Lawsuit: Incline Village General Improvement District violated public records act
August 27, 2018
INCLINE VILLAGE, Nev. — A North Shore resident has filed a lawsuit against the general improvement district and several officials for alleged violations of the state's public records act.
Mark Smith filed the lawsuit against the Incline Village General Improvement District in late July, more than nine months after he filed his initial public records request.
Smith's complaint details an exhaustive and cumbersome process in an attempt to access and inspect all communications, including emails, between IVGID general counsel Jason Guinasso and both General Manager Steve Pinkerton and Susan Herron, records officer, during a nearly two-year period.
In an email to the Tribune, Guinasso rejected the allegations in the lawsuit, although he said on Aug. 22 that neither he personally nor the district had not been served with a summons and complaint.
"For the time being, I can tell you that IVGID has not violated the Nevada Public Records Act or 'mishandled' public records requests," Guinasso said.
In Smith's recounting of events, he was contacted by Herron on Oct. 19, 2017, after he submitted his records request. She informed him that all communication with the general counsel was privileged and confidential, and therefore couldn't be released.
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Smith then met with Guinasso shortly after. Guinasso told Smith the request would take about 60 days and that the records would be produced on or before Jan. 8, according to the complaint.
On Jan. 9, Guinasso emailed Smith to tell him it would take an additional two weeks to fulfill the request, according to Smith's complaint. Guinasso sent another correspondence to Smith on Feb. 2 stating he would need the month of February to fulfill the request.
Another correspondence sent by Guinasso on April 27 informed Smith that "13,000 pages were printed for review and have been determined to be privileged and will not be disclosed …" The message also said Smith should be responsible for the costs of printing those pages, but that he wouldn't at that time.
However, Guinasso did inform Smith that he would be responsible for paying $299 for the pages that were not privileged.
Smith pointed to his original request, which asked to inspect the "original, unaltered electronic files" in the event the requested record was electronic — effectively meaning the printing of the records was unnecessary.
Citing IVGID policy that allows requested records available in digital form to be provided at no charge, Smith reiterated his record request on June 7.
Smith has yet to receive any of the requested documents, according to the lawsuit, which states the incident is "just the latest mishandling of a public records request in a long list of similar non-compliant responses to records requests in which IVGID has failed to comply with Nevada's Public Records Act under the direction of Wong and Guinasso."
Wong would be IVGID Board of Trustees Chair Kendra Wong, who was identified in the lawsuit along with the district and Guinasso.
Wong did not respond to an email sent Wednesday asking for comment.
IVGID General Manager Steve Pinkerton affirmed Guinasso's statement saying he had not been served with the complaint, and therefore was not in a position to comment on the case.
Stephanie Rice, Smith's attorney in the case, confirmed Thursday that a summons had been issued, although she was unsure if IVGID had been served. The district and others identified in the lawsuit will have 20 days to respond once they are served, Rice added.
Smith asked the court to issue a judgement allowing him to inspect the records and declaring that IVGID violated state statute in preventing him from inspecting the records. Further he asks that the court retain jurisdiction over the district until its "unlawful" behavior ends. He also asks that he be repaid for all expenses endured during the process.
This is not the first time Smith and the district have clashed over a records request.
Smith, a prominent activist for the humane treatment of bears around Tahoe, had filed requests pertaining to IVGID's dealings with Waste Management, as well as other documents, according to a report in the Nevada Journal, the media arm of the Nevada Policy Research Institute, a conservative think tank based in Las Vegas.
Smith was eventually informed that district policy only required emails be retained for 30 days, which, the Nevada Journal wrote, was a clear violation of the law, amounting to a felony-level crime.
The situation led NPRI to file a formal complaint with the Nevada Attorney General.
Regarding the recent lawsuit by Smith, NPRI Policy Director Robert Fellner issued a statement condemning IVGID's actions and criticizing a perceived loophole in state law.
"By failing to impose penalties on government officials who violate the state's public records law, the Legislature has created a loophole the size of a Mack Truck that some governments are exploiting in an ever-more flagrant fashion."