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April 24, 2014

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Judge rules against think tank in bid for access to teacher emails

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Sam Morris

Clark County District Judge Douglas Smith is shown in court Thursday, May 9, 2013.

Updated Monday, Aug. 19, 2013 | 10:47 a.m.

A Clark County district judge ruled today that schoolteachers’ work email addresses are not considered a matter of public record.

Nevada’s Eighth Judicial District Judge Douglas Smith dismissed Nevada Policy Research Institute’s public records lawsuit against the Clark County School District, ruling that the “requested email database is confidential” and “not a public book or a public record.”

“The court concludes that CCSD’s interests in nondisclosure clearly outweigh the interest in access in this narrow case,” Smith said in his decision.

NPRI sued the School District after it denied several public records requests for the teacher emails. The conservative think tank has been waging an email campaign against the Clark County Education Association, sending email blasts to thousands of teachers encouraging them to drop their union memberships.

Although teacher email addresses are widely published on individual school websites, the School District has refused to release a list of teacher email addresses, stating that it doesn’t want its more than 17,000 teachers to be “inundated with spam.”

“The district is committed to transparency,” School District spokeswoman Kirsten Searer said, pointing to a website that allows the public to examine its budget. “However, district emails are the main form of communication our teachers use with parents and students, and we want to protect teacher email accounts from spam.”

Judge Douglas Smith agreed with the School District’s reasoning to dismiss the case. He argued that NPRI and other groups may abuse the district’s email database by “disseminating commercial and/or propaganda emails or selling the database to Internet spammers and phishers.”

“CCSD has an obvious interest in opening the lines of communication between students, parent and teachers — an interest which could clearly be undermined if any person or corporate entity could request, then sell and/or utilize, the teacher email database for any purpose, whether unlawful, propaganda or commercial,” Smith said. “CCSD has no way to ensure that NPRI will avoid such abuse if the email database is disclosed.”

Smith also claimed that NPRI’s request for teacher email addresses wasn’t a public records request at all. He said the district’s teacher email database is a “nonrecord.”

“NPRI’s request for CCSD’s entire teacher email database does not appear to seek a public record,” Smith said. “The email database is part of CCSD’s communication infrastructure … (NPRI’s) request is one for a communication device or method, not a record.”

Furthermore, Smith argued that teacher email addresses are considered confidential under state law. He cites a statute, however, that pertains to private citizens who provide an email address to a government entity — not government employees who are provided government-issued email addresses for work.

Nevertheless, the School District was happy with the judge’s ruling.

“We appreciate that the judge agrees with the district that email addresses are not public records and that it is important to protect our email system from spammers and hackers,” Searer said.

NPRI plans to appeal the ruling to the state’s highest court.

“This ruling sets a dangerous precedent for those seeking information under the Nevada Public Records Act,” said Joseph Becker, the director of NPRI’s Center for Justice and Constitutional Litigation. “That’s why we will appeal this ruling to the Nevada Supreme Court.”

NPRI spokesman Victor Joecks said he found it “a little bizarre” that the judge would reclassify the think tank’s request for public records to one for a “communications device.”

Joecks also took issue with Smith’s reasoning, stating that he misapplied the confidentiality law for private citizens' emails to government-employed teachers’ emails. He also stated the School District should have adequate email filters to prevent spam and phishing attempts.

"CCSD's and the judge's hypothetical concerns about spam and phishing are overblown," Joecks said. "If having thousands of CCSD email addresses publicly available led to the kinds of spamming and phishing attacks CCSD claims to be worried about, those problems would already be occurring. That's because over 9,000 CCSD teacher emails are already publicly available online from a non-NPRI source."

Joecks also noted that 12 other school districts in Nevada have teacher email addresses available online, and don't seem to have any issues with spam.

Nevada Press Association President Barry Smith, who is not related to Judge Douglas Smith, agreed with NPRI. Barry Smith has testified before the Nevada Legislature several times as an expert on the state’s open meeting and records laws.

“I’m not following the judge’s logic,” said Barry Smith, who helped write Nevada’s public records laws. “This is clearly a matter of public record.”

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