Comstock residents made a strong argument to the Nevada Supreme Court on Tuesday for access to public records contained on officials’ private cell phones.
The case dates back more than four years, when the Comstock Residents Association asked for copies of communications between Lyon County officials and Comstock Mining Inc. over a controversial zoning decision. A district judge had ruled that emails on the county commissioners’ private phones were not public records. The Comstock residents, led by Joe McCarthy, appealed to the Supreme Court.
On Tuesday, the residents’ attorney, John Marshall, argued that allowing a public official to hide records simply by using their own devices for official business would gut the state’s open-records law. It was not a matter of technology, he said, comparing the situation to a government official who brings his own typewriter to work, types out a document, then takes the sheet of paper home to place in his own file cabinet.
“Just because they happen to be on a personal device controlled by an individual, it doesn’t change their status as a public record,” Marshall told the court during a half-hour hearing in Carson City.
Lyon County District Attorney Stephen Rye said the residents’ request for records was too broad and overlooked “the practical realities of public records requests in the age of modern communications.”
He argued that Lyon County didn’t have custody or control over the county commissioners’ cell phones or email, because they operate through companies such as Google or AT&T.
“Just because there’s an email exchange does not make it a public record,” he said.
“Doesn’t that provide a way for public officials to subvert the public records act by placing all their records on private devices?” asked Justice James Hardesty, noting that Lyon County had listed private cell numbers and email addresses on its web site as a way for constituents to reach their county commissioners, though the county wasn’t paying for the services.
Justice Ron Parraguirre at one point raised the specter of Hillary Clinton’s emails on private servers, wondering whether this was a similar situation.
Rye said Nevada’s law requires the county to provide access to public records, which would mean the government must sift through the commissioners’ private emails to find ones that have to do with public business. “There’s no easy way to do that,” he said.
But Marshall noted that it was the commissioners’ decision to use their own private accounts, so they should be aware that communications on public business would become a matter of public record. It is easy enough, he said, to adopt a policy under which officials could set up a private account for official business and keep a separate one for their personal communications.
In response to the Comstock residents’ request, Lyon County originally had provided hundreds of documents. But it balked at the communications on private phones and email accounts.
The residents, who live in the historic mining district around Virginia City, Gold Hill and Silver City, say the county commissioners had several conversations with Comstock Mining representatives before reversing a planning commission recommendation and allowing the mining company to begin operations.