They’re stamping their feet in frustration

I suspect most of us have these little visual memories that we savor over the years and replay in our minds when some event, phrase or visual jars it loose.

Whenever I read about a judge or a court standing up for the people’s rights to access public records, I replay this one moment of high drama and low humor that occurred in the chambers of the Nevada Supreme Court in March 2000.

The Review-Journal had sued the county under the state public records law. Two years earlier, we had asked for records of phone calls county commissioners had made on their taxpayer-provided cellular phones. We lost at the District Court level but appealed to the state’s highest court.

Highly respected First Amendment attorney Don Campbell was arguing on our behalf, while Clark County Deputy District Attorney Mary-Anne Miller was handling the arguments for the county.

Miller contended that providing the phone records would be an invasion of privacy, revealing private cell and home phone numbers of people who talked to commissioners.

But the justices told Miller that their own cell phone records had been found to be public, available to the press and others.

“If this court gives out all telephone numbers, why should the county do differently?” asked then-Chief Justice Bob Rose.

Miller insisted the press could still carry out its watchdog role and uncover government waste without releasing the phone numbers.

“How could the newspaper do that without all the numbers?” Justice Bill Maupin asked.

Miller also argued that the phone records of justices are different from those of county commissioners because the justices do not use the phone for deliberations on policies.

“Let me dissuade you from that idea,” Rose replied.

At some point during this give and take, Miller, standing before the court, her hands clasped tightly behind her back, clearly fighting a losing battle for her client, stamped her foot in frustration.

It wasn’t exactly a Clarence Darrow moment in the annuls of jurisprudence, but it became in my mind a symbol of victory for the public’s right to know, frustrating our government servants’ effort to keep the prying public at bay.

Five months later, the court ruled unanimously in favor of making the records public.

That was the scene that came to mind when District Judge Susan Johnson ruled this past week that the Clark County School District could not dodge the public records law by charging thousands of dollars for access to School Board members’ e-mails on a taxpayer-funded computer system because they would have to spend hours removing possibly confidential material from the files.

The lawsuit was brought by activist Karen Gray, who was represented by attorneys from the American Civil Liberties Union.

When she asked for a year’s worth of trustee e-mails, she was told it would cost $4,280 because it would take 30 hours of technology department staff time at $60 an hour to sift the e-mails from the system and 62 hours of office staff time at $38 an hour to review for confidential content, plus copying costs. (Funny, when teachers take on extra tasks, they are paid $22 an hour.)

Judge Johnson noted that the law does in fact allow public agencies to charge for extraordinary use of personnel or technical resources.

But she then ruled that it is not Ms. Gray’s “burden to bear the expense to determine what public records she seeks may be confidential. Once she makes a request for public records, it is the governmental entity’s burden to produce the record or explain why it is not furnished. In short, if CCSD believes certain e-mails generated by its school trustees contain confidential information, it is the one who should bear the expense of review and redaction, if any, as well as provide Ms. Gray an explanation as to why the public record will not be produced.”

In other words, public bodies cannot use the fact that public and confidential material might be commingled in their files to deny access by excessively charging the public for doing their job.

I can hear the bureaucrats stamping their feet in frustration.

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.

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