High court rules against Gibbons in records case

CARSON CITY -- Former Gov. Jim Gibbons must give a description of the contents of each of the 98 email messages he refused to give the Reno Gazette-Journal in 2008.

In a 7-0 decision, the Nevada Supreme Court stopped short of saying that governors' email messages are public records, but ruled that governors must give specific reasons when they refuse to make such messages publicly available.

The justices ruled that the newspaper must be given a log containing a "general factual description" of the messages that Gibbons refused to hand over, with "a specific explanation for nondisclosure" by the former governor.

Barry Smith, the Nevada Press Association executive director, hailed the decision for supporting the state public records law.

"It's a very good ruling because it recognizes the need for a log, or index, of the emails and the reasons they were withheld," Smith said. "Otherwise, the Reno newspaper had no way of arguing their side of the case. I think it could be a very important ruling in future open-records cases."

The decision should have far-reaching consequences because the justices said it applies to any "state entity," not just Gibbons. The justices stipulate that if a state entity rejects a request for records, then it must provide the requesting party "notice and citation to legal authority that justifies nondisclosure."

In Gibbons' case, the former governor or the attorney general's office, which represented him, also must provide a log outlining each email message and why it should not be released.

In their decision, made Thursday, justices ordered District Judge James T. Russell again to review the messages, in line with the court decision, and determine whether to make them public.

From previous hearings, it is known the email messages include those sent by the then-governor to Kathy Karrasch and Leslie Durant, two women with whom Gibbons was accused of having affairs.

Gibbons was the first Nevada governor divorced while in office. His former wife, Dawn, accused him of the affairs in divorce documents. Jim Gibbons denied the allegations and said he was only friends with the women. Karrasch accompanied him on a trip to Washington, D.C., and a Las Vegas TV reporter caught her and the governor on camera on their return.

The Gazette-Journal in 2008 sought copies of email messages that Gibbons sent to 10 individuals, including the women, on a state-issued email account.

In the event Gibbons refused that request, the newspaper asked for a log identifying each email, the sender, the message data and the legal basis for the denial.

Gibbons refused, contending the messages were not public record.

The newspaper responded by requesting a log containing a description of the messages so it could assess whether they should be considered confidential.

Russell examined the emails and released six messages to the newspaper. He determined 24 others were personal, 32 were transitory in nature and 42 contained privileged information.

The newspaper appealed to the Supreme Court. During oral arguments last year, lawyer Scott Glogovac, representing the Reno Gazette-Journal, insisted the newspaper wanted to review only Gibbons' email pertaining to government matters, not those dealing with his personal life.

In the decision written by Chief Justice Nancy Saitta, the court said that Nevada public records law places "an unmistakable emphasis on disclosure," and the burden of proof "is imposed on the state entity to prove that a withheld record is confidential."

Russell should have at least granted the Gazette-Journal a log "containing a general factual description of each of the records withheld and a specific explanation for nondisclosure," according to the decision.

Contact Capital Bureau Chief Ed Vogel at evogel@reviewjournal.com or 775-687-3900.