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BY CATHY SCOTT
What began as a simple request for two mug shots has turned into a handful of
formal complaints filed against Metro Police.
Todd Bensman, an investigative producer for CBS-11 News, a CBS owned and
operated station in Dallas, recently picked up the phone to call Metro's media
office. On the other end was Sgt. Chris Jones.
Bensman and Jones have differing stories as to how the conversation went. But
one thing is sure: Bensman did not get the perp photos he requested without a
fight. That's because Jones attached a stipulation to handing over the pics:
Provide details as to what CBS's coverage was going to be, plus get the
detective with the law enforcement agency in Dallas to contact Jones to tell him
that releasing police photos would not jeopardize the Dallas investigation.
"It's my job to get him that information," Jones said. "It's not my job to
prevent him from doing that. He's right. It is public record. But let's work
together to get that done."
That's a tall order, Bensman said. After all, the Nevada Open Records Law (NRS
239.010) says nothing about records being open only if certain conditions are
met. (The law actually says public books and records are open to inspection at
all times during office hours, and that copies may be made.)
Bensman has filed a complaint with the Nevada Attorney General's office, asking
for an opinion. He's also filed a complaint with Sheriff Bill Young. And he's
filed a complaint against Jones with Metro's Internal Affairs Bureau.
He's also filed a complaint with the Clark County District Attorney's office.
And he told the Nevada Press Association what went down.
The photos Bensman requested were of Nicole Wilson, aka Rebekah Dean, and Tina
Bennett, aka Tina Lauer.
Three days after Bensman filed his complaints, he received an e-mail from Metro,
along with two photos. The e-mail said, "We have completed our checks with
agencies in your area. Please find attached the mugs that you requested. Future
requests can be expedited by simply advising us of the investigative agency/unit
in your area."
"There's nothing in Nevada's Open Records Law that provides an exception to a
media request for mug shots, for photographic materials that are part of a
completed case," Bensman said. "They have no discretion whatsoever, according to
CBS' lawyers' reading of the law.
"I've never heard of such a thing in my 17 years as a journalist. It was an
egregious violation. If this was going on here in Texas, it wouldn't last long.
We take care of business."
In his complaint, Bensman writes that his request to Jones "was pretty routine:
a couple of old mug shots on adjudicated prostitution cases." He said Jones told
him "releasing the mug shots could jeopardize some investigation that might be
going on somewhere in the world, and that he couldn't release them unless I had
my federal sources in Dallas call him first and assure that the release of the
mug shots wouldn't hurt their case here."
In a later e-mailed response to Bensman's request, Jones wrote, in part, "? we
cannot release mugs indiscriminately when there is a potential to contaminate an
ongoing investigation. Since you refused to provide us with enough information
to ensure this is not the case, I cannot release the mugs."
Jones continued: "I have advised our legal counsel, who agrees that the mugs
will be released only after we have verified there is no open/ongoing
investigation involving another agency. Please provide this information via
e-mail or phone."
Jones said Bensman was rude and hung up on him. In a phone interview, Jones
said: "I think it's very reasonable on our part. I'm fully acknowledging that he
has the right to the record, but there's a caveat: He has to have the agency
contact me and say it's not compromising the case. I think the person who's
being unreasonable here is Todd."
Putting a condition on a request for mug shots? That is not standard procedure,
said Barry Smith, executive director of the Nevada Press Association.
"If it's public information, it's public information," Smith said. "Nothing
prevents an officer from asking what they're going to use them for, but you give
them the photos anyway."
Dr. Roy Peter Clark, senior scholar at the Poynter Institute in St. Petersburg,
Fla., agreed: "So what happens in Vegas, stays in Vegas? Time and time again
government agencies, including agencies that are supposed to enforce the law,
refuse to grant citizens, including the press, access to certain public
information. They make all kinds of excuses for why they're doing it. They use
things like 'ongoing investigation' as an all-purpose security blanket, and they
should be ashamed of themselves, especially since their duty is to enforce the
law."
Clark pointed out that "these aren't the government's documents. They're the
public's documents and those that are hiding them should be held accountable."
Jones mentioned a balancing test for denying requests for public information,
which arose out of the 1990 case of Donrey v. Bradshaw. As a result of that
case, the Supreme Court said the general policy of the state was for open
government, but allowed for a balancing test to determine whether records could
be kept confidential. Since then, when employees of government agencies in
Nevada deny requests for public information, they often cite the balancing test
as the reason. The Attorney General's office reported in 2005 that complaints
about violations of both the open records and open meetings laws had doubled
from the year before.
But do complaints convince government bodies to provide records? In Bensman's
assessment, the only solution is a legal one.
"The remedy is supplied right there in the [Nevada] statute," he said. "You
apply to the local court."
In other words, you have to sue.
Cathy Scott is a local freelance journalist and author.