Common sense says secret tape of attorney general must be made public

The state of shock that pervaded the Nevada political world after the disclosure of a secret recording of the attorney general has mostly subsided.

Even in the incestuous Nevada political arena, the revelation that the state’s chief gaming enforcer surreptitiously recorded the state’s top law enforcement officer because of suspicions of the latter’s fealty to Sheldon Adelson was a stunner. But now that head-shaking has yielded to a logical follow-up: What exactly is on that tape?

It’s a good question, and one that goes to the heart of the state’s public records law.

Forget the statute for a moment (I’ll get to it). Common sense says if one of the state’s top regulators, A.G. Burnett, surreptitiously records the attorney general, Adam Laxalt, because he suspects foul play – the FBI later found no crime had been committed – the public has a right to hear the tape.

Try arguing with that proposition.

The Nevada Independent has made a public records request of the control board. It was rejected. The state Democratic Party, operating under an imperative that may have more to do with Laxalt’s frontrunner status for governor than its concern for open government, has since made similar requests of the state and feds.

The gaming folks snubbed our records request saying the recording was not made in the course of regular board processes. But, the board went on to say, even if it were a public record by virtue of state law, it would be confidential because of attorney-client privilege.

That, of course, is easily remedied. Burnett and/or Laxalt could agree to waive confidentiality. You would think both would want to quell speculation about what was said. But, thus far, no.

The question is whether the open records law or attorney-client privilege takes higher precedence. Barry Smith, the head of the state press association, thinks it’s the former.

I think any plain reading of Nevada law would show the tape is a public record,” he told me last week. “The statute says everything is open unless it’s specifically made confidential, and I don’t see the tape covered by the exceptions cited by the Gaming Control Board.”

Smith explained that even though the board cited the law and said the tape “doesn’t fall under ‘organization, operation, policy or any other activity” of the agency,’” that can’t be right. Or as he put it, “How can that be?”

Laxalt wanted to talk to Burnett about whether the board should intervene in a lawsuit involving Adelson, his largest donor. Such a request clearly falls under the “policy” or at least “other activity” of the control board.

Indeed, the board has had a longstanding policy of NOT filing briefs to affect private civil disputes involving licensees. That’s common sense, too.

Any way you slice it, the tape is a public record. What about attorney-client privilege?

“I don't think it applies here,” Smith said. “I’m not a lawyer, but I think if I tape-recorded a conversation with my attorney and then turned the tape over to police, I would have a hard time arguing that it was private.”

I’m not a lawyer, either. But it seems obvious: Burnett waived confidentiality when he turned the tape over to a third party, the FBI, and also when he talked to others about it before taking that step.

Think about the argument that is being made: The chairman can talk privately about a tape he made of the attorney general talking about a policy of manifest public interest, but all other Nevadans don’t have a right to know what was said?

I’m not sure whether that contention is more George Orwell or Lewis Carroll.

A few people have imputed partisan motives or have tried to discredit the messenger -- or both. That is S.O.P. in any story involving a high-profile elected official, especially one preparing to run for the state’s highest executive office. And that’s why the Democrats, who know Laxalt is a formidable gubernatorial contender, are all over it.

Whatever your take on any of that, there are serious legal and transparency issues at stake here.

The attorney general serves as counsel to the control board, which made a legal determination that the tape should remain private. Did he have a hand in that decision?

I asked the board’s records custodian, Barbara Bolton, whether she sought outside legal advice because of Laxalt’s involvement, an obvious conflict of interest.

Her response: “No, the written response regarding the public records request was handled in the same manner as any other public records request the Board receives. In this particular instance, because the information sought, on its face, is confidential (pursuant to NRS 463.120 and/or NRS 49.095), which is consistent with Chairman Burnett’s prior public response, no outside legal advice was necessary.”

And no legal advice was sought on whether it was an ipso facto public record? No, Bolton said.

So this wall is made of stone.

Will a lawsuit be necessary to bring it down? Any enterprising attorneys want to volunteer to help a nonprofit push for full transparency in government? Any lawmakers want to actually do their oversight jobs and get to the bottom of things?

It’s not about Burnett or Laxalt, Democrats or Republicans, Sheldon Adelson or me.

It’s about making public what should be public and letting the chips fall where they may.