The overworked Nevada Supreme Court finally gets some relief today. Not from the state’s new intermediate appellate court, which began work last month.
No, this afternoon’s light workload comes courtesy of one of the worst public records decisions in state history. Justices will hear arguments in Las Vegas on Nevada Policy Research Institute v. Clark County School District, a case that has “reversal” written all over it.
At issue is an August 2013 District Court ruling that teacher email addresses are confidential. NPRI had sought the school district’s email directory to alert educators to the short summer window during which they can opt out of membership in their union, the Clark County Education Association. Over the years, NPRI’s campaign has prompted more than 1,000 teachers to withdraw from the CCEA.
Teacher email addresses — indeed, any email address provided by a taxpayer-funded Nevada government — obviously are public records, and obviously aren’t confidential. If teacher email addresses were confidential, they wouldn’t be made available to students and parents. Besides, before the NPRI dispute, dozens of school websites posted teacher email addresses for all to see.
But the school district’s administration wasn’t fond of the reason NPRI wanted teachers’ email addresses. Nevada governments are allowed to reject public records requests, but only if they can provide a legal reason for doing so. Government officials cannot reject records requests because they disagree with how the records might be used, or because the records might embarrass them. Nonetheless, the school district rejected NPRI’s request for the email addresses using a bogus legal reason as a pretext to deny the addresses for ideological reasons — a fact supported by the district’s 2014 decision to block NPRI emails to the thousands of “confidential” teacher addresses the organization nonetheless obtained through other means.
NPRI sued and, unfortunately, had the case heard by poorly rated District Judge Doug Smith, who misapplies the law with such frequency that the Supreme Court has overturned about two dozen of his decisions over the past four-plus years. In this case, Judge Smith dropped his already-low bar for competence by misreading NRS 239B.040, which keeps confidential the contact information of individuals who provide them to a government entity. For example, the email address of someone who registers a child for a youth basketball league. Under Judge Smith’s interpretation, that law also applies to public employees, whose email addresses are provided to them by the taxpaying public.
In his ruling, Judge Smith rejected the “presumption of openness” of government records explicitly expressed in state law and upheld in numerous Supreme Court decisions. He rejected NPRI’s arguments because, like the school district, he didn’t like the reason NPRI wanted the email addresses: to encourage teachers to leave their union. How do we know? He admitted as much in an interview with the Review-Journal’s editorial board last year.
“You have to balance children’s rights against the need for disclosure. You don’t just disclose because you can. That’s why we have appellate courts,” Judge Smith said. “Sometimes you have to make equitable decisions, decisions based on equity, not what the law says.”
You read that right. Judge Smith said he intentionally ignored the law in deciding NPRI’s case.
And the only way the Supreme Court can side with Judge Smith and the school district is to ignore its own rulings. For heaven’s sake, the court has ruled previously that the text of the governor’s email messages are public records.
Why should you care about this dispute? Because, if Judge Smith’s ruling is allowed to stand, governments will have a powerful new tool to keep secret email and telephone records that taxpayers have every right to inspect. And taxpayers request such records all the time. According to the Sunshine in Government Initiative, just 6 percent of public records requests come from media organizations. This case is about your access to your governments.
Enjoy today’s light lifting, justices. Decisions don’t get any easier than this.