Now you see it
New devices create new court tests of public records
On Sept. 20, Donald Trump sent out a tweet signaling his support for the latest version of a Republican health care plan, this one called the Graham-Cassidy bill. “I hope Republican Senators will vote for Graham-Cassidy and fulfill their promise to Repeal & Replace ObamaCare. Money direct to States!” he wrote.
But before Trump posted that message, his account blocked Nevadan Laura Packard, a patient with stage four cancer. When she tried to go to his Twitter feed, she read, “@realDonaldTrump blocked you.”
She posted her own tweet: “Omg. The President of the United States just personally blocked me.”
It wasn’t all that surprising that the volatile Trump would take such action. Packard had written a June 27 article for U.S. News & World Report, “Save Obamacare, Save My Life,” that read in part, “The kind of cancer I have, Hodgkin’s Lymphoma, can be cured—even in stage four, which is the worst of the worst. My oncologist says there’s a 90 percent cure rate. Obamacare is going to help save me—if I can keep my health insurance.”
She had also been tweeting at Trump for months, usually on health care. And last week, Packard was ejected from a Libre Forum with U.S. Sen. Dean Heller at Palace Station in Las Vegas. (Heller’s office said it was Palace Station security who removed Packard and nine other participants, but Heller saw it happen and did not intervene.)
And her own tweets were headed “Laura Packard (P.S. Pls ban the nazis already).”
Nevertheless, Trump had no business blocking unclassified public records from U.S. citizens, whatever he may think of their opinions.
“The president is the president of the United States, so they’re considered official statements by the president of the United States,” said former Trump press secretary Sean Spicer on June 6, describing Trump’s tweets. In one lawsuit before the U.S. District Court for the District of Columbia, the U.S. Justice Department took the same position, that Trump’s tweets are official documents.
“We don’t think the president should block any American citizen on social media—period,” said Alex Howard of the Sunlight Foundation of the Packard case. The foundation works for transparency in government.
Nevertheless, many officials at various levels of government follow Trump’s example—doing things with public records until someone, usually a court, tells them they can’t. And new forms of communicating records give them the opportunity to try new ways of putting up obstacles to access.
A few days ago, ProPublica reported that after making public records requests to all governors and 22 federal agencies for their lists of blocked citizens, they found that at least 1,298 accounts are being blocked by various governors and agencies. Nevada’s governor was not mentioned as a problem.
In Missouri, the Kansas City Star last week reported that Gov. Eric Greitens and his personal staffers are using an app—Confide—that erases messages after they’re read.
In Nevada, the blocking government Twitter feeds is not usually a problem. Nevada’s governor, Brian Sandoval, is not usually the kind of figure who attracts much in the way of harsh attacks. His own tweets tend to be on fairly safe subjects. As this is written, his latest tweet reads, “The timeless words of President Franklin D. Roosevelt on the day following the #PearlHarbor attacks have been etched into our nation’s collective memory, when he declared December 7, 1941 as a ’date which will live in infamy.’” As a result, there is seldom reason for blocking. “I wouldn’t know how to do that,” Sandoval’s chief of staff Mike Willden told us.
But the use of email does cause some disputes. There have been some Nevada Supreme Court rulings that have been generally supportive of public access to emails by public officials. Indeed, he thinks the court has more or less settled the issue of new forms of communication and their place in the public records law—but officials keep bringing such issues to the court.
“The court has been good and fairly consistent, but in each of those cases officials find something that lets them try again,” said Nevada Press Association director Barry Smith. He pointed to a current case before the court between Lyon County and the Comstock Residents Association. The residents suspect county officials of being too cozy with Comstock Mining Inc., which has an open pit mine operation in Silver City. Under the state public records law, the residents sought all contacts between county and corporate officials on both public and private devices. The residents’ lawyer, John Marshall, compared using private devices to avoid compliance with disclosure with someone in past years taking a personal typewriter to work and writing official documents on it.
With some government entities, elected officials are supplied with government-issued laptops and cell phones and advised to use those for their official business. That is not the case with the Lyon County Commission, though commissioners are given official email addresses and advised to limit their official emails to those addresses.
Lyon County District Attorney Steve Rye said communications generated by commissioners on their private devices are not in the “custody” of the county, so the county cannot supply them.
During arguments before the Nevada Supreme Court, questions from justices suggested they saw the use of private devices as a way of circumventing the law.
Smith said of the justices, “If they rule the wrong way, it could be a disaster,” but that if they rule in line with their previous cases, public access should be protected. A ruling by a lower state district court said communications between the commissioners and the corporation were not public.
Smith said one item that is fertile ground for officials who keep trying to block access to records is the “balancing test” in Nevada. This is not a legislative enactment. It was created by the Nevada Supreme Court in 1990 in a case called Donrey of Nevada v. Bradshaw. It created several categories of records the courts can keep closed although the law says they are open.
Smith also said the Nevada State Library and Archives has done a good job of keeping state records policies up to date on what is and is not a record.
“They’ve spent a good deal of time on that issue and topic, and I have talked to them on it a number of times, on court records more than anything else,” he said. “I’ve quibbled with them on a few things, but they are pretty good at it.”