Judge rules IVGID must hand over documents for free

The Incline Village General Improvement District administration building located in Incline Village.
Rob Galloway / Tahoe Daily Tribune

INCLINE VILLAGE, Nev. — A Washoe County judge has ordered that Incline Village General Improvement district must now provide records requested by a local resident free of any charge.

In October 2017, Smith, a local resident, submitted a written request to look at public records from IVGID.

Smith said he was originally told by Jason Guinasso, special counsel for IVGID, he would get access to records within 60 days but he wasn’t given the copies until April 28, 2018.

“The involved lawsuit began with a broad request for approximately two years’ worth of email communications between IVGID’s General Counsel, General Manager, and Public Records Officer,” said IVGID’s public information representative Paul Klein. “Upon investigation into the breadth of the public records request, it was soon determined that the request implicated more than 13,000 pages of email communications, the vast majority of which would not qualify as ‘public records’ because, by law, they would be deemed confidential, or privileged communications.”

Guinasso told Smith in an email that 13,000 pages of documents were reviewed and Smith could have access to 304 pages.

Smith was told he would be charged $1 per page after the first five pages and the total would be $299 due to the extensive work spent reviewing the pages, according to IVGID.

Smith filed a complaint for lawsuit against IVGID on July 30, 2018 asking for a privilege log of the documents he did not receive as well as a lowered cost for copies.

“Because IVGID believed that the law does not require it to produce the original electronic version of the email communications or a privilege log before litigation was filed, it disputed these demands,” said Klein.

IVGID filed a Motion for Summary Judgment (MOSJ) but the order was denied.

The court issued a summary judgment in favor of Smith, stating IVGID must provide Smith hard copies of the records at 50 cents per page.

“Their actions undercut any claims that they care about transparency,” said Robert Fellner, director of policy of Nevada Policy Research Institute.

The Nevada Policy Research Institute is a nonprofit that focuses on education, labor, government transparency and fiscal policy.

IVGID feels it wasn’t acting against transparency but rather acting in the best interest of its constituents.

“IVGID feels it’s important to provide a brief explanation about why it has disputed this action as opposed to simply turning over the requested records,” said Klein. “While IVGID strongly believes in open and transparent government operations, it feels compelled to oppose any action which might compromise IVGID’s computer and electronic data systems, or which might result in substantial and unwarranted future administrative costs to the district and ultimately, its citizens.”

In response, IVGID filed a Motion for Amended or Additional Findings claiming the MOSJ, “contains irreconcilable inconsistencies that do not actually support entry of summary judgment in Mr. Smith’s favor.”

“It’s pretty rare to say to a judge, ‘thanks for ruling but you’re wrong,’” said Fellner. “It was like they threw a Hail Mary and it blew up in their face.”

IVGID argued they had the right to charge $1 because the request was an extraordinary use of personnel. The court said IVGID didn’t give notice of the cost and said, “the failure to give notice is fatal.”

The court told IVGID that they’ve changed their original stance, now IVGID must give the documents to Smith with no charge.

Fellner is impressed with the court’s decision.

“They’re in a losing battle just because they’re position of obstruction is illegal,” said Fellner, who also points out that escalating this situation through the courts has likely cost taxpayers “well over $50,000.”

The court also said IVGID must provide Smith a privilege log of the documents he did not receive.

“IVGID has steadfastly refused to produce the original electronic files of the email communications because it believes that doing so could compromise IVGID’s computer and data systems,” said Klein. “To date, the court has approved of IVGID’s actions in this regard. Second, IVGID has sought a legal determination that prior to the institution of formal litigation, IVGID had no obligation to prepare or produce a privilege log detailing the withheld records.”

Smith and his legal team have asked the court to release all 13,000 documents or at least have a judge review the documents and decide which ones Smith can see.

Klein went on to state that IVGID thinks the law is on their side when it comes to creating the log.

“If IVGID (or any other public entity) is forced to prepare and produce such a log in every case in which a claimed public record is withheld, IVGID would be forced to hire substantial additional staff to perform these functions,” said Klein. “To date, the court’s ruling on this issue remains unclear.”

Fellner said IVGID probably won’t have success if they appeal it to the state supreme court because the court usually rules in favor of transparency.

Smith is hoping voters will remember this case in the upcoming election, where three of the five members are up for reelection. He also said the Nevada state bar reached out to him asking him to file a formal complaint against Guinasso once the process is done.

“Over the next few weeks, the court may release several more rulings regarding this case,” said Klein. “IVGID and its legal team holds the utmost respect for the legal process and appreciates the court’s review of the matter. IVGID strenuously works to provide ethical and proper stewardship of the public records process in accordance with Nevada state law.”

No date has been set for the judge to review Smith’s most recent motion.

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