LAS VEGAS (Legal Newsline) – The Nevada Supreme Court on Oct. 25 affirmed a district court decision ordering release of documents to a newspaper reporter investigating allegations of abuse by a school trustee, but ruled further names of victims to be redacted.
Justice Mark Gibbons wrote in the court's ruling that the Clark County School District (CCSD) had failed to prove by evidence why its investigative materials were confidential under federal law. The court also disagreed with an assertion by the school district that documents were subject to “deliberative process privilege,” designed to protect the decision-making process of government agencies.
“The agency bears the burden of establishing, with particularity, 'the character of the deliberative process involved and the role played by the documents in the course of that process,'” Gibbons wrote.
The opinion said to allow the CCSD to invoke a deliberate process privilege would shield it from the Review Journal’s inquiry into how the investigation had been conducted.
The court further contended because Kevin Child was an elected official accountable to voters and because the school district had failed to demonstrate why nondisclosure, rather than redaction, was the better solution, the district’s argument was unpersuasive.
The Supreme Court did not find the 8th Judicial District Court in Clark County in error for releasing the documents in the case. However, it reversed the District Court's redaction order asking it to reconsider and expand if need be the list of victims of sexual harassment, students and support staff, teachers or witnesses who may face backlash for coming forward or being part of the investigation.
According to the background portion of the ruling, officials of the CCSD met with Child, a trustee of the district, in March of 2016 after allegations arose about Child's inappropriate behavior, including sexual harassment. The allegations included speaking to students about suicide and other inappropriate acts, making suggestive sexual comments and gestures toward employees, and engaging in disruptive, threatening and inappropriate behavior at public events.
An investigation conducted by the Office of Diversity and Affirmative Action (ODAA) stated that Child’s behavior could be considered a hostile work environment under Title VII and recommended limiting the trustee’s access to school district property and employees.
On Dec. 5, 2016, the district implemented strict guidelines for future visits by Child and distributed them to CCSD officials by email.
The same day, a reporter for the Las Vegas Review Journal newspaper requested documents related to the case and the CCSD responded it was processing the request, but then said it could not provide the information within five days as required by the Nevada Public Records Act.
Officials of the CCSD said they hoped to provide the records later in December of 2016, then changed the date to January 2017.
The CCSD provided some records to the Review Journal in February 2017 and the newspaper began running stories about Child. The newspaper then made an expanded request for more documents based on what its reporter had learned from the first batch.
On Feb. 14, 2017, the 8th Judicial District Court in Clark County, Nevada held a hearing on a writ petition on the scope of redactions of the names protecting the privacy of alleged victims and people who were interviewed in the case. The counsel for the newspaper said the CCSD had gone "too far" in redacting the names of administrators, principals and supervisors, the ruling states.
The District Court granted the Review Journal’s writ and the CCSD provided more documents in the case to the Review Journal.
However, in May 2017 during an amended request hearing, officials of the school district disputed a request for all the documents leading to the ODAA recommendation, arguing that it had already complied with disclosure. The District Court noted the importance of protecting the privacy of people involved in the investigation but ordered the CCSD to provide it with a full log of all documents and an in-camera view of all withheld records.
On July 17, 2017, after reviewing the added documents, the District Court granted a writ of mandamus ordering the release of the withheld records. Officials of the CCSD appealed the decision to the Nevada Supreme Court, arguing that the documents were confidential under federal law.
The Supreme Court remanded back to the District Court for further proceedings.