Category Archives: Public Records

The Problem Of Focus: Viewing the Russian Interference Issue

At the risk of redundancy, please remember the findings and suggestions in the Cardin Report:

Putin’s Asymmetrical Assault on Democracy in Russia and Europe: Implications for U.S. National Security,” finds that President Trump’s refusal to publicly acknowledge the threat posed by the Russian government has hampered efforts to mobilize our government, strengthen our institutions, and work with our European allies to counter Putin’s interference in democracies abroad.

Never before in American history has so clear a threat to national security been so clearly ignored by a U.S. president, and without a strong U.S. response, institutions and elections here and throughout Europe will remain vulnerable to the Kremlin’s aggressive and sophisticated malign influence operations.

Notice the three elements incorporated in this introduction.  We haven’t mobilized our federal agencies into preventative action. We haven’t strengthened our political institutions to prevent further incursions from Russia.  Nor have we cooperated fully with European allies to prevent more interference.

The current occupant of the Oval Office and his apologists appear to define Russian meddling only in terms of electoral results, if the Russian interference didn’t cause any change in the voting returns then there was no big problem, and hence no sense of urgency in addressing the Russian bots, trolls, and other efforts.  There has been no cabinet level meeting to date during which the Russian Interference constituted a major agenda item.  Recall AG Jefferson B. Sessions’ statement last October:

“We’re not,” Sessions said, when asked by Sen. Ben Sasse, R-Neb., if the government is taking adequate action to prevent meddling in its elections. “The matter is so complex that for most of us we’re not able to fully grasp the technical dangers that are out there.”

Sessions said he accepts the U.S. intelligence community’s findings that Russia interfered with the 2016 election and may attempt to do so again. He said the Justice Department has been aggressively looking into the stealing of trade secrets in the private sector and noted that the FBI’s computer experts are also highly trained.

“Are we at the level we need to be yet? I don’t think so,” Sessions conceded.”

Sessions made the statement in mid-October 2017, if finger counting is correct that’s 8 months since the onset of the current administration. Nor has the Cyber-security page on the DoJ been updated since that date.  “Are we at the level we need to be yet?”  I don’t think so either.

The Department of Homeland Security also has a cyber-security component.  DHS describes its concerns:

“Cyberspace and its underlying infrastructure are vulnerable to a wide range of risk stemming from both physical and cyber threats and hazards. Sophisticated cyber actors and nation-states exploit vulnerabilities to steal information and money and are developing capabilities to disrupt, destroy, or threaten the delivery of essential services.”

The idea that the Russians might be profoundly interested in disrupting the delivery of essential electoral services doesn’t seem to have moved to the top of the department’s concerns, at least not to the point of making any special reference to those instances of interference.  There is a draft of a DHS publication on cyber-security efforts (pdf) available online for the purpose of public comment, published this month.  At this point let’s review the Cardin Report summation of the problem, and then read a portion of the DHS Draft Report on what might be the same subject.

Cardin Report: “Mr. Putin has thus made it a priority of his regime to attack the democracies of Europe and the United States and undermine the transatlantic alliance upon which Europe’s peace and prosperity have depended upon for over 70 years. He has used the security services, the media, public and private companies, organized criminal groups, and social and religious organizations to spread malicious disinformation, interfere in elections, fuel corruption, threaten energy security, and more.”

 DHS Draft 1-5-18: “Given the networked nature of the risks, real coordination is necessary to fully understand the problem and identify paths to solutions. While the information technology and communications sectors do actively work to understand security risks, sectors often are unable to coordinate well with other sectors. Even though some entities coordinate domestically or regionally, there are few global mechanisms to share information about threats, solutions, and their adoption and efficacy. In many cases, lack of clarity around roles and responsibilities has impeded collective action, resulting in security failures.”

At no point in the draft does one find any specific reference to interference in political institutions and operations.  A generous interpretation might be that political interference is included in the general category of infrastructure.

In short there’s not much in the DHS Draft which would offer any Nevada voter, of any stripe, comfort as to the security of our political institutions, or our election processes.  In fact, a quick reading of the draft leaves the impression that the issue of political cyber-security is left to the private sector, and market forces, whatever that might be.

Therefore, we’re back where we started, with a federal Executive Branch unable or unwilling or un-directed to develop specific guidelines or regulations toward preventing Russian interference in political matters and a market (Google, Facebook, Twitter) adrift and stumbling around what they may perceive as business and public relations pot holes on the road to prosperity.

“Russian trolls sought to steer Facebook users toward events, even protests, around contentious issues like immigration. In its response to Congress, published Thursday, Facebook elaborated that Kremlin-aligned agents created 129 events on 13 of its pages. Roughly 338,300 unique accounts viewed these events, while 25,800 accounts indicated they were interested and about 62,500 said they would attend. “We do not have data about the realization of these events,” Facebook explained.”

“Google, meanwhile, previously informed Congress that it had discovered that Russian agents spent about $4,700 on ads and launched 18 channels on YouTube, posting more than 1,100 videos that had been viewed about 309,000 times.”

“And Twitter told lawmakers at first that it found 2,752 accounts tied to the Russia-aligned Internet Research Agency. Last week, however, the company updated that estimate, noting that Russian trolls had more than 3,000 accounts — while Russian-based bots talking about election-related issues numbered more than 50,000.”  [Recode]

There does seem to be some movement from social media operations, however nothing in the draft appears to directly address any specific assistance to state and local governments trying to secure their election rolls, ballot security, and count integrity.  Not to put too fine a point to it, but the DHS draft reads like it was crafted by the Chamber of Commerce not law enforcement agencies.  A wide and highly generalized focus such as the one presented in the DHS draft doesn’t exactly offer much satisfaction to those voters seeking an answer to the problem: What are we doing about Russian interference?

PS: “The Departments are requesting comment, asking for further insight into the issues and goals raised by the report, as well as the proposed approach, current initiatives, and next steps. The draft will be finalized based on adjudication of received comments before submission to the President. The final report is due to the President on May 11, 2018.” <;

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Filed under Nevada politics, oversight, Politics, Public Records, public safety

From Deep Throat to Deep Root: Republicans Careless With 200 Million Voter Files

Oh for the Olden Times when the Grand Old Party had its individual and collective knickers in a twist over Secretary Clinton’s “carelessness” with State Department e-mails on <clutch pearls here> a private server…  However, now we have to visit the Business and Technology section of the Washington Post to find the following:

“Detailed information on nearly every U.S. voter — including in some cases their ethnicity, religion and views on political issues — was left exposed online for two weeks by a political consultancy which works for the Republican National Committee and other GOP clients.

The data offered a strikingly complete picture of the voting histories and political leanings of the American electorate laid out on an easily downloadable format, said cybersecurity researcher Chris Vickery. He discovered the unprotected files of 198 million voters in a routine scan of the Internet last week and alerted law enforcement officials.” (emphasis added)

Translation:  Data mined information on 198 million Americans was  collected, collated, compiled, and then left for 12 days in an UNPROTECTED STATE for the eyes of any and all — criminal identity thieves, criminal scammers, and anyone who didn’t want to go to the bother of hacking into any server in any location.  For 12 days all this information was out there, like the food on a buffet — those in line just had to recognize what was on offer.

Where are the calls for hearings?  The Outraged cries for an investigation into how this could have happened?  The questions as to how we might be able to guarantee something this horrendous doesn’t happen again.

If a “good guy” could find this data during a “routine scan” what might happen when someone with less admirable intentions conducts a targeted scan of what’s available on American voters?

Let this sink in.

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Filed under Politics, privacy, Public Records, Vote Suppression, Voting

America’s Most Accomplished Looters: The Great Pension Robbery

Pension Fund Robbery The corporate media outlets are ever so fearful that the raw emotions unleashed by the fate of young black men at the hands of the police will lead to vandalism and looting… they are not so attentive to the wholesale looting conservatives have in mind for America’s pension funds.   The retirement savings of millions of Americans — The money scraped together from modest earnings over a life time —  The funds intended to keep elderly Americans out of poverty.

The Financialists’ attack on American pension funds encompasses both the public and private sector, and it is nothing less than A Great Pension Robbery.

The Public Sector  Great Pension Robbery

Those, like the Arnold Foundation, who would like nothing more than to get their financialist mitts on public pension funds must first convince people that it would be “better” for the private sector to handle public employee pension funds, and to do so requires a concerted campaign of mis-information and dis-information about pension funds for public employees which are not associated with Social Security.   This scam incorporates a multi-layered attack.

Layer One: Convince the general public that public sector employees are pigs at the taypayer’s trough.  The evidence for this line of assault is rather blatant.  The media is only too pleased to provide outlier stories of high pensions such as “Retired Doctor Earns Highest Pension in Illinois History,” [Fox Chicago] or “$204,000 per year, Is This Retired Cop’s Pension Too High?” [Atlantic] or “Wall Street Isn’t The Problem, The Benefits Are” [New York Times] and a steady drum beat of propaganda from the conservative think-tank network including the Manhattan Institute, Cato Institute, Heritage Foundation, etc. will eventually lead to headlines like “Half New Jersey Voters Say Pension Are Too High.” [Courier Post]

Layer Two: A coterminous line of attack comes from those who want “transparency,” or say they want “accountability” on the part of public pension funds so that the public will know exactly how much retirees are benefiting from their pensions.  That there may be some very serious breaches of identity and financial information is given far less consideration than the idea that the publication of benefit amounts will result in little gold mines of outlier amounts which can be inserted into articles about “highest pensions,” leaving out the part about average benefits, or the levels of training, education, seniority, and other factors which contributed to the pension.  Nor is it made clear in many articles that the employees themselves have made contributions to the retirement plan.   The impression is left that the taxpayers are footing the entire freight for “outlandish” pension benefits. The impression is false, fallible, but if repeated often enough rather enduring.

Layer Three: Convince the general public that public employee pension obligations are the cause of financial problems in the political subdivisions or governments.  This assault requires that we ignore the gorilla in the corner – that local and state governments are saddled with enormous subsidies and tax breaks for corporations which dwarf the pension short-falls citied in the alarmist publications. [OurFuture]

Cities, counties, and states in this country are subsidizing corporations to the tune of $696 per family. [NYT]  In the state of Nevada that adds up to to nice $33.4 million, or $12 per capita, or more specifically: $16.4 million in sale tax refunds, exemptions, or other sales tax discounts; $10 million in cash grants, loans, or loan guarantees, and $5.54 million in property tax abatements.  State Tax credit, rebate, or reductions over $5 million have gone to Apple Inc., Switch Communications, Amonix, Enel North America Inc, Solargenix Energy LLC, and PowerLight Corporation.  Other reductions have been given to Georgia Pacific, Sherwin-Williams, Western Dairy Specialties, General Motors, PPG Industries, Cardinal Health, Ford, Ocean Spray Cranberries, General Electric, Global Health Management, Ameriprise Financial, Johns Manville, ING Financial Services, Intuit Inc, and  Starbucks Mfg Group.  [NYT]

It’s obvious that the arguments are being framed in terms of why public pension benefits must be cut in order to preserve servicesNOT as public pension benefits must be cut in order to preserve tax credits, abatements, reductions, and rebates for corporations.

Layer Four: Convince the general public that public pensions must be “reformed” into defined contribution plans and that those plans could be more efficiently run by private financial interests.  The predominant theme is that the current plan is “insolvent,” and therefore must be reformed! Not. So. Fast.  From the “If You Can’t Dazzle Them With Facts Baffle Them With Bull Shit” Department, there’s the RJ’s editorial with these three instructive paragraphs:

But the best argument for pension reform is not how Nevada’s fund compares to those of other states. It’s how public employee pension benefits compare to the compensation and retirement options available to the taxpayers who fund the pension system. Which is to say they don’t.

That’s because the defined-benefit pension has all but vanished from the business world. Portable savings plans such as 401(k)s have taken their place, and many companies can no longer afford to provide matching contributions. Workers largely are on their own in saving for retirement, with the insolvent Social Security system as a backstop to poverty.

Yet they’re also on the hook for the retirement of public employees, who can start collecting benefits after as few as 20 years of work. Already, taxpayer-funded pension contributions are squeezing public services such as public safety and education. Those contributions are creeping ever higher to ensure PERS can make good on its generous benefits, which are based on top salaries, not an average of lifetime earnings.

Let us parse:  Having acknowledged that the Nevada system IS, in fact, solvent, the RJ dismisses that and hurries on to the rationalization for the Great Pension Robbery.  Compare the pensions to the “taxpayers who fund the system?”  Wait a minute.   By this standard the public employee would only receive pension benefits equal to or less than the lowest pension benefit available to the general public.  Or, a public employee with a master’s degree in hydrological engineering would be a pig at the trough if he or she were paid benefits greater than a mechanic at Lou’s Garage? On some alien planet this might make sense – just not on this one.

The second paragraph is just as interesting, and we’ll return to it in another context in a moment, but for now we should note that what the editorial is arguing for is that government should adopt not the best practice (defined benefit plan) but the worst (defined contribution plan) and should do so because everyone else is doing it – ignoring the reason WHY it’s being done that way.  Defined contribution plans are good for the shareholders (read: institutional investors) in private corporations because they increase shareholder value – i.e. reduce personnel expenses.  There is no “shareholder value” to be accomplished by slashing or “reforming” public sector employee benefits – there is only “austerity” on steroids, cost cutting so that the subsidies, and tax breaks for the corporations can be maintained.

And, notice once more – the argument is framed as if the pension obligations are squeezing the availability of services, NOT that the pension obligations are making it more difficult to balance a budget wherein revenue is restricted by low tax rates, tax credits, tax rebates, tax reductions, and outright subsidies for corporations.   Those who argue for pension “reform” having no traction on the solvency element appear to be playing the Pig at the Trough Game combined with an unsustainable argument about equity.

The Private Sector Great Pension Robbery

Now that we’ve stuck a toe into the slime of defined contribution plans and 401(k) ‘reforms’ in the business sector, it’s time to take a look at what the financialist robber (barons?) have in mind for those other taxpayers.

Yes, indeed, those 401(k) plans are popular, with the corporations, but that doesn’t mean they are necessarily a good deal for the workers.  Seeking Alpha, a popular financial blog, is a bit pessimistic about these plans:

“But, beginning in the 1980s and accelerating of late, we have gone off into a different direction. Most concerning to this conversation is the death of the pension, and the replacement of pensions with 401ks/IRAs, etc. Why is this concerning? Clearly, when you are forcing people who have no acumen and are hardwired to avoid risk to invest on their own to provide for their old age, that is a recipe for disaster. That would be fine, if the consequences for our society weren’t so devastating.”

All right, the idea of having financial novices in charge of their own pension plans isn’t necessarily a good idea – you can call it ‘Freedom’ if you like, but it boils down to YOYO – you’re on your own.  And, in a world of volatile markets which may or may not be rigged against the little guy, the 401(k) notion is dubious at best.  We might want to take a moment to look at this more closely – why is the 401(k) not the best way to insure the ability of seniors to stay out of poverty in their later years.

Most workers don’t have enough money left over after basic expenses to invest in an individual pension plan, and now we have the numbers to prove it:

“When broken down to the individual level, those numbers add up to nowhere near enough money. According to a recent report issued by the National Institute on Retirement Security, the median amount a family nearing retirement has saved for their post-work lives is $12,000. As for the magical 401(k)? If a household where the earners are between the ages of 55 and 64 does have a retirement account, they barely hit the six-figure mark at $100,000—a far cry from $1 million we’re told we need.”  [Salon]

Anyone who wants to get into the weeds of this argument needs to take the time to read the testimony of John Bogle, founder of the Vanguard group, before the Senate Finance Committee on September 16, 2014. (pdf)  Among Bogle’s suggestions we find, limited participation, and excessive management fees cited as problems for the 401(k) advocates.  This finds support from other voices who note:

“Most middle-class savers end up either undersaving, overtrading, investing in excessively high-fee vehicles or some combination of the three. A small number of highly compensated folks now have lucrative careers offering bad investment products to a middle-class mass market based on their ability to swindle people.” [Slate]

There are a couple of elements in the Great Private Pension Robbery which perhaps need a bit more explication. First, most people have no idea how much they are paying in management fees for their retirements investments. Secondly, most people have no idea how and why that management makes investment decisions on their behalf.

There are two kinds of fees charged, the management fee – usually about 1-2% depending on the size and structure of the plan, and the trading fee, based on the activity of the account.  And most people don’t have a clue how much they are paying and for what. [MJ]  And, we are not speaking of some piddling amount in fees, as the study by Demos discovers:

  • “According to our fee model, a two-earner household, where each partner earns the median income for their gender each year over their working lifetime, will pay an average of $154,794 in 401(k) fees and lost returns.
  • A higher-income dual-earner household, one where each partner earns an income greater than three-quarters of Americans each year can expect to pay an even steeper price: (as much as) $277,969. “

Those fees and the accounts to which they are attached are extremely attractive for the denizens of the Wall Street Casino, and there’s a little secret involved – there are cheaper ways of investing for retirement, but they aren’t likely to be included in the pitch from the investment managers. Why? The explanation requires that the worker know the difference between “active” and “passive” management:

“Most funds are “actively managed” by managers who pick and choose stocks for their funds, and the fees for these services add up to about 0.93 percent on average — again, year after year, every year. Putting your 401(k) money in passive “index” funds, which simply and automatically track the returns of major stock market indexes, can cost as little as 0.14 percent per fund — less than one-fifth the average cost.” [DFIC]

So, how much does an investment advisor have to tell the client?  Not much, and they want to tell you even less.

Now we come to the part where public and private pension plans meet: How much does the management have to disclose to the retirement plan investor?  In the state of Kentucky a public school teacher was summarily informed that he had no right to know the terms of the agreement between the Kentucky Teachers’ Retirement System and the Wall Street wealth management firms handling the actual investments. The management trade group excuses this total lack of transparency saying, “secrecy is necessary and appropriate to protect the financial industry’s commercial interests.” [Moyers]

We might translate “financial industry’s commercial interests,” to something like the financial services industry’s proprietary information including how much they are collecting and for what services rendered.  If system wide information isn’t available then how is the individual investor in a 401(k) plan supposed to find out what is going on?

The stance of financial management gives every appearance of being: Give us your money, and shut up.  We’re the experts here, and please just trust us to do the right thing – except

“One casualty of the House budget talks to avert a government shutdown may be a proposed rule requiring investment advisers to act in the best interests of their clients, according to multiple House Democratic sources.

Labor activists and financial reform experts have heralded the rule as a critical step toward enhancing retirement security. The policy would impose a “fiduciary duty” on financial professionals who oversee retirement accounts, barring them from considering the potential profits of their own firm when choosing investments. Instead, investment managers would have to pick stocks, bonds and other assets based only on what was in the best interest of retirees.” [HuffPo]

Get that?  The financial professional is supposed to exercise a “fiduciary duty” to pick investments on how well the investment is likely to perform and NOT on the fee’s the professional’s firm could rake in.  That simple rule has been drafted, attacked by the lobbyists from the financial sector, and is now a hostage during government funding debates in the House.   Not only are investors in pension plans unaware of the terms and fees attached, they cannot assume that the investments in their plans were made with their best interests in mind.  Just hand over the money – and keep very, very, quiet?

How To Pull Off The Perfect Heist

The elements for the Great American Pension Heist are all in place. On the public side of the ledger – convince the public that pensions and the potential pensioners are the problem – never the Wall Street debacle of 2007-2008 or the tax subsidies gladly handed out to corporations.   Clamor loudly and at length about the need for pension “reform.” Wait for a compliant legislature, city council, or other government entity to hand over the money – and then tell them they have no right to find out the terms of the management operations.  Go quietly and no one will get hurt!

On the private side – Continue to tell workers that they’ll be better off with their “economic freedom” to finance their own retirement plans with “flexibility,” and they can use their money as they want – just make the management fee structure so complicated it takes a degree in Finance to figure it out, and then operate on the happy assumption that the financial professional’s first duty is to his own firm’s bottom line not with no specific obligation to cover the future retiree’s bottom.   Give us your money, pay us the fees, and just trust us!  Go quietly, and no one will get hurt?

Additional information and references:

“Looting the Pension Funds: Wall St. is grabbing money meant for public workers,” Rolling Stone, September 2013.  “The  Plot Against Pensions,” Institute for America’s Future.  “The 401(k) Scam,” Seeking Alpha, September 2014.  “401(k)’s are a sham,” Salon,  August 2013.  Testimony, John Bogle, Vanguard Group, Senate Finance Committee, September 2014. (pdf)  “401(k) Plans are a Rip Off, Mother Jones,  May 2013.  “Hidden 401(k) fees: The Great Retirement Plan Rip Off,”  Daily Finance Investor Center, June 2012.  “The Retirement Savings Drain, Demos, May 2012. “401(k) Fees are Robbing You Blind,” My Daily Finance, April 2013.  “Public Pensions and Hedge funds don’t mix,” Demos, October 2013.

Edit: Sorry for the confusion — “Layer Five” should have been Layer Four! Thanks for the proofreading, and maybe next time I’ll remember the maxim “The Preview Button Is Your Friend!”

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Filed under Economy, public employees, Public Records

>Presidential Records Act: Nevada Delegation Votes to Open Records, Make Library Donor Names Public

>The House of Representatives has taken on a couple of important elements toward cleaning up some of the subterfuge and secrecy of the Bush Administration in H.R. 35 which rescinds the infamous Executive Order No. 13233, November 1, 2001. All three members of the Nevada congressional delegation voted in favor of the bill [roll call 5] The same cannot be said of our neighbors to the south; Arizona Republicans Flake, Franks, and Shadegg voted against the bill that would reverse the Bush Administration’s decision to delay public release of records for years. The provisions of H.R. 35 also state that ONLY the president and former presidents can assert executive privilege over records and NOT former vice presidents, and the descendants of presidents. [AP]

H.R. 36 requires that donors to presidential libraries be made public. Again, all members of the Nevada delegation (Heller, Titus, Berkley) voted in favor of the bill. [roll call 6]

The House passed this legislation last session only to have the measures bottled up in the Senate.

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Filed under Bush Administration, Public Records

>Governor Gibbons vs. The Reading Public


The Reno Gazette Journal and political writer Anjeanette Damon have a point. The Nevada statutes pertaining to public records are useless for all practical purposes if an elected official (oh, say…the Governor?) can unilaterally decide which, if any, e-mails are subject to the provisions. “Scott A. Glogovac, attorney for the Reno Gazette-Journal, said “Public record law in this state clearly does not allow a governmental agency to issue a blanket denial of access in response to a citizen’s request for multiple records in the possession of that agency.” [LV Sun]

Nevada Revised Statutes chapter 239 sets forth how public records are to be maintained and which may be accessed. It is clear from the outset that the Legislative intent favors blanket access over blanket denial: “The purpose of this chapter is to foster democratic principles by providing members of the public with access to inspect and copy public books and records to the extent provided by law. The provisions of this chapter must be construed liberally to carry out this important purpose; and any exemption, exception or balancing of interests which limits or restricts access to public books and records by members of the public must be construed narrowly.” (NRS 239.001) (emphasis added)

Is Governor Gibbons subject to this construction? Yes, according to NRS 239.005 – a “government entity” includes an elected or appointed officer of this state, or of a political subdivision of this state. The Nevada Administrative Code (NAC 239.690) holds that a “state agency” means an office, department, board, commission, committee, agency or any other subdivision of the Executive Branch of the government of the state of Nevada where records are make, received or kept. And the Governors communications clearly fall under the NAC definition of a “record:” …“official state record” means information created or received by a state agency under authority of law, regulation or other legal mandate or in connection with the transaction of public business that is preserved or appropriate for preservation by the agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations or other activities of the state agency, including, without limitation, all papers, unpublished books, maps, photographs, machine readable materials including audio and audiovisual materials, or other documentary materials, regardless of physical form or characteristics.” [NAC] If the Governor is “transacting public business” then his records are subject to inspection – if he is not “transacting public business,” then the question becomes: What is he doing using the facilities of his State office for personal business?

The Governor seems to understand that he cannot simply deny access to public records, since his attorney is arguing that it would be better if a judge sorted through the e-mails, determining which might be categorized as personal; and, “whether privacy, confidentiality or the best interests of the state outweigh the policy in favor of disclosure.” [LV Sun] If extrapolated to its ultimate conclusion, this argument would yield a system in which public access to public records would be subject to a judicial filter; hardly a testimony to the liberal interpretation set forth by the public record statute. Worse still, if the Governor’s argument that his office can determine, and a judge can affirm, that disclosure would “not be in the best interests of the state,” then all public records could be closed, placing the burden of easing the restrictions on the public – in direct contravention of the intent to use the most narrow standards for restriction of access. Some of the Governor’s other arguments are equally specious.

From the Governor’s attorney: “The state Supreme Court has held that Nevada’s broad public records law ensures access to “vital information about governmental activities, Spencer said, adding that materials “that do not concern the public business” aren’t in that category. Spencer also said personal and “transitory” e-mails of “temporary importance” and “very limited administrative value” transmitted via the state’s e-mail system aren’t public records, according to a state policy. The same goes for e-mails that duplicate paper records, under the policy. As for any e-mails between the governor and first lady, Spencer said there’s a “husband and wife” privilege in state law that blocks release of such communications unless both agree to the release. Spencer also said the state Supreme Court has held that records don’t have to be made public if they’re part of a “deliberative process” in government or would “unreasonably interfere with an agency’s governmental function.” [SFC]

The argument that materials that “do not concern the public business” are exempt prompts the question: Who determines which records “concern public business?” Can any member of the executive branch unilaterally declare stacks of documents or copious piles of e-mail “personal” and therefore restricted without review?

Again, who can make a determination that a record is transitory, temporary, or of limited value? The public record act doesn’t actually say what the Governor thinks it says in this regard – the statute (239) describes which records must be retained and archived, not necessarily which can be opened or restricted.

The husband and wife restriction would surely apply if their communication is private, as in face to face, or via a private communications line. However, what if the “transmissions” are made using public facilities and equipment paid for by the taxpayers of Nevada? Further, isn’t the burden of proof on the Governor to show that the communications are part of “a deliberative process,” or would “unreasonably interfere with a governmental function?” He might be able to make this argument, IF members of the public as represented by the Reno Gazette Journal knew which communications were part of the process or functions – a determination they cannot make without at least seeing the logs in the first place.

District Judge Bill Maddox set a hearing date for Thursday, December 4th on this issue. Frankly, the Governor deserves to lose this round.

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Filed under Gibbons, Nevada, Public Records