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PMAN
MARK E. FERRARIO, ESQ. (NV Bar #1625)
MOOREA L. KATZ, ESQ. (NV Bar #12007)
GREENBERG TRAURIG, LLP
3773 Howard Hughes Parkway, Suite 400 North
Las Vegas, Nevada 89169
Telephone: (702) 792-3773
Facsimile: (702) 792-9002
E-mail: ferrariom@gtlaw.com
katzmo@gtlaw.com
Counsel for Petitioner

DISTRICT COURT

CLARK COUNTY, NEVADA

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SUNRUN INC., a Delaware Corporation,

3773 Howard Hughes Parkway

Suite 400 North
Las Vegas, Nevada 89169
Telephone: (702) 792-3773
Facsimile: (702) 792-9002

GREENBERG TRAURIG, LLP

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Case No.:

Petitioner,

Dept. No.:

v.
STATE OF NEVADA, ex rel. Office of the
Hon. Brian Sandoval, Governor of the State of
Nevada,

PETITION FOR WRIT OF MANDAMUS

Respondent.

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COMES NOW, Petitioner Sunrun Inc., by and through its counsel, the law firm GREENBERG
TRAURIG, LLP, and hereby brings its Petition for Writ of Mandamus (Petition), and alleges as
follows:
THE PARTIES

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1.

Petitioner Sunrun Inc. (Sunrun) is a Delaware Corporation licensed to do business

in Nevada, and is in the business of providing solar energy solutions with a vision of creating a
planet run by the sun.
2.

Respondent State of Nevada is named herein on relation of the Office of the

Honorable Brian Sandoval, Governor of the State of Nevada (Office of the Governor), the actions
of which office are the basis for this suit.
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JURISDICTION

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3.

This Court has jurisdiction to issue writs of mandamus. Nev. Const., Art. 6, 6;

NRS 34.160.
4.

Venue properly lies in this Court because this action concerns public records located

in Clark County, Nevada and Washoe County, Nevada, as the Governor maintains offices in both

counties. NRS 239.011.

BACKGROUND

3773 Howard Hughes Parkway

Suite 400 North
Las Vegas, Nevada 89169
Telephone: (702) 792-3773
Facsimile: (702) 792-9002

GREENBERG TRAURIG, LLP

5.

On or about August 25, 2015, Sunrun made a request under Nevadas Public Records

Act, NRS 239.001, et seq. (NPRA), to the Office of the Governor. The request was for [a]ll

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emails, texts or other written communications received or sent from any of Governor Sandovals

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accounts (personal, state, or otherwise), to or from Governor Sandoval, or received or sent by any of

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his immediate staff (including specifically Michon Martin) from their accounts, and to or from any

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of the following individuals: (1) Pete Ernault (2) Greg Ferraro (3) Lorne Malkiewich (4) Tony

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Sanchez for the period February 1, 2015 through July 27, 2015.

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6.

The Office of the Governor provided several releases of emails responsive to

Sunruns August 25, 2015 NPRA request in September and October 2015.
7.

On November 18, 2015, counsel for Sunrun was informed by Joe Reynolds of the

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Office of the Governor that all emails responsive to Sunruns August 25, 2015 NPRA request had

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been produced. Mr. Reynolds further informed Sunruns counsel that any text messages responsive

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to Sunruns request, to the extent they exist, would have been exchanged on the personal cellular

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devices of the Governor and his staff. For this reason, the Office of the Governor asserted that the

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text messages would fall outside the ambit of the NPRA and Sunrun would not be provided access

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to the same.

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8.

On December 2, 2015 Sunrun sent a final demand to the Office of the Governor

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requesting text and SMS messages received or sent from any of Governor Sandovals accounts

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(personal, state or otherwise) to or from Governor Sandoval, or received or sent by any of his

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immediate staff (including specifically Michon Martin) from their accounts, and to or from any of

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the following individuals: (1) Pete Ernault (2) Greg Ferraro (3) Lorne Malkiewich (4) Tony
SFO 596291880v1 158478.010300

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Sanchez. The relevant time period as previously stated and acknowledged, February 1, 2015

through July 27, 2015. Sunrun provided the Office of the Governor with authorities supporting

Sunruns position that the requested text messages are within the scope of the NPRA because the

messages pertain to the functions or decisions of the Governors public office.

9.

To this date, the Office of the Governor has not altered its position on the text

messages or provided written notice of legal authorities supporting the confidentiality of the

messages.
LEGAL AUTHORITY

3773 Howard Hughes Parkway

Suite 400 North
Las Vegas, Nevada 89169
Telephone: (702) 792-3773
Facsimile: (702) 792-9002

GREENBERG TRAURIG, LLP

10.

The Nevada Public Records Act states, in pertinent part, that unless otherwise

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declared by law to be confidential, all public books and public records of a governmental entity

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must be open at all times during office hours to inspection by any person, and may be fully copied

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or an abstract or memorandum may be prepared from those public books and public records. NRS

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239.010(1).

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The Nevada Public Records Manual (Records Manual), issued by Nevada State

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Library, Archives & Public Records, contains guidelines for agencies to use in determining which

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documents are subject to public access under NRS Chapter 239. The Records Manual states that

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[m]any factors contribute to the determination of public records. If the answer to any of the

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following questions is yes, it is a public record. Two of the questions in the Records Manual that

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are dispositive to the determination of public record are Was the record used to conduct or

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facilitate agency business? and Does the record document official business action, such as: what

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happened, what was decided, what advice was given, who was involved, when it happened, and/or

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the order of events and decisions? Nevada State Library, Archives & Public Records, Nevada

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Public Records Act: A Manual for State Agencies, Bulletin No. 3 (2014), at 5.

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12.

The Records Manual states that [u]sing personal funds to purchase work items, such

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as an appointment book or journal that is used to document work activities, does not make the item

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personal. Manual at 7.

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13.

The purpose of the Nevada Public Records Act is to ensure the accountability of the

government to members of the public by facilitating public access to vital information about
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government activities. DR Partners v. Board of County Commissioners of Clark County, 116 Nev.

616, 6 P.3d 465 (2000).

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request for inspection or copying of a public book or record open to inspection and copying is

denied, the requester may apply to the district court in the county in which the book or record is

located for an order: (a) Permitting the requester to inspect or copy the book or record; or (b)

Requiring the person who has legal custody or control of the public book or record to provide a

copy to the requester.

3773 Howard Hughes Parkway

Suite 400 North
Las Vegas, Nevada 89169
Telephone: (702) 792-3773
Facsimile: (702) 792-9002

GREENBERG TRAURIG, LLP

In order to enforce the Nevada Public Records Act, NRS 239.011 states that: If a

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If a public agency contends that any of its records are not publicly accessible, it bears

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the burden of establishing the non-accessible nature of each record in question. DR Partners v.

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Board of County Commissioners of Clark County, 116 Nev. 616, 6 P.3d 465 (2000); NRS 239.0113.

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16.

Pursuant to NRS 239.0107(1), a government entity that receives a records request

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must, within five days of receiving the request, either (1) allow inspection of the record at issue; (2)

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provide a date and time when the record will be available for inspection; (3) provide written notice

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that the agency does not have legal custody or control of the record at issue and provide the name

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and address of the governmental entity that has custody or control of the record, if known; or (4)

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provide written notice that record requested is confidential and include a citation to the legal

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authority providing that the record is confidential.

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17.

A writ of mandamus is the appropriate procedural remedy to compel compliance

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with the Nevada Public Records Act. DR Partners v. Board of County Commissioners of Clark

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County, 116 Nev. 616, 6 P.3d 465 (2000).

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CLAIM FOR RELIEF

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18.

Petitioner re-alleges and incorporates by reference the allegations contained in

paragraphs 1-17.
19.

By refusing to allow Sunrun access to the text messages requested in Sunruns

August 25, 2015 request, Respondent is in violation of the NPRA.

///
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20.

Although Respondent has taken the position that text messages sent to or from the

Governor and his staff on personal cellular devices are not subject to the NPRA, Respondents

position ignores that Sunruns request seeks records that relate to the functions or decisions of the

Governors public office. Accordingly, the records are subject to disclosure under the NPRA even

if the messages are contained on devices personally owned by the Governor and his staff.

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A writ of mandamus is necessary to compel Respondents compliance with the

NPRA.
PRAYER FOR RELIEF

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WHEREFORE, Petitioner prays for the following:

1.

3773 Howard Hughes Parkway

Suite 400 North
Las Vegas, Nevada 89169
Telephone: (702) 792-3773
Facsimile: (702) 792-9002

GREENBERG TRAURIG, LLP

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messages encompassed in Sunruns August 25, 2015 records request.

2.

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Issue a Writ of Mandamus compelling Respondent to provide Sunrun access to the text

That the Respondent be ordered to pay the reasonable attorneys fees and costs Sunrun
has and will incur in this action; and

3.

That Sunrun recover such other and further relief as the Court may deem just and
proper.

DATED this 8th day of December, 2015.

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GREENBERG TRAURIG, LLP

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/s/ Moorea L. Katz
MARK E. FERRARIO (NV Bar No. 1625)
MOOREA L. KATZ (NV Bar No. 12007)
3773 Howard Hughes Parkway, Suite 400 North
Las Vegas, Nevada 89169
Counsel for Petitioner

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IAFD
MARK E. FERRARIO, ESQ. (NV Bar #1625)
MOOREA L. KATZ, ESQ. (NV Bar #12007)
GREENBERG TRAURIG, LLP
3773 Howard Hughes Parkway, Suite 400 North
Las Vegas, Nevada 89169
Telephone: (702) 792-3773
Facsimile: (702) 792-9002
E-mail: ferrariom@gtlaw.com
katzmo@gtlaw.com
Counsel for Petitioner

DISTRICT COURT

CLARK COUNTY, NEVADA

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SUNRUN INC., a Delaware Corporation,

3773 Howard Hughes Parkway

Suite 400 North
Las Vegas, Nevada 89169
Telephone: (702) 792-3773
Facsimile: (702) 792-9002

GREENBERG TRAURIG, LLP

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Case No.:

Petitioner,

Dept. No.:

v.
STATE OF NEVADA, ex rel. Office of the
Hon. Brian Sandoval, Governor of the State of
Nevada,

INITIAL APPEARANCE
FEE DISCLOSURE

Respondent.

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Pursuant to NRS Chapter 19, as amended by Assembly Bill 65, filing fees are submitted for
parties appearing in the above-entitled action as indicated below:

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Petitioner Sunrun Inc.

$ 270.00

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TOTAL:

$ 270.00

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DATED this 8th day of December, 2015.

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GREENBERG TRAURIG, LLP

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/s/ Moorea L. Katz
MARK E. FERRARIO (NV Bar No. 1625)
MOOREA L. KATZ (NV Bar No. 12007)
3773 Howard Hughes Parkway, Suite 400 North
Las Vegas, Nevada 89169
Counsel for Petitioner

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