Judge rules against Incline Village General Improvement District in records lawsuit
A judge has sided with an Incline Village man who argued the Incline Village General Improvement District failed to comply with state’s public records act.
Judge Lynne Simons issued her judgment May 10 ordering IVGID to provide hard copies of requested documents to Mark Smith at a cost of 50 cents per page, as well as a “privilege log” detailing the documents that cannot be provided due to attorney-client privilege.
Since then, Smith has filed a request for attorney’s fees, and the defendants — IVGID, general counsel Jason Guinasso and IVGID Board Chair Kendra Wong — have filed a request for reconsideration.
The developments all stem from a lawsuit filed by Smith in July 2018.
In October 2017 Smith filed a request seeking nearly two years worth of communications records between Guinasso and both General Manager Steve Pinkerton and Susan Herron, IVGID’s records officer.
Smith and Guinasso spent months going back and forth on the request.
Guinasso informed Smith in April 2018 that 304 pages of roughly 13,000 pages were responsive to his request, and the rest were protected by attorney-client privilege.
After a cost exemption for the first five pages, Guinasso said the records would cost $1 per page for a total cost of $299.
During the whole back and forth, IVGID never disclosed any records and Smith never paid any money.
He filed his lawsuit asking for a judgment allowing him to inspect the records and declaring that IVGID violated state statute in preventing him from inspecting the records. He also sought a “privilege log” detailing information on records protected by attorney-client privilege.
The defendants — IVGID, Guinasso and Wong — argued Smith’s request was the latest attempt by residents to use the public records act as a form of harassment.
Since all the records could implicate attorney-client privilege, all the documents required review and copying prior to inspection, IVGID argued.
The district also contended that Smith’s request for a privilege log was not valid, as the public records law does not require a privilege log to be turned over before litigation.
Smith countered that he never asked for printed copies of the records and that IVGID never allowed him to inspect the privilege log, despite the fact the district said it had to create a log to support its case for charging for the records request.
In short, Smith argued that IVGID’s handling of the situation ran counter to the language and spirit of the state’s public records act.
The judge agreed and noticed her intent to rule in Smith’s favor — which effectively allowed both sides to file final arguments before issuing a final order.
Ultimately, Simons stuck with her original intent and ruled in favor of Smith.
She ordered IVGID to provide 304 hard copies at a rate of 50 cents per page. She also ordered IVGID to provide a privilege log including the date, author, recipient, whether an outside party was involved and a one word identifier for the outside party involved.
Days later, IVGID, Guinasso and Wong filed a request for reconsideration arguing, in part, that the order “is stated to be in favor of Mr. Smith and against IVGID, but the actual orders of the court favor IVGID in many respects.”
Days after the request for reconsideration, Smith filed a request seeking attorney’s fees and costs from IVGID — a number totaling $23,065.95.