Asserts report to sheriff is exempt from state law
LAS VEGAS — Four months ago, Nevada Journal, citing Nevada’s public-records law, asked to review any Las Vegas Metropolitan Police Department reports dealing with its investigation into the actions of Clark County School District Police chief Filiberto (“Phil”) Arroyo.
The investigation, according to multiple reports, had been requested by CCSD Superintendent Dwight Jones. Then, just two weeks after Sheriff Doug Gillespie met with Jones in a late-December, closed-door meeting, Arroyo — then on paid administrative leave — resigned.
Later that same night, one of those teenagers, drunk, smashed his car into that of UNLV honor student Angela Peterson, and killed her.
According to information provided Nevada Journal and other local media, Metro’s presentation to Jones was verbal and no written report was submitted.
The Las Vegas Review-Journal, however, did report that Gillespie said that police had not turned up “sufficient” evidence of providing alcohol to minors. And even if Metro had turned up sufficient evidence, said the article, the statute of limitations had expired.
Metro’s investigation did not include looking into whether Arroyo had initiated the widely reported cover-up, said the story.
Much of the local media, including Nevada Journal, concluded that Metro’s investigation had gone nowhere and that no written investigative reports existed.
However, that conclusion was not correct, Nevada Journal has since learned.
The nearly four-month-late response from Metro — Nevada law requires public-record requests to be answered within five business days — included a surprising revelation.
It speaks volumes about Metro’s investigation and raises more questions than the letter answers.
“No investigative report(s) were generated for this matter,” wrote Metro spokesperson Bill Cassell.
“LVMPD conducted a preliminary inquiry. The only document generated on the matter [w]as a briefing memo for the Sheriff which is not a public document pursuant to the executive privilege exception to Nevada’s public record law.”
So, just what is a preliminary inquiry?
Nevada Journal asked Cassell this and several other questions last week.
According to Cassell, a preliminary inquiry is an “unofficial evaluation.”
Did Metro investigate the alleged cover-up or just the alcohol issue, the publication asked.
Since this was an “informal investigation,” explained Cassell, there were “no records or data” for him to review in order to respond.
Barry Smith, executive director of the Nevada Press Association, says Metro’s response raises many obvious questions regarding the department’s investigation process.
“How many of them [preliminary inquiries] are there? Who actually does these preliminary inquiries? Is it standard practice that they generate no report?”
When asked if it was typical for Metro to do “informal investigations,” Cassell said he “really wouldn’t know if there was any frequency to something like that.”
He did say a public event such as this one, however, would not necessarily warrant a more in-depth or formal investigation.
Cassell also professed no idea how much staff time or resources were expended on this investigation, but he didn’t believe it was extensive at all.
“It concerns me,” said Smith “that a police department is doing inquiries which are not documented and which are unavailable to the public, because that’s the only way the public can evaluate whether they are doing their job or not.”
So, who initiated Metro’s investigation, or “preliminary inquiry”?
Cassell again came up blank, saying he had no records or data with which to answer that question.
According to the Review-Journal report, Gillespie stated it was at the “school district's request [that] Las Vegas police conducted an investigation into the party and whether district employees provided alcohol to minors.”
Nevada Journal last week asked CCSD Chief Communication Officer Amanda Fulkerson for clarification regarding any CCSD request for investigation as reported by the Review-Journal — as well as whether the district’s request was official or unofficial.
As the matter predated Fulkerson’s employment at CCSD, she requested CCSD PD’s help answering those questions.
Nevada Journal still awaits clarification.
Marc Cook, the Peterson family’s attorney, says he would be stunned if Metro’s investigation was unofficial.
“That makes no sense to me,” said Cook when Nevada Journal told him Metro now claims its investigation was “unofficial.”
“I would be really disappointed if that’s the case,” he said.
According to Cook, the officer conducting Metro’s investigation was a detective in a special investigations unit.
“Is he the guy you use for a preliminary nothing?” Cook asked, rhetorically.
Metro’s claim — that it generated no written investigative reports when conducting an investigation on a matter of acute community interest and importance — suggests an assumption in the department that it is only accountable to itself and not the larger Las Vegas community.
The investigation, after all, was conducted, according to Metro, at the request of the largest employer in the state. And it concerned the welfare, ultimately, of hundreds of thousands of Clark County school children who are subject to a CCSD police department whose last three chiefs left amid controversy.
Sheriff Gillespie’s “briefing memo” may be the one existing report that offers any possibility of clarification on this entire controversy.
Metro, however, is withholding the document from the public, asserting in its response letter to Nevada Journal that the record “is not a public document pursuant to the executive privilege exception to Nevada’s public record law.”
Responding to the letter’s assertion that the memo is not a public document, Smith said, “it is — unless you claim it’s executive privilege.”
What is not apparent, however, is whether the sheriff actually has, in this case, any legally valid privilege.
In its response letters to Nevada Journal, Metro — as it regularly does — failed to obey the statutory provisions of the Nevada Public Records Law.
That law requires that any government entity receiving a public-records request must, no later than the end of the fifth business day after receiving the request, either:
- Allow the requestor to inspect or copy the public record;
- If the entity does not have legal custody of the record, provide the requestor with written notice of that fact and the name and address of the government entity that does have custody;
- If the entity is unable to make the public book or record available by the end of the fifth business day, provide the person with written notice of that fact and a date and time after which the public book or record will be available for inspection;
- Or, if the government entity believes it must deny a public-records request on grounds of confidentiality, it must “provide to the person, in writing:
- “(1) Notice of that fact; and
- “(2) A citation to the specific statute or other legal authority that makes the public book or record, or a part thereof, confidential.”
In Metro’s first response, following Nevada Journal’s initial request, Metro simply sent a form letter saying it would “be reviewing your request and will respond to you within 30 days whether or not there are public documents responsive to your request.”
Nearly 60 days later, Nevada Journal had not received a response from Metro and requested a status update.
Three weeks later — March 30 — after receiving no reply, Nevada Journal notified Cassell that the department was out of compliance with the law, precipitating Metro’s May 1 response to Nevada Journal.
That May 1 response, withholding the briefing memo, did not cite “the specific statute or other legal authority” making the document confidential, as required by NRS 239.0107.
Update (May 22, 2012): On May 21, CCSD responded to Nevada Journal’s inquiries seeking clarification. Citing currently ongoing litigation, the school district, through its chief communications officer, Amanda Fulkerson, declined comment. Nevada Journal had asked who initiated Metro’s investigation, whether Metro was asked to investigate a possible police cover-up and whether or not any request for investigation—if sought by CCSD—was official or unofficial.