OPINION: Always an excuse for secrecy

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By David Giuliani

Certainly I’m not the only one who gets frustrated with attorneys who insist on government secrecy at all costs.

Last month, we ran a couple of stories on Isaac Apodaca, the deputy administrator at the state hospital.

Employees at the state hospital were telling me that Apodaca was placed on administrative leave. But no one at the state Health Department, the agency that oversees the hospital, would confirm that was the case.

One of the department’s lawyers, Gregory Lauer, told me that whether Apodaca was on administrative leave was a personnel matter and therefore, the department would be keeping such information a secret. (OK, he used the word “confidential,” which is much nicer sounding than “secret.”)

As such, we issued a formal public records request for the same information, and a few days later, Lauer backed down. We got documents indicating that Apodaca was, indeed, on administrative leave.

Of course, the public has a right to know if it’s paying someone not to work. Usually, a public employee is put on administrative leave when his supervisors are trying to investigate a matter.

Why are we so interested in Apodaca? He is the deputy hospital administrator, and he is the only person with that title, so that makes him something of a public figure. I’ve been told that he doesn’t take over the hospital when administrator Troy Jones is away, so he apparently isn’t considered second in command. But just by his title, it sure seems Apodaca is one of the hospital’s top dogs.

So why is Apodaca on administrative leave? Did he violate the state’s computer use policy? Well, I thought I’d check. I submitted a request for information on the browsing history of Apodaca’s computer and e-mail exchanges between Apodaca and a couple of his co-workers who were also apparently put on leave because of the same investigation.

Lauer is not the kind of guy to give up public records without a fight. He wrote that the browsing history was not “used, created, received, maintained or held” on behalf of the department. But he misquoted the law — whether intentionally or unintentionally. He skipped over the word “by,” which is after the word “held.” Information on a department computer is held by the department. Maybe it’s not on behalf of the department, especially if people are violating the computer use policy. But it certainly is in the agency’s custody.

According to Lauer’s opinion, “cookies are pieces of third-party, proprietary software stored on the user’s computer to improve their interaction with specific websites. Browsing history is similar in that it is a record of where the user’s computer has been.”

It’s as if Apodaca’s computer exists in a separate universe, entirely unrelated to the functioning of the department.

Lauer said the requested e-mails consisted of two types: personal and e-mails relevant to Apodaca’s disciplinary matter.

“Mr. Apodaca’s personal e-mails are not subject to release because they do not relate to public business,” Lauer wrote in his letter.

Wait a minute. Is Lauer confirming to me that employees are allowed to use their government e-mail accounts for personal uses? I guess he is.

Now, I acknowledge that I use my work account for personal e-mails at times — an admission that I hope doesn’t get me in trouble with the boss. But I know full well the Optic’s top dog has every right to view every one of my e-mails.

If you take Lauer’s argument to the logical extreme, the public isn’t allowed to see any personal e-mails whatsoever. What if an employee is using his e-mail account to promote the Ku Klux Klan? And what if an annoying reporter like me requested to see those e-mails?

In Lauer’s world, the public would have no right to view such an embarrassment. It would be none of our business, and the department could safely sweep it under the rug.

Lauer also uses another foolhardy argument to keep the e-mails away from my prying eyes. He said that documents concerning infractions and disciplinary actions are exempt from the state’s public records law. But I wasn’t requesting such documents. I was simply asking for e-mails that presumably have nothing in them about infractions or disciplinary matters. Just because they may be the subject of an investigation gives the state no right to keep them away from the public.

When Apodaca uses his government e-mail account, he acts on behalf of us all. Do we have a right to know what he’s writing? Lauer says no. I say yes.

David Giuliani is managing editor of the Las Vegas Optic. He may be reached at 425-6796 or dgiuliani@lasvegasoptic.com.