Saturday, January 06, 2001
Copyright © Las Vegas Review-Journal

County turns over some cellular phone records

Clark County on Friday turned over some of the cell phone records won by the Las Vegas Review-Journal in a three-year fight that reached the Nevada Supreme Court.

But some records are still missing.

The records were sought for an investigation into the influence of lobbyists over county commissioners. They show telephone numbers called on, and also the numbers of telephones that called, cellular phones provided at taxpayer expense to county commissioners and other county officials.

The Supreme Court ordered the records provided in August, but county officials turned over only some of them, claiming they could no longer find others. On Dec. 8, District Judge Mark Denton ordered the county to produce the rest, even if it had to get them from its cellular service provider, Verizon Wireless.

However, an affidavit from Verizon's custodian of records, accompanying those turned over Friday, said her diligent search failed to locate all the aging records. Formally requested by the Review-Journal in February 1998, they covered calls made in 1996 and 1997.

The Supreme Court decision accepted the Review-Journal's argument that records kept by a public agency in Nevada, unless specifically exempted by law, must be available for inspection and copying. It also ordered the county to reimburse the newspaper for attorney fees, which eventually reached $83,999.87. The county paid Dec. 15.

Meanwhile, in another public records case, a Washoe County district judge has cited the Supreme Court's decision in ruling that a businessman who sued Washoe County for public records is the prevailing party and therefore entitled to attorney fees even though the county eventually released the records before he could obtain a court order.

Gary R. Schmidt, who wanted to build a motel near the Mount Rose Ski Area, was seeking permission from the county Planning Commission to use a septic tank until a sewer line was extended into the area. He sought records from the county Department of Water Resources to prove that other property owners had been routinely allowed similar hookups. Schmidt said the planners' denial of his request, and the County Commission's refusal to reverse that denial, resulted partly from the county's refusal to produce the records he needed. And it also meant he couldn't develop his property as others had.

So he petitioned District Court for a judicial review of the planning decision. That review is still pending.

He also applied for a court order forcing the county to produce the records. The county contested the records request but eventually gave him most of the records he was seeking. It balked, however, at paying the attorney fees he had run up, arguing that since the court had not yet ruled on his request for an order, he was not a prevailing party and therefore was not entitled to attorney fees.

"This court finds that ... the respondent did not get serious about supplying certain documents until after this application was either imminent or actually filed. ... But for the filing of this application, he would have been denied access to public documents," Judge Connie Steinheimer ruled.

Steinheimer noted the case's similarity to the Review-Journal cell phone case, and that the Supreme Court had ordered payment of attorney fees in the latter. "A similar result should be reached in this case," she wrote.

Steinheimer hasn't yet ruled on the amount of attorney fees she will award. But Schmidt's attorney, Gary Pakele, said recently, "The dollar amount is not so important as prevailing party status ... That Supreme Court case set a standard. It means a public agency can't just say 'It's privileged and goodbye' without considering the potential cost."
This story is located at: http://www.reviewjournal.com/lvrj_home/2001/Jan-06-Sat-2001/news/15177246.html

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