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Appeal asks Nevada’s high court to rule officials’ emails are public records

CARSON CITY — A group of Lyon County residents is asking the Nevada Supreme Court to overturn a lower court ruling allowing government officials not to disclose their emails regarding a controversial decision to allow mining activity to resume at Silver City.

The issue is whether the Nevada Public Records Act encompasses government information contained on personal electronic devices and within personal email accounts.

Residents of the Comstock Residents Association are seeking emails and other communications between members of the Lyon County Commission and Comstock Mining Inc. over a land use decision in January 2014 that allowed mining to return to the area.

“The Supreme Court’s decision in this case will provide critical guidance to local governments on issues directly affecting Nevada citizens right to access public records,” said attorney Luke Busby in the brief filed with the court on Monday.

Silver City, a few miles east of the capital, is a small historic town near Virginia City and part of Nevada’s famed Comstock Lode. Many residents oppose the new mining activity.

Senior District Judge Steven Kosach ruled earlier this year that such records were not covered by the law on several grounds, including that records on person devices and accounts are not open to public inspection because they are outside the control of the public agency.

He also found that the communications were not official actions, but acknowledged that his ruling “may cause public employees to skirt the provision of the (public records law) by conducting business on their personal devices.”

Barry Smith, director of the Nevada Press Association, said the lower court ruling should be overturned.

“Officials could avoid the open-records law by conducting public business through their private phones and e-mail accounts.” he said. “It’s the electronic version of the old back-room deal.”

In the appeal, Busby notes that then-Commissioner Vida Keller said at the January 2014 commission meeting that she had contacted her colleagues outside of the public meeting regarding the land-use change.

“As it turned out, Commissioner Keller and other members of the Lyon County Commissioners used their personal devices or email accounts to conduct official business regarding CMI’s land use application,” Busby said.” Indeed, the commissioners listed as official contact their personal cell phone numbers and used their personal email addresses on Lyon County’s website.”

Lyon County has not yet responded to the appeal. It will likely take several months before a decision is rendered in the case.

“An otherwise public record does not lose public status simply because it was created, received or stored on a personal device or personal account,” Busby said. “As long as the public entity or individual has sufficient control over the device or account, the (state public records law) compels disclosure.”

Contact Sean Whaley at swhaley@reviewjournal.com or 775-461-3820. Follow @seanw801 on Twitter.

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