RENO - Lawyers for a newspaper trying to get access to some of Nevada Gov. Jim Gibbons' e-mails say the communications on his government computer and cell phone should be considered public information unless he can prove they were private or specifically exempt from public review.
Scott Glogovac, representing a Reno newspaper, asked the Nevada Supreme Court on Monday to order the release of nearly 100 e-mails from 2008 that Carson City District Judge Todd Russell earlier ruled were private in nature and not subject to public records laws.
"We urge the court to rule that if there is an e-mail on a state-issued account, that e-mail is presumptively public and the burden of proof is on the government to establish that it is not public," he said.
Glogovac also challenged Judge Russell's ruling denying the newspaper's request for an itemized list of the e-mail records so it could independently assess whether the correspondence fell under the state's public records law.
"The government is not unilaterally empowered to determine whether an e-mail is public or private ... to say that it is not a public document and that the public - including the Reno Gazette-Journal - has no right to know about it, even its existence," he said during oral arguments before the full court in Carson City.
That in effect would make the government the "unilateral and final gatekeeper as to what is produced to the public," he said.
"It is inappropriate for a government agency to respond to a request for public records with a blanket denial like what happened here," Glogovac said.
He said at a minimum there should be a specific response explaining why each document was denied, including a description of who sent the e-mail, all the recipients, the date of the e-mail, the general subject matter and why the document is not generally accessible.
Deputy Attorney General Jim Spencer disagreed, saying the judge was within his authority to withhold most of the e-mails after reviewing them in private and determining they were not subject to public release.
Glogovac argued that the content of the message isn't enough to determine if the information should be subject to public records laws. He said that seemingly personal e-mails have "public overtures and public connotations" when put into the context of a situation, such as that of a government official who meets with a businessman and then later denying any contact when accused of improper conduct.
Glogovac said the newspaper "doesn't know anything about the content of the e-mails and therefore has no ability to inform the court about its position as to whether the documents should be considered public."
Justice James Hardesty, a former trial lawyer who represented the newspaper in the past, asked Spencer if it was adequate for a government agency to simply answer 'no' when faced with a public records request.
"Does it not even have to say if (the document) is there?" he asked.
Spencer said the agency is required only to say whether such a document is public or not and whether it is protected from public disclosure.
"At the end of the day, it is the judge that makes that decision," he said.
Gibbons is up for re-election in November but already faces a stiff GOP primary challenge from Brian Sandoval, a former U.S. District Judge and state attorney general.
Gibbons earlier apologized and repaid the state for sending hundreds of text messages on his state-owned cell phone to a woman he characterizes as a friend. First lady Dawn Gibbons alleges the governor and the other woman are romantically involved.
Gibbons has tentatively reached a divorce settlement with the first lady but it has yet to be finalized.