Functionaries of Incline Village’s local government repeatedly insisted last week that their sudden scheme to destroy all emails to and from top executives after 30 days had the State of Nevada’s stamp of approval.
The very next day, however, the state’s top authority on the matter explicitly denied their assertions.
“As Administrator I have not approved the Incline Village General Improvement District’s current records retention policy whereby all emails older than 30 days are deleted,” responded Jeffrey Kintop, administrator for the Nevada State Library, Archives and Public Records.
Kintop had been copied on the original email that first revealed IVGID administrators had promulgated a new “retention policy,” allowing them to destroy — or at the very least withhold — all public-record emails.
IVGID Clerk Susan Herron, executive assistant to General Manager Steven Pinkerton as well as his appointed public-records officer, had sent that original email to Tahoe resident Mark E. Smith, explaining why IVGID was denying him virtually all of the email records he’d requested.
Smith — active in the effort to reform North Shore trash administration and thus protect trash-diving Tahoe wildlife — had requested all emails between Pinkerton or his public works director and IVGID contractor Waste Management, as well as all complaints made by area residents to IVGID about the district’s stumbling trash-collection service.
After 58 days, Herron responded with only a handful of the requested records, explaining the wholesale denial by referencing the alleged new 30-day policy.
Smith and others have speculated that the 58 days had largely been devoted — by Herron’s boss Pinkerton and IVGID General Counsel Jason Guinasso — to looking for legal-sounding rationales for keeping Pinkerton’s email communications with Waste Management secret from the public.
However, the email letter of State Public Records Administrator Kintop — sent in response to an inquiry from NPRI’s transparency research director, Robert Fellner — implied that any such rationale fails, since under the Nevada Public Records Act, NRS 239.125, local governments’ minimum periods of records retention must be formally approved by the Administrator.
The same statute also indicates that any such new record-retention policies “must be approved by the governing body” of the local government. However, Tuesday’s discussion of IVGID trustees revealed that Pinkerton and Guinasso had never brought their sudden truncation of email life before that board for approval.
Nevertheless, IVGID Clerk Susan Herron, IVGID General Counsel Jason Guinasso and IVGID Chair Kendra Wong had all, at the August 22 meeting, assured the four remaining board trustees and the attending public that the district was in full compliance with state law.
The threesome, however, never addressed key provisions of the record-retention directives that the State of Nevada sets out for local governments. One such key directive — cited by Records Administrator Kintop in his response to NPRI — is that, “E‐mail is managed by its content, not its format.”
In itself that statement would appear to demolish Herron’s basic argument — which Guinasso repeatedly allowed her to make and which she repeatedly attributed to the Administrator’s office — that all email, regardless of content, are “transitory records,” and thus can legally be destroyed after 30 days.
To the contrary, wrote Public Records Administrator Kintop to NPRI, citing page 9 of the official administrative schedules online here, “E‐mail messages are public records when they are created or received in the transaction of public business. They must be retained as evidence of official policies, actions, decisions, or transactions.”
The retention time period for executive communications, such as Pinkerton’s emails, say the directives, is permanent. For complaints from the public, the retention period is a minimum of three years.
While Clerk Herron and Chair Wong could conceivably have remained ignorant regarding the relevant contents of the record-retention manual Nevada provides local governments, full knowledge and candid reporting to the board of those regulations would seem to be a core, ethical responsibility of IVGID General Counsel Guinasso.
The above link goes to a key page of the 2016 Nevada Local Government Retention Schedule. The complete 455-page document is online here. The entire August 22 IVGID board meeting can be livestreamed from these two links: First part and Second part.
Nevada Journal’s initial story on IVGID’s effort to not comply with state public record law was published August 23. It can be accessed here.
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Steven Miller is managing editor of Nevada Journal and senior vice president at the Nevada Policy Research Institute