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Friday, July 31, 2009 | 9:54 a.m.
Gov. Jim Gibbons
Sun Coverage
CARSON CITY – The state Attorney General’s Office says that Gov. Jim Gibbons personal e-mails on a state computer are not public records.
“Materials that are personal in nature, or that do not concern the public business, are not subject to a public records request,” says James Spencer, chief of staff in the attorney general’s office.
He filed a brief with the Nevada Supreme Court in opposition to the request by the Reno Newspapers Inc., to look at all the e-mails sent by Gibbons on the state computer system from January to June in 2008.
District Judge Todd Russell of Carson City ruled that six of the 104 e-mails in question were public records. The state turned over the six documents to the newspaper which has appealed to the Supreme Court to overturn the Russell decision.
The newspaper and its political reporter Anjeanette Damon also asked for a log showing the identity of all the senders, all recipients, the date and subject of the message and reason for denial of access.
Spencer said in his brief that the “State has no pre-litigation duty to create the index of e-mails requested by RGJ (Reno Gazette Journal.)” He asked the Supreme Court to uphold the ruling of Russell who denied the request for the index.
The attorney said “An e-mail kept on a state computer which is personal and which does not facilitate public access to vital government activities is not a public record,” within the meaning of the law.
He said a state committee on the retention and disposition of official state records voted in 2003 that “Personal messages are not public records and may be deleted immediately after receipt.”
Spencer wrote that “It is the nature and purpose of the document, not the location where it is kept, which determines its status” as a public record
The newspaper, in asking the Supreme Court to overturn the ruling of Judge Russell, said “This coverage is important to the public as it provides a main source of information regarding the activity of government officials and the trust worthiness of those officials and their suitability to maintain public office.
Judge Russell ordered Gibbons to turn over e-mails on re-appointment of members of the Athletic Commission; a directive on Capitol Police; a decision on the open meeting law; a directive to the Nevada Military Blue Ribbon Committee; a note on the Council of Economic Advisors and a message that “constitutes a decision made after deliberation.”
The Supreme Court has not set a hearing date on the case.
I can certainly see a lot of appeals depending on this is handled by the judge. How many requests for information have invaded state employees "personal" emails over the years? What a can of worms this could be!
Anything that I put on a company computer becomes the property of the company. Anything that Gov. Gibbons puts on his state owned computer becomes the property of the State.
The court's ruling is not out of line with rulings of other state supreme courts on this issue.
The rulings come out of the concept of "executive privilege" (that old Nixon era term). Executive privilege exists at the state level, for governors, as well as at the federal level for the President.
For example, many years ago, some activists filed a lawsuit claiming that the "visitor appointment log" for California Governor Deukmejian was public record, and its should be disclosed. The California Supreme Court wrote a long opinion about executive privilege at the state level, surveying the law in many states, and concluded that the visitor logs were covered by executive privilege.
So while the many posts saying "you put it on your employer's computer, it's not private" are very true, that principle doesn't apply to state governors. Sorry, it's just that pesky constitution getting in the way once more.