A lawyer for a government watchdog group argued in court Tuesday that as a member of the public, Karen Gray should have access to Clark County School Board members' e-mail and cell-phone records without having to pay a $4,179 fee.
Lee Rowland of the American Civil Liberties Union of Nevada said the prohibitively steep fee was a "de facto ban" on the public's right to public records.
A lawyer for the Clark County School District responded that the fee was reasonable given the onerous request for a year's worth of records and a necessary precaution against letting gadflies bury the school system with information requests.
If the schools did not charge a fee, "we would be dealing with people like Ms. Gray daily," said school district attorney Bill Hoffman. "A handful of people could literally shut down the government."
Gray wants e-mail records to investigate possible violations of the open meeting law, including e-mails that she believes were exchanged between district staff and School Board members during School Board meetings.
Gray also wants the information for research she is doing on school law. She said she wants the Legislature to close a loophole that allows School Board members to cede much of their policy-making authority to the superintendent.
As a consequence, she said, the public loses oversight over public policy formation. Gray is a researcher for the Nevada Policy Research Institute, a conservative advocacy group, but is acting on her own behalf in the public records dispute.
District Judge Susan Johnson took the matter under advisement but seemed to relish the case.
"Cool issues," Johnson said.
The judge, for instance, appreciated the district's position of wanting to protect privacy because School Board members get confidential requests.
Mary Beth Scow, president of the School Board, "probably gets e-mails from parents asking why their child got a B in a class," the judge noted.
In an interview outside of court, Gray said that she was requesting only public information, not confidential information. The district is trying to charge her to separate confidential records from public records, she said.
Rowland argued that the district could not use its inadequate filing system as a pretext for charging steep fees whenever the public wants access to public records.
The lack of organizing e-mail records makes it difficult to make reasonable requests because "it's impossible to request them with specificity," Rowland said.
She said the law was clear that the district could not charge Gray because she just wants to inspect public records. The law allows government to impose a fee only if copies are requested, Rowland said.
But Hoffman said copies would necessarily have to be made in order to separate the public from the private records. He also said the district is not required by law to sort out its e-mails as a precondition for meeting public records requests.
Rowland, however, noted that a state government manual has recommended that state workers separate their private and public e-mails. "The segregation (of public and private e-mails) needs to take place in real time," she added.
In estimating the cost of fulfilling Gray's request, Hoffman tabulated staff time and the time away from handling their regular responsibilities. Sorting out public from private e-mails would be like looking through a "haystack," Hoffman said.
"Some poor clerk is going to have to do this," he said.
Contact reporter James Haug at jhaug@ reviewjournal.com or 702-799-2922.
