Records request upheld

The Nevada Supreme Court has unanimously reversed a decision by a district court judge who ruled that public records on private devices need not be turned over to the public.

The case involved ongoing disputes between Comstock Lode residents and Comstock Mining Inc., plus members of the Lyon County Board of Commissioners.

After a 2013 vote on zoning for development, the Comstock Residents Association filed a public records request for records in public custody and also private phone records and emails by county commissioners. Lyon County supplied the records it held and some public records created on private devices. The CRA filed suit to obtain the rest of the records.

Retired Washoe County Judge Steven Kosach, who sat on the case, ruled that the public records held privately need not be turned over.

Lyon County had argued that because state law requires that public records must be “open at all times during office hours,” this requirement identifies what records are public. Kosach agreed.

But the Supreme Court said, in effect, that when officials create government records on private devices, the public’s interest follows those records onto the devices, so officials may not avoid disclosure simply by switching from public to private equipment. The justices pointed to two previous cases, one involving Clark County Detention Center call records and another dealing with Gov. Jim Gibbons’ emails, to point out that they have previously “compelled the production of public records where they have been in the possession of private parties.”

Lyon County also contended that it does not have custody of the privately created public records, and Kosach supported that argument.

But the justices noted that Nevada Revised Statute 239.005 reads in part that the statutory term “governmental entity” includes “An elected or appointed officer of this State or of a political subdivision of this State.”

Therefore, the justices found, the commissioners who created the public records on their private devices “are government entities … and their custody of the requested records would satisfy the requirement of legal custody” under the law.

Finally, the county argued that the public records on private devices were not official records and were not paid for with public funds. (The devices were not supplied to the commissioners by the county.)

The court did not directly address these issues but said its analysis on the issue of whether the records on private devices also applied to the issues of whether the records are official and whether private property rights interfere with delivery of the records to the public.

The court conceded that public records may be mixed in with private records, but said they can be sorted out at the district court level.

The court vote was 7-0. The ruling can be read at