Sunday, Feb. 25, 2024 | 2 a.m.
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Government entities should follow the law. If they don’t, they should bear the risk of their unlawful behavior rather than trying to penalize innocent Nevadans who are doing nothing more than exercising their legal rights.
Yet penalizing the public is precisely what the Clark County School District is trying to do by refusing to pay the legal fees incurred by the American Civil Liberties Union while trying to obtain public records that CCSD was legally required to disclose.
The case stems from a disturbing incident outside Durango High School last year in which a CCSD police officer engaged in a violent encounter with a group of unarmed predominantly Black teens. The incident was recorded on police body cameras from multiple vantage points as officers arrived on the scene.
The footage was clearly a public record. After all, the incident involved accusations that a public-school student was assaulted by a public safety officer on a public street. As such, the release of the documents and footage was not optional under Nevada law.
A summary of Nevada public records laws, created by the Nevada Attorney General’s office, states that government records are “by default public record unless specific confidentiality restrictions apply,” and “The burden is upon the (government) agency to explain why the records requested should not be furnished, with specific evidence justifying the withholding of the record. Government interest in withholding must “clearly” outweigh the public interest in disclosure.”
Yet, for nearly a full year after the Durango incident occurred, and despite the clear public interest and repeated requests from news outlets and parents of the student involved and their lawyers, CCSD refused to release the body cam footage, police reports, officer statements and other essential records related to the case.
Of pressing concern is that CCSD claimed it had investigated and would not change training policies. It also said it would take no action against CCSDPD Lt. Jason Elfberg, who tackled one student and detained and threatened others for no obvious reason other than filming him. All the teens were later released at the scene.
During a meeting with the Sun editorial board, former Superintendent Jesus Jara insisted that the bodycam footage fully exonerated the police of any wrongdoing but told us that the footage was being withheld because it showed the faces of minor students. The Sun immediately offered to pay to have the footage edited to digitally obscure the students’ faces and any other identifiable information and attributes. Even though his stated concern was instantly resolved, Jara still declined to release the footage.
The Sun promptly filed a Freedom of Information Act request and reiterated its willingness to pay to digitally obscure the faces of the teens. The district refused to respond and after five months of waiting, the Sun began preparing its own lawsuit to force the disclosure of the footage. As this was happening, the ACLU, which is representing some of the affected students, prevailed in its suit to obtain the footage and released it to the news media.
Upon viewing the bodycam footage, it was immediately clear why the district had put so much effort into keeping the videos away from the public.
Not only did the footage fail to exonerate Elfberg, but it also appears to show a different officer fabricating a false narrative to justify Elfberg’s violent lack of control. Nor does the footage jibe with the police report prepared on the day of the incident, which further casts doubt on CCSD Police claims.
The officers’ conduct was shameful, but equally as disturbing are the district’s obvious attempts to weaponize the financial costs of litigation as a means of violating the basic legal rights of Nevadans to know what our government is doing and hold it accountable.
After successfully forcing the release of bodycam footage, the ACLU asked the court to order CCSD to pay the approximately $50,000 in costs the ACLU incurred while advocating for CCSD to do what it should have done all along. The hearing on this matter is set for March 19.
The district argues in a court brief that it should be able to reject public records requests without any risk of potential penalty, even if a judge later determines that the records should have been released.
In other words, the district wants Nevadans seeking public records to assume a financial burden of legal fees, with no hope of recovering those fees, even if a court rules the district improperly withheld them.
It’s a perverse argument that completely ignores the intent of the Nevada Public Records Act, which the Legislature said “is to further the democratic ideal of an accountable government by ensuring that public records are broadly accessible.”
This is not to say that all government records should be immediately available to the public. Statutory exceptions to the Public Records Act recognize the government may have a legitimate interest in withholding certain records, such as those related to personnel issues, for example. But government officials should only withhold records if they are certain that they have the right to do so.
Moreover, ruling in the ACLU’s favor doesn’t mean that nuisance lawsuits for records that are properly withheld would become commonplace. If people sue for the release of records and a court rules against them, those parties would have to pay their own legal bills.
But if a public body arbitrarily decides to withhold records and a court later determines that the government improperly withheld records that the public had the right to see, the legal fees in the suit should be paid for by the government, as a disincentive against government abuse.
Failing to award legal fees to the ACLU in this case would encourage and incentivize government officials to act improperly and have a chilling effect on any party — including and especially the news media — seeking access to documents that clearly fall within public disclosure laws.
CCSD acted in bad faith to block public scrutiny of documents, records and events despite the very public nature and clear public interest in the interaction and subsequent lack of accountability within
CCSDPD. If the court allows CCSD to get away with this, the district will be less accountable than ever: It’s already proven it will improperly withhold records.
If the court cares one whit for governmental transparency, Nevada courts should establish a clear bias in favor of awarding legal fees to parties who sue the government for records release and win.
