records after This Is Reno retained legal counsel to combat the city’s records denials and unresponsiveness.
“I don’t think the petitioner is entitled to fees based just on the failure to respond within five business days,” Dunagan said. “I don’t think petitioners met the burden just by listing instances of delay. And I would also argue, you know, there’s no bad faith here, given the reality of what … RPD public records staffing is.”
Drakulich disagreed.
“RPD set numerous deadlines to Petitioner in which they asserted they would provide the necessary records to Petitioner,” she wrote. “However, RPD failed to comply with these self-imposed deadlines, and did not update Petitioner regarding this matter for months.
“A failure to communicate with Petitioner for months is not a ‘reasonable effort.’ Petitioner is entitled to costs and fees for these delays,” she added.
