After a video posted to social media last month showed a Clark County school police officer throwing a student to the ground, the Las Vegas Review-Journal requested a copy of the incident report, as well as any prior complaints that had been made against the involved officer.
In order to glean more information about a crime or confrontations with police, reporters routinely request police reports, a right that is guaranteed to them and members of the public under the Nevada Public Records Act.
But the Clark County School District has declined to produce those records, citing its own ongoing investigation as a reason for the denial.
The Review-Journal’s “What Are They Hiding?” initiative, which debuted last month, seeks to hold government agencies accountable by highlighting instances where members of the media and public are denied records in violation of the law.
What did we request?
On Feb. 9, students were gathered outside of Durango High School in the southwest valley, following what school police said was an investigation into a report of a firearm near the school.
Video posted to social media showed a school police officer grabbing a Black student who appeared to be recording video of another student being arrested. The officer grabs the student and pulls him onto the ground next to a police vehicle, putting a knee on his back.
The video sparked outcry from the community, including several civil rights groups like the NAACP, National Action Network and the ACLU of Nevada, who said it is representing the students involved. Superintendent Jesus Jara also issued a statement saying he was directing school police to review its use-of-force policy.
The Review-Journal requested a copy of the incident report, body camera footage and any past complaints made against the involved officer, Lt. Jason Elfberg.
But on March 9, nearly three weeks after making the initial request for the report, the district responded by saying the information was confidential and “not required to be produced under the public records law.”
The district argued that the release of the records would impede and jeopardize their ongoing employment investigation. “The District’s interest in nondisclosure clearly outweighs the public’s interest in access,” they wrote.
In a separate email responding to the request for complaints against Elfberg, the district cited the same reasoning, only releasing Elfberg’s date of hire.
As part of its refusal, the district cited Donrey of Nevada v. Bradshaw, a Nevada Supreme Court decision that has been cited by public agencies — like the Metropolitan Police Department — to withhold records if those agencies decide it is in the best interest of the public.
However, the specific balancing test in Donrey was determined by the Legislature to be too accommodating to government secrecy, and that test was repudiated, according to Review-Journal Chief Legal Officer Benjamin Zensen Lipman.
The new test presumes records are open and puts the burden on the district to establish which portions of the records can be kept hidden.
“Under the law, the district has the burden of establishing the portions of the records are confidential, and they simply have not met their burden,” Lipman said. “In addition, even if some information could be kept hidden from the public, the remainder of each record is required to be produced.”
The district did not respond to a request for comment.