We tried the diplomatic approach – to no avail. For months, the Reno Police Department denied, delayed and otherwise pretended stewardship of its records was an afterthought to regular, more important stuff.
RPD serially failed to make records available within legally mandated time frames. I contacted the mayor, city council members and others requesting help. When none came, we sued.
A district court judge ruled in our favor on the point that RPD failed to comply with deadlines, but she denied our case on two other main points.
Washoe District Court Judge Kathleen Drakulich correctly noted, “RPD set numerous deadlines to Petitioner in which they asserted they would provide the necessary records to Petitioner. However, RPD failed to comply with these self-imposed deadlines, and did not update Petitioner regarding this matter for months.”
The city attorney’s office, via its lawyer Mark Dunagan, said because RPD ultimately provided some of the people’s records, even after we had to hire an attorney to get them, RPD should not have to pay attorney fees.
“Petitioner seems to argue that fees could be based on the delay alone. I don’t think the Petitioner is entitled to fees just based on the failure to respond within five business days for several reasons,” he claimed.
That’s not what the law says.
“If the requester prevails, the requester is entitled to recover from the governmental entity that has legal custody or control of the record his or her costs and reasonable attorney’s fees in the proceeding,” Nevada Revised Statutes note.
We lost on two other issues.
The first of the two is whether RPD can make a wholesale denial for documents pertaining to open criminal cases. RPD is denying records requests with terse statements saying that because the case is still under investigation, they don’t have to provide the records. It’s a practice that effectively means the public is shut out of any criminal investigation until the law enforcement agency decides otherwise.
“Drakulich’s ruling unnecessarily kowtowed to government interests, flying in the face of the spirit of Nevada’s Public Records Act.”
At issue is the arrest and charging of former Washoe County Sheriff’s Sergeant Dennis Carry, who was married to two people at the same time, one of whom is a federal magistrate. He was charged with numerous felonies. We wanted documents related to his case, and the city denied them all.
“We have to weigh the interests at stake,” Dunagan argued. “Does Dr. Conrad need the details of Mr. Carry’s romantic relationship? Maybe he does, and maybe there is a public interest there, but the job of the government is to weigh all those interests, not just the sort of salacious public interests.”
The city’s response, in addition to being insulting, is fundamentally un-American. It presumes only government officials get to decide whether other government agents, and their illegal or “salacious” behavior, can be made public. Former presidents Nixon, Clinton and Trump would approve of this logic.
There’s no indication in Drakulich’s ruling that she actually reviewed Carry’s criminal documents she determined RPD could keep confidential. She appeared to accept, without any hint of skepticism, the city attorney’s belief that all documents associated with Carry’s case should be kept confidential – even, apparently, the ones we already have in our possession that comprised highly detailed reporting on the case.
The second point denied by Drakulich pertains to bodycam footage.
Body cam usage by law enforcement didn’t exist when the provision of the Nevada Peace Officers Bill of Rights was enacted. The way the law is written, officers can prevent the release of their address and photograph unless they are charged with a crime.
Here again, Drakulich ruled in favor of cop privacy over public interest.
“The Petitioner fails to articulate how an unredacted copy of the BWC would advance [interests of homelessness and current issues involving law enforcement],” she wrote.
Perhaps the judge hasn’t paid attention to the news in the past five years.
The ACLU of Nevada’s Executive Director Athar Haseebullah explained it this way:
“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.”
The city attorney’s office doubled down by saying release of officer images would subject police to “public ridicule.”
RPD’s body cam redactions come at great taxpayer expense and, ironically, contribute to delays in making records public. Prior to any video of police being released to the public, staff have to spend considerable time redacting officer faces – and the backs of their heads, apparently, as the image above shows – from body cam video files.
It’s a farcical practice. Members of the public and other city employees don’t get the same benefit when their faces are broadcast on police body cam videos.
“The Court finds the City has established that an officer has a nontrivial privacy interest in protecting [an officer’s] likeness from disclosure, as this could make them more likely to suffer public ridicule and become more easily identifiable to the public,” Drakulich determined.
The practice of redacting officer faces is also not shared across the country or even in Nevada. We provided evidence as much – dozens of screengrabs of publicly available videos from around the country showing unredacted law enforcement officers in action.
We believe, of course, Drakulich’s ruling unnecessarily kowtowed to government interests, flying in the face of the spirit of Nevada’s Public Records Act. The Act blatantly maintains government privacy interests have to be construed narrowly.
Drakulich, instead, went in the opposite direction. That’s why we filed an appeal last week of the case to the Nevada Supreme Court. Fortunately, the state court has a better track record of entertaining the whys and wherefores of public records and Nevada’s longstanding spirit of openness.
Regardless of how the case ends up, it should be clear why an external review of this decision is needed.