Judge weighs in on lawsuit against Incline Village GID
A judge has noticed her intent to rule on a lawsuit alleging the Incline Village General Improvement District failed to comply with state’s public records act.
Which party will come out on top depends on who you talk to.
Judge Lynne K. Simons rejected a motion on behalf of IVGID asking for a summary judgment and instead noticed her intent to rule in favor of the plaintiff, Incline resident Mark Smith.
Smith filed a lawsuit in July 2018 after trying for more than nine months to obtain two years worth of communications records, including emails, between IVGID general counsel Jason Guinasso and both General Manager Steve Pinkerton and Susan Herron, IVGID’s records officer, the Tribune previously reported.
Smith and Guinasso went back and forth, with Guinasso eventually informing Smith in April 2018 that 304 pages of roughly 13,000 pages were responsive to his request — the rest were protected by attorney-client privilege.
Due to the extensive amount of time spent on Smith’s request, Guinasso said it would cost $1 per page after the first five pages, meaning Smith would have to pay $299 for the responsive records.
Smith filed his suit, and asked the court to issue a judgment allowing him to inspect the records and declaring that IVGID violated state statute in preventing him from inspecting the records.
IVGID eventually asked the judge to issue a summary judgment, arguing Smith’s request was the latest attempt by residents to utilize the public records act “not as a legitimate tool to gain access to public information, but rather, as a weapon to debilitate IVGID’s operations with harassing voluminous, and extraordinarily time consuming public records request,” according to court documents.
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” — a log of the emails withheld due to attorney-client privilege — 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 — a factor that would presumably increase the cost — 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.
In denying IVGID’s request for a summary judgment, Simons noticed her intent to rule in favor of Smith.
In her stated intentions, Simons said the 304 pages of records should be provided at 50 cents per page — not $1 per page — after the first five pages.
Simons also said IVGID should provide a privilege log identifying “any withheld communication by date, author, recipient, whether a party is party to the communication, and a one word identifier for the property or outside party involved.”
Guinasso told the Tribune they intend to file a response disputing the 50 cent charge per page and the production of the privilege log.
All in all, he said it appeared the judge was trying to balance both arguments in her intended order.
“That’s not a bad outcome for us…” Guinasso said.
Smith see things differently.
“(The judge) essentially granted me what I asked for,” he told the Tribune.
Smith still has an outstanding motion asking the judge to evaluate the other 13,000 pages.
“We’ll see what the judge rules.”
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