A plea for openness from the unwashed masses

One word never fails to stick in my craw, to grate on my sense of fairness and justice: Privilege.

The very sound of the word evokes images of aristocracy, of those who are our betters, born to or granted a higher station in life than we vulgar and coarse plebeians. The word implies advantages by legacy or birthright.

The privileged are those entitled to prerogatives, perquisites and immunities denied the rest of us.

When that word is applied to someone carrying the responsibilities of running our government and spending our tax money on our behalf, it is guillotine-grabbing infuriating.

But there it was. Salted throughout the vein of the attorney general's opinion that the Review-Journal was wrong when we claimed we were denied legitimate access to public information under the state's open meeting law when we asked for figures in the Clark County School Board's budget — information already given to our School Board members days prior.

We were upbraided for daring to try to rise above our lowly station, imploring to be allowed to sit with the royalty at the table instead of scrounging for scraps and dregs after the repast, as the lords retire to their chambers for brandy, cigars and droit de seigneur.

Senior Deputy Attorney General George Taylor wrote that an e-mail sent by schools Superintendent Walt Rulffes to the board members and others "is shielded by executive privilege as it was both predecisional and deliberative."

Though I will argue to my last, rasping peon's breath the citizenry has every right to witness the deliberative process that results in governmental decisions, we never asked for the e-mail. We asked for the budget numbers that were given to board members, so we could inform our readers prior to the meeting whose ox was about to be gored, rather than letting them find out afterward, when their protests would be moot.

The AG's letter quotes extensively from a court case brought by the Review-Journal in which we demanded the cellular phone records of Clark County commissioners under the public records law, not the opening meeting law, by the way. In the opinion in that case, written by Justice Bill Maupin, the county's sweeping claim of executive privilege is discussed and dismissed. We won the case.

Taylor quotes from Maupin, quoting from a federal case involving the Freedom of Information Act, which recognizes "deliberative process" and "executive privilege." But we did not ask for the school records under the FOIA -- we asked under the state law. (Even under FOIA, Maupin noted, "purely factual material which is severable from the opinion or policy advice ... is generally not protected and must be disclosed." This was conspicuously absent in the AG's opining.)

The Nevada open meeting law states material provided to the public body must be provided at the same time to the public, generally three days in advance of a meeting.

In his "investigation," Taylor obtained a copy of the putatively confidential e-mail from Rulffes, as well as an affidavit from Rulffes recounting his conversation with our reporter James Haug. He was given a legal argument from the School Board's attorney as to why the communication was not subject to the open meeting law. He also obtained as affidavit from a board member about her discussions with Haug.

Taylor never talked to Haug about his recollections, nor to me, who filed the complaint, nor to any of our attorneys, who might've offered contrary opinions or suggestions that any arguably privileged information could be redacted. No need to bother with the pike carriers in the trenches, where you might get your pristine, privileged boots muddy by engaging in actual hand-to-hand legal combat.

Here is what Maupin had to say at the end of the oft-cited opinion: "While a deliberative process or 'executive' privilege against certain disclosures exists in certain contexts, such a privilege is not implicated here. Thus, we defer any discussion of the scope of deliberative process for an appropriate case."

Thus, the deliberative process privilege was not settled by that case, which was about the public records law. Again, the law we cited when asking for school budget information was the open meeting law, which states: "Legislature finds and declares that all public bodies exist to aid in the conduct of the people's business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly."

Privilege applies. Not to the bureaucrats, but to the people, who reserve the right unto themselves to judge the deeds of those assigned to govern openly.

Thomas Mitchell is editor of the Review-Journal and writes about the role of the press and access to public information. He may be contacted at 383-0261 or via e-mail at tmitchell@reviewjournal.com. Read his blog at lvrj.com/blogs/mitchell