A clandestine recording of the attorney general made by the Gaming Control Board chairman and turned over to the FBI is not a public record, the agency said Friday.

The response, though, is the first public acknowledgement by the control board that Chairman A.G. Burnett made the recording last year and then turned it over to the FBI, which found no crime had occurred. The Nevada Independent disclosed the events last week.

But Barbara Bolton, the control board’s custodian of records, rejected The Independent’s request to obtain “copies of a tape recording of the attorney general made last year by Chairman Burnett.”

Bolton said the recording is not a public record under Nevada law for two reasons:

---- “Given the facts and circumstances surrounding the requested material, it is not a public record as contemplated by Nevada’s Public Records Act, as it was not made by the Board ‘as evidence of the organization, operation, policy or other activity of the agency.’”

Bolton cited the part of the statute that defines a public record, which nevertheless contains relatively broad language:

(a) Papers, unpublished books, maps and photographs;

  (b) Information stored on magnetic tape or computer, laser or optical disc;

  (c) Materials that are capable of being read by a machine, including, without limitation, microforms and audio and visual materials; and

  (d) Materials that are made or received by a state agency and preserved by that agency or its successor as evidence of the organization, operation, policy or any other activity of that agency or because of the information contained in the material.

---- “Even if the requested material was a public record, it is declared confidential and privileged by law and, therefore, exempt from disclosure.” Bolton cited three laws. The statutes include various exceptions to the public records law, one that allows the board to keep certain information confidential and the general attorney-client privilege law.

“The Nevada Gaming Control Board is entrusted with maintaining the confidential nature of the Board’s work product, investigative material, and privileged information and, therefore, is unable to comply with the request,” Bolton concluded.

Sources confirmed that Burnett made the recording after becoming suspicious that Laxalt wanted to talk to him about Las Vegas Sands Chairman Sheldon Adelson’s request for the control board to make an unprecedented intervention on behalf of a licensee in a private legal dispute. Burnett was concerned enough afterward that he gave the recording to the FBI. Laxalt has portrayed the meeting as part of the ordinary course of business for his office.

Because three different public agencies were involved -- the attorney general’s office, the control board and the FBI -- The Nevada Independent argued this was a public record. The Independent is considering its options going forward.

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Here is the full email from the Gaming Control Board:

We have received your Public Records Request dated, February 16, 2017. It is our understanding that you are requesting the opportunity to inspect or obtain copies of a tape recording of the attorney general made last year by Chairman Burnett.

Having thoroughly reviewed and analyzed your request, the Nevada Gaming Control Board has made a good faith determination it is unable to provide you with the requested material for the following reasons:

(1)    Given the facts and circumstances surrounding the requested material, it is not a public record as contemplated by Nevada’s Public Records Act, as it was not made by the Board “as evidence of the organization, operation, policy or other activity of the agency.”  See NRS 239.005(6); see generally NRS 239.

(2)    Even if the requested material was a public record, it is declared confidential and privileged by law and, therefore, exempt from disclosure.  See NRS 239.010; NRS 463.120(4)(e); and NRS 49.095.  The Nevada Gaming Control Board is entrusted with maintaining the confidential nature of the Board’s work product, investigative material, and privileged information and, therefore, is unable to comply with the request.