Newspaper column: Let the public see the work of public servants

Next week is Sunshine Week, March 11-17. The annual observation was created by the American Society of News (formerly Newspaper) Editors to spotlight the importance of public access to government information in a democratic republic, allowing citizens to be the watchdogs over their elected and appointed representatives.

The sunshine label was derived from a quote by Justice Louis Brandeis, “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”

The point is that for the public to be able to perform its democratic role in voting into or out of office the most suitable personages, they must be kept informed as to how well or ill the current office holders and their minions are doing their jobs.

Which brings us to the current tension between the right to know and the right to privacy.

Earlier this year a district court judge ruled in favor of a request from The Associated Press and the Las Vegas Review-Journal to obtain copies of the autopsies of the 58 victims of the Oct. 1 Route 91 country music show shooting. The judge did require that the names of the victims be redacted.

A few weeks later another judge, at the behest of the widow of off-duty police officer Charleston Hartfield who was killed at the concert, ruled that his autopsy report was private and demanded the news outlets return it. How they were to determine which one was his is unclear.

A three-justice panel of the Nevada Supreme Court quickly stepped in and basically ruled that once the cat’s out of the bag it can’t be put back. It left unsettled the question of whether autopsy reports are public records under the law in the first place.

The court opinion, penned by Justice Kris Pickering, relied on a U.S. Supreme Court ruling in a 1989 case involving a Florida newspaper called the Florida Star. The paper published the name of a rape victim, even though Florida law makes it “unlawful to ‘print, publish, or broadcast … in any instrument of mass communication’ the name of the victim of a sexual offense …”

That court ruling said the Star’s intern reporter lawfully copied the information from records made available by the local sheriff’s office and the paper could not be punished because the sheriff’s office failed to follow its own policy of redacting the names of rape victims.

Pickering wrote, “For purposes of our analysis we assume, without deciding, that the Hartfield Parties had a protectable privacy interest in preventing disclosure of Mr. Hartfield’s redacted autopsy report.” The key phrase is “without deciding.”

The question remains: Are records prepared by a public official using public funds to determine a public safety matter covered by the state’s strong public records law that states records are available to the public “unless otherwise declared by law to be confidential …”?

Back in 1982 then-Attorney General Richard Bryan issued a non-binding opinion that they are not, writing, “An autopsy protocol is a public record, but is not open to public inspection upon demand, because disclosure would be contrary to a strong public policy …”

That public policy was described as the expectation that “the secrets of a person’s body are a very private and confidential matter upon which any intrusion in the interest of public health or adjudication is narrowly circumscribed.”

But does that privacy expectation carry over beyond death and supersede the public’s right to observe how well their public servants are serving them?

The closest the state Constitution comes to addressing this question is when it states that victims of crimes are to be “treated with fairness and respect for his or her privacy and dignity” and defines a victim of a crime as including a deceased person’s family members.

All the Nevada high court panel did was say the media obtained the records legally and prior restraint would be unconstitutional. It did not say whether in the future the coroner could refuse to release autopsies.

We believe the courts or lawmakers should make a final determination in favor the public’s right to know and let the sun shine in.

It is analogous to the debate currently underway in Florida over what information should be made public about what law enforcement did prior to and during the tragic high school shooting that killed 17.

The public needs to see how well public officials are doing their jobs … or not.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Nevada Supreme Court

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Newspaper’s court win so narrow as to be really meaningless

Well, that was a victory so narrow as to be almost meaningless.

The banner story in the morning newspapers relates that a district court judge’s ruling barring the paper from further reporting on an autopsy report of one of the victims of the Oct. 1 Route 91 shooting was overturned by a three-justice panel of the state Supreme Court.

Justice Kris Pickering

But the ruling completely skirts the core issue of whether autopsy reports are public records and relies solely on a 1989 case out of Florida that basically stated that once the cat is out of the bag it can’t be put back. In the Florida Star case the court held that a reporter copied and published a publicly available police report about a rape victim, even though Florida law makes it “unlawful to ‘print, publish, or broadcast … in any instrument of mass communication’ the name of the victim of a sexual offense …”

The court said the Star lawfully obtained the information and could not be punished because the sheriff’s office failed to follow its own policy of redacting the names of rape victims.

The Nevada court ruling essentially said this was the case with the autopsy report and did not rule on whether the report was a public record. Justice Kris Pickering wrote, “For purposes of our analysis we assume, without deciding, that the Hartfield Parties had a protectable privacy interest in preventing disclosure of Mr. Hartfield’s redacted autopsy report.” The key phrase is “without deciding.”

The autopsy of off-duty police officer Charleston Hartfield was one of the 58 autopsy reports released to the newspaper and The Associated Press after they sued to obtain the records. The names and personal identifying information were redacted, which according to Pickering the “Review-Journal conceded was appropriate.” His widow sued in an effort to block further publication, citing privacy grounds.

So, the question remains, are records prepared by a public official using public funds to determine a public safety matter covered by the state’s strong public records law that states records are available to the public “unless otherwise declared by law to be confidential …”?

The closest the state Constitution comes to addressing this question is when it states that victims of crimes are to be “treated with fairness and respect for his or her privacy and dignity” and defines a victim of a crime as including a deceased person’s family members.

All the court panel did was say the paper obtained the already heavily redacted records legally. It did not say whether in the future the coroner could refuse to release any information.

The heavy lifting remains to be done.

 

 

 

Does anyone really know what time it is? Does anyone really care?

Pardon us for being sticklers. Occupational hazard.

The lede on a story in today’s newspaper set us off in search of nits to pick:

Several laws adopted by the Nevada Legislature in 2017 sprang into effect just after midnight Sunday as fireworks exploded over the Strip, marking the start of the new year.

Technically, the fireworks started at midnight, which is between Dec. 31 and Jan. 1, but exploded over the Strip on Monday the 1st. But according to the AP Stylebook, or at least the 2011 version I have lying about, midnight “is part of the day that is ending, not the one that is beginning.” So, the laws went into effect after midnight Sunday, but on Monday.

Now as far as the AP Stylebook, the designation of midnight as being a part of the day that is ending instead of the day that is beginning is, shall we say, arbitrary and capricious. If 11.59:59 p.m. is Sunday and 12:00:01 a.m. is Monday, why isn’t 12:00:00 the beginning of Monday and earn the tag of a.m.?

Strictly speaking, midnight ought not be construed as either, but rather is that infinitesimal point in between.

As the  National Institute of Standards and Technology, a division of the U.S. Department of Commerce, points out:

Are noon and midnight referred to as 12 a.m. or 12 p.m.?

This is a tricky question because 12 a.m. and 12 p.m. are ambiguous and should not be used.

To illustrate this, consider that “a.m.” and “p.m.” are abbreviations for “ante meridiem” and “post meridiem,” which mean “before noon” and “after noon,” respectively. Since noon is neither before noon nor after noon, a designation of either a.m. or p.m. is incorrect. Also, midnight is both twelve hours before noon and twelve hours after noon.

Got it?

As the NIST notes, it is generally clear what one is talking about when referring to “midnight tonight” or “midnight last night,” but what is meant by “midnight on Friday, October 20th?” Does that mean the beginning of the day or the end of day?

Just to be clear the cutline on the morning paper’s online pix says the fireworks on the Strip went off on Monday, Jan. 1.

Glad to clear that up for you.

Las Vegas Strip fireworks (R-J pix)

Mind over machine? It just doesn’t matter

Michael Ramirez cartoon

Artificial intelligence beats human intelligence again.

According to an Associated Press report, some college students have come up with a computer plug-in called “Open Mind” that will detect fake or biased news online.

“The plug-in uses existing sentiment analysis technology to analyze any story that might appear in a newsfeed, identifying the major players and any political slant,” the story relates. “It then can suggest to the reader other stories on the same topic that have an alternate viewpoint.”

One of the students noted that, if there is an article that is very pro-Trump, then, “We would then try to give you something more left of center. We can go out and find for you that alternative article.”

Talk about a senseless and futile gesture. People don’t want balanced news accounts. They want their biases to be stroked and bucked up and enhanced by more of the same.

I call it the Amazon Effect.

Computerized marketing works by reinforcing your previous choices by offering more of the same: “Customers Who Bought This Item Also Bought …” Click on a book by conservative radio talk show host Mark Levin and your helpful algorithm suggests books by Thomas Sowell, Newt Gingrich, Glenn Beck, Ann Coulter and Karl Rove. Type in the name of any liberal writer and you get the obverse of the coin.

About a decade ago the speaker at a national convention of newspaper editors was one of the gurus of computer-age marketing, Eric Schmidt, the chairman of the ubiquitous Google. (By the way, Open Mind is an extension for Google’s Chrome browser.)

Schmidt noted that the computer can offer to broaden your exposure as well as narrow it. Obviously, for every synonym there is an antonym. It makes no difference to the machine.

The Google guy noted that, when people were given an option of “show me an opposing view,” two-thirds would never look at it.

He also observed that of the news reporting online at that time, fully 80 percent of stories contained no original content, while of the remaining 20 percent, half came from newspapers. There might be some original reporting now, but the biases are doubtlessly still there or more so.

Has the lack of human intelligence foiled artificial intelligence again?

 

Media object to sweeping Bundy secrecy order

Bundy standoff. (Reuters photo)

Three media organizations have filed an objection to a federal judge’s order to veil in sweeping secrecy documents and evidence in the Bundy case. Intervenor objects

Earlier, U.S. Magistrate Judge Peggy Leen ordered all materials produced by the government in discovery in the case — grand jury transcripts, agency reports, witness statements, memoranda of interviews, documents and objects produced by the government — are to be confidential and anything filed court relating to these are to be automatically filed under seal.

She said this was being done to protect witnesses, victims, law enforcement, prosecutors and other government officials from being intimidated — mostly based on vague 2-year-old Internet postings that suggested certain people might come to harm.

Attorney Maggie McLetchie — who represents the Las Vegas Review-Journal newspaper, The Associated Press and Battle Born Media, which publishes a half dozen weekly newspapers across the state — on Friday filed the 22-page objection, saying the secrecy order is excessive and unnecessary.

The Bundy case grows out of the April 2014 standoff between Bureau of Land Management law enforcement and armed supporters of Bunkerville rancher Cliven Bundy. Bundy had failed to pay grazing fees for 20 years and the BLM was attempting to roundup his cattle. The 19 defendants face felony charges that include conspiracy, obstruction, extortion and assault, which carry penalties of up to 50 years in prison.

The BLM eventually released the cattle rather than risk bloodshed.

McLetchie argues (specific cites omitted):

The Magistrate Judge noted that public access to discovery materials is more limited than to court proceedings. … However, in allowing the materials deemed “Confidential” to be automatically filed under seal, the Court’s Protective Order essentially misapplied the lesser standard for access to criminal discovery to judicial filing. The law of this circuit and the common law “start with a strong presumption in favor of access to court records.” … Given this presumption of public access, the Ninth Circuit “requires a party to make a particularized showing of good cause for each document it seeks to file under seal.”

McLetchie notes that the rambling and ranting social media postings cited by the government as a rationale for secrecy are free speech, protected expression of frustration and not actual threats.

These included: “EVERYONE PLEASE CALL … They need to know that they are doing is NOT right and that we notices [sic] it and we are a shamed [sic] of them!” and “Sounds like to solve the problem a lqnd [sic] owner will, have to take out an AR 10 and put a bullet in -head to save the other land owners to stop this, if I had land. i will now, kniw [sic] who to shoot first….”

Rather than close off everything, the attorney suggests identifying information could be redacted.

McLetchie concludes:

Indeed, the magistrate judge’s protective order subverts longstanding presumptions that (1) court records are presumptively public, and (2) depriving the public of access to public records requires a careful balancing of the private and public interests at stake. Instead, with little in the way of good cause to support a protective order, the magistrate judge has mandated that all confidential documents attached to motions and pleadings must be filed under seal without requiring the filing party to show why sealing is necessary. This runs contrary to the Ninth Circuit and this Court’s law, and should not be the standard for filing documents and supporting discovery in this case. Instead, this Court should follow the guidance of the Ninth Circuit and require parties to establish that submitting discovery documents in a public filing will result in a specific, particularized harm. In addition, the party seeking to file discovery documents under seal should be required to demonstrate that alternatives to sealing such as redacting identifying information would not suffice to address the government and the magistrate judge’s concerns.

She also notes that in a recent Nevada case Magistrate Judge George Foley recently ruled that the party seeking a protective order in a criminal case must bear the burden of showing good cause and a showing of specific harm.

The public has a right to see whether justice is done from now until and through the trial scheduled for next February. Meanwhile, all the defendants are being held without bail.

Editorial: Judge rules Bundy case evidence will be cloaked in secrecy

That was a futile gesture.

A federal judge has rejected efforts by the Las Vegas Review-Journal, Battle Born Media and The Associated Press to be privy to evidence provided to the defense attorneys for the 19 defendants accused in the armed standoff at the Bundy ranch in Bunkerville in April 2014, meaning that most evidence will remain veiled in secrecy until the trial next February.

The judge did state that information already in the public domain — such as Facebook, Twitter and YouTube postings — could not be declared secret. The cat may not be put back in the bag, as one wag argued.

Bundy ranch standoff. (Reuters photo)

U.S. Magistrate Judge Peggy Leen wrote in her order this week, “All materials produced by the government in discovery in this case, including, but not limited to: grand jury transcripts, agency reports, witness statements, memoranda of interviews, and any documents and tangible objects produced by the government shall be treated as confidential documents. Information and documents in the public domain are not confidential documents.” Protective order 7-15

The judge warned that defense attorneys may not even share notes relating to the contents of discovery with anyone not employed to assist the defense, and anything filed in court relating to the discovery must be filed under seal.

Judge Leen based her ruling on the belief that, “The victims and witnesses in this case are vulnerable to cyberbullying, threatening communications, and intimidation from Bundy supporters who have demonstrated their ability to rapidly disseminate images and private information about victims and witnesses and encourage people to contact victims and witnesses. These tactics ‘have the potential to disrupt and prejudice the truth finding function of a trial by influencing potential witnesses or chilling their willingness to testify.’” Order 7-15

She determined this even though almost all of the 22 allegations of intimidation are two years old and nothing substantive has come of any of them.

The defendants face felony charges that include conspiracy, obstruction, extortion and assault, which carry penalties of up to 50 years in prison. The standoff occurred after armed Bureau of Land Management law enforcement agents attempted to roundup Cliven Bundy’s cattle after he had refused for 20 years to pay grazing fees in the Gold Butte area. The BLM said he owed $1 million in fees and penalties.

Armed Bundy supporters outnumbered the BLM agents 4-to-1, the court claims, and the agents eventually released the cattle and left to avoid potential bloodshed.

Attorney Maggie McLetchie, who represents the media in this case, told the Las Vegas newspaper after the recent ruling, “From the media’s perspective, the order still cloaks much of the information about this case in secrecy despite the heightened need for transparency the judge recognized when allowing the media to intervene. It is deeply troubling that so many documents will be automatically hidden from public view.”

The lack of public scrutiny means that any extenuating or mitigating circumstances that the public might shed light on will not come until the time of trial, when it might be too late.

One glaring example of this is the court’s continued referencing to the fact that a couple, Jared and Amanda Miller, who were at the Bundy ranch during the standoff latter ambushed and killed two Las Vegas police officers in a restaurant and “draped a Gadsen (sic) flag over one of the officers, and shouted to patrons that this was the start of ‘a revolution.’”

Never mind that it was a Gadsden flag, the court makes no mention of the fact the Bundy’s say they kicked the Millers off the ranch due to their left-wing radicalism.

In a motion filed in support of opening up discovery to the press and the public, McLetchie argued, “One of the most critical aspects of news reporting is to inform the public of justice being carried out in the courts. In this regard, the press is vital to the health of a democracy. … This right is anchored in the value of keeping ‘a watchful eye on the workings of public agencies,’ and in publishing ‘information concerning the operation of government.’ … ‘In short, justice must not only be done, it must be seen to be done.’”

The attorney for at least one of the defendants plans to appeal the secrecy decision.

A version of this editorial appears this past week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Newspaper column: Federal judge should disarm the Grouseketeers

In order to meet a judicially imposed deadline, in September Interior Secretary Sally Jewell declared that the greater sage grouse — whose habitat stretches across 23 million acres in 11 Western states, including much of Nevada — would not be listed under the Endangered Species Act, but instead imposed a federal land use plan restricting beneficial economic activity in order to protect the bird.

The Fish and Wildlife Service, a division of the Interior, stated in a 341-page announcement that 10 million acres of public land — nearly a third of that in Nevada — would be taken out of consideration for future mining claims, as well as oil and gas drilling near breeding grounds and there would be additional reviews on grazing permits.

Elko and Eureka counties and two mining companies filed suit in federal court in Reno the next day, calling the plan “arbitrary, capricious and unlawful.”

Greater sage grouse (BLM photo)

Since then the state of Nevada, seven more counties, another mining company and a ranch have joined the litigation in an effort to block implementation of the land use restrictions.

Even though federal Judge Miranda Du has refused to issue an order suspending the land use plan, saying the plaintiffs have failed to demonstrate irreparable harm, Attorney General Adam Laxalt’s office has filed a 50-page motion for summary judgment, saying the federal land agencies were so intent on meeting a deadline and imposing a predetermined political agenda instead of making a scientific analysis that they ignored public input, which violates federal law and should void the action.

Though the objections of Gov. Brian Sandoval and the various counties were entirely ignored, the motion says three top Interior Department officials met privately, after the public comment period was closed, with environmental groups to obtain their “buy-in” on the land use plan.

The motion says the three called themselves the Grouseketeers and identifies them as Secretary Jewell’s top greater sage grouse advisors Deputy Assistant Secretary Jim Lyons, Counselor to the Secretary Sarah Greenberger and Principal Deputy Assistant Secretary for Fish and Wildlife and Parks Michael Bean.

Though an Associated Press account suggested the self-anointed Grouseketeers “apparently” based their label on the “Mousketeers” of the 1950s televised “The Mickey Mouse Club,” we doubt they saw their operation as Mickey Mouse, though the plaintiffs might. We suspect they were identifying themselves and their “noble” cause more with the original Alexander Dumas swashbuckling characters who defended the King of France.

“The Grouseketeers facilitated a process that suppressed concerns of their own high-level staff who raised the same issues as Plaintiffs: the need for a Supplemental Environmental Impact Statement (“SEIS”), lack of scientific data to support new restrictions imposed at the insistence of the United States Fish and Wildlife Service (“FWS”), and the failure to compile or review readily available information about mineral potential and grazing management on the lands at issue,” the attorney general’s motion for summary judgment declares.

The motion repeatedly cites Interior Department internal memos that show science was ignored in deference to a pre-determined political agenda.

“The agencies omitted an entire body of science that demonstrates that properly managed grazing can be beneficial to GSG (greater sage grouse) habitat,” the motion notes. Yet the Bureau of Land Management entered into the record an erroneous statement that there are “no science-based studies” demonstrating that increased livestock grazing on public lands would enhance or restore sage grouse habitat, ignoring the fact that the state and Elko and Eureka counties submitted just such published scientific findings.

The motion says one mine alone that is jeopardized by the land use plan could be worth $3 billion — 1.4 million ounces of gold and 21 million ounces of silver.

Sandoval and other governors have repeatedly accused the federal land agencies of ignoring their input and stonewalling their appeals.

Laxalt’s motion says the land use maps used by Interior are woefully out of date and BLM officials knew but ignored it. “Top Nevada BLM officials knew that roughly 26 percent (723,000 acres) of the 2.8 million acre Nevada SFA (sagebrush focal area) was not priority habitat — it included lower priority habitat and 75,100 acres of non-habitat,” the motion says.

Fish and Wildlife says these restrictions are needed to protect sage grouse, though its own Federal Register filing states “that over the last 15 years the rate of extinction of leks and the probability of recolonization of leks has been remarkably stable.”

The judge could put a stop to this blatant fiasco in which politics trumps science, but will she?

A version of this column appears this week many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

 The opening of the latest meeting of the Grouseketeers?