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This Is Reno wins partial court victory in public records lawsuit against Reno police (opinion)

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This Is Reno’s appeal to the Nevada Supreme Court in its first of two public records lawsuits against the City of Reno was decided Thursday.

We took the city to court after Reno Police and the City of Reno attempted to illegally charge for public records, failed to meet required deadlines and denied a number of public records requests on what we considered flimsy and ultimately illegal pretexts.

Prior to litigation, I contacted the mayor, city council members and others requesting help. None came. Most wouldn’t even respond. So we sued.

Washoe County Second Judicial District Court Judge Kathleen Drakulich, a former prosecutor,  determined RPD violated Nevada’s Public Records Act by failing to respond in the legally required timeframe. She denied all of our other claims.

City police attorney Mark Dunagan also argued that even if the city failed to follow the law, it should not have to pay damages – because attorneys and police not following the law is no big deal, apparently – despite the Nevada Public Records Act (NPRA) mandating otherwise.

The city settled by paying us $6,000 – a mistake, in hindsight, because city attorney Robert Bony dicked around by initially refusing to admit the city broke the law, despite Drakulich’s ruling. 

He attempted to cast the city’s illegal delays as “inadvertent.” 

That, of course, was untrue. RPD failed to provide records to This Is Reno for months, including body cam footage, and city and police officials would not respond to repeated requests for when the records would be produced. 

We appealed Drakulich’s ruling to the state court on two issues we believed unreasonably favored the city and not transparency. Attorney Luke Busby generously took the case.

Turns out, we were partially right.

Judges: Blanket records denials are not enough

Washoe County District Court Judge Kathleen Drakulich.
Washoe County District Court Judge Kathleen Drakulich.

The state court judges said Drakulich erred when she accepted RPD’s claims of complete confidentiality in a criminal report. Little evidence was provided by the city other than a terse affidavit by a police sergeant.

RPD denied This Is Reno a copy of reports into the allegations of former Washoe County Sheriff’s Sergeant Dennis Carry, who is facing a number of felony criminal charges. (He pleaded not guilty to all of them in April.)

RPD claimed release of the report would hinder fairness in Carry’s trial and reveal confidential information. Drakulich agreed seemingly without even looking at the materials, parts of which, the criminal complaint and affidavit are readily available from Reno Justice Court, despite RPD’s claims of confidentiality. We are now publishing the criminal affidavit, which we already submitted to the Nevada Supreme Court as an exhibit. Read it below.

“The Investigative Report is complex and voluminous, and contains detailed facts and information such as witness statements, interviews of witnesses and other involved parties, relevant emails, reports and other items that are not in the Carry Declaration,” city attorney Robert Bony alleged.

The state court disagreed.

“RPD provided only Sergeant [Trenton] Johnson’s affidavit as evidence,” the judges wrote. “The affidavit does little more than assert conclusions about the effect of disclosing the full investigative report. These generalized assertions do not explain why the records are confidential or why the records could not be redacted.”

District court ‘abused its discretion’

The Nevada Public Records Act mandates that records denials by governments include a statute or legal authority applicable to why they should not release the records. Local jurisdictions frequently deny records requests, with little or no explanation, based on the Donrey v. Bradshaw court decision of 1990

Donrey originated because RPD and the City of Reno denied investigative reports in the mid-’80s. The state court in Bradshaw essentially ordered the release of a complete investigative report to KOLO TV and what is now the RGJ. 

This was back when local news media were more interested in holding local governments and officials to account, rather than doing their bidding. Nevertheless, the local governments cite Donrey, continually, as a reason to deny things like investigative reports or any records associated with an open or unsolved investigation.

The Supreme Court in our case said Drakluch’s favoring RPD was insufficient.

“The government may not avoid a lawful public records request by simply providing a blanket statement of factors,” the justices wrote. “The 2007 amendments to the [Nevada Public Records Act] require courts to apply the balancing test in Bradshaw to favor the public’s interest in access over the governmental entity’s interest in nondisclosure when weighing the respective interest.

“The district court did not err in relying on Bradshaw, but the district court abused its discretion in determining that the balancing test weighed in favor of RPD without making sufficiently specific findings regarding the material in question,” the judges added.

The Supreme Court remanded our case back to Judge Drakulich to determine what portions of the report may be considered confidential. 

Police can continue body-cam redactions

The Supreme Court disagreed with This Is Reno’s argument that RPD was illegally redacting officer faces from body cam footage, a practice selectively followed by the city – some local attorneys have received unredacted bodycam videos from RPD – and also inconsistent with other Nevada law enforcement agencies.

We presented screenshots of body-cam footage from national law enforcement agencies where officer faces are not redacted. We were unaware of the uniqueness of RPD’s redaction practices until a YouTuber, who uses bodycam footage around the county in his reporting, contacted us. He was baffled as to why RPD redacts officer faces. 

Even the Las Vegas Metropolitan Police Department regularly publishes unredacted faces in body cam videos to its YouTube channel.

The state supreme court agreed with the city, however.

The redactions are lawful, the judges said.

“Any record produced from body-worn camera footage is subject to both the NPRA and any confidentiality provisions limiting public disclosure,” they wrote, citing a law that prohibits the release of officer photographs and addresses unless the officer consents to their release. “RPD appropriately redacted body camera footage to protect the confidential nature of the information pursuant to statute.”

What’s next

Absent any future legal action on this decision, This Is Reno will be working with partner organizations during the next legislative session to help ensure transparency in Nevada rises to the level as the rest of the country.

We also still have a second public records lawsuit against the city in the process of being appealed at the state court. As with the case decided Thursday, which was launched more than two years ago, it would be surprising to win the second case on all merits.

But the pattern and practices of the City of Reno, as enforced by the Reno City Attorney’s office, deserve to be challenged. This is especially true when the city cites the Bradshaw case it lost in 1990 as a reason to continually and illegally withhold public records. 

Read the top secret Dennis Carry criminal affidavit below

The Reno Police Department and City of Reno said this document is 100% confidential, and Washoe County District Court Judge Kathleen Drakulich agreed. This Is Reno obtained the unredacted affidavit from Reno Justice Court. 

Bob Conrad
Bob Conradhttp://thisisreno.com
Bob Conrad is publisher, editor and co-founder of This Is Reno. He has served in communications positions for various state agencies and earned a doctorate in educational leadership from the University of Nevada, Reno in 2011. He is also a part time instructor at UNR and sits on the boards of the Nevada Press Association and Nevada Open Government Coalition.

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