Judge weighs in on Incline district records lawsuit
April 12, 2019
A judge indicated she plans to rule against a lawsuit alleging the Incline Village General Improvement District failed to comply with state's public records act.
Judge Lynne K. Simons rejected a motion on behalf of the district 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 district general counsel Jason Guinasso and both General Manager Steve Pinkerton and Susan Herron, the district's records officer.
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 asking the court to issue a judgment allowing him to inspect the records and declaring the district violated Nevada law in preventing him from inspecting the records.
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The district eventually asked the judge to issue a summary judgment, arguing Smith's request was the latest attempt by residents to use the public records act "not as a legitimate tool to gain access to public information, but rather, as a weapon to debilitate (the district'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, the district 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 the district 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 the district's handling of the situation ran counter to the language and spirit of the state's public records act.
In denying the district'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 the district 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 Tahoe Daily 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 said.
Smith still has an outstanding motion asking the judge to evaluate the other 13,000 pages.
"We'll see what the judge rules."