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Nebraska Supreme Court Reviews $44K Fee for Public Records

A reporter requested a keyword search of emails as part of an investigation into nitrates in the state’s drinking water from the Nebraska Department of Environment and Energy. What she got was a $44,103 bill for the state to begin the search.

To one side, a Lincoln, Neb., judge's decision last year in a news nonprofit's fight over a state agency's nearly $45,000 fee for public records about the state's drinking water was a win for the public's right to know.

To the other, it was permission for public records requesters to consume 927 hours of taxpayer-funded employee time for free.

Whichever way the Nebraska Supreme Court rules in the case now on appeal, the decision is likely to reverberate statewide.

At oral arguments Thursday, Nebraska Solicitor General Eric Hamilton told the justices: "The district court's rule forces public bodies from the largest state agencies and courts down to the smallest villages in Nebraska to pay the cost of voluminous, abusive or otherwise disruptive records requests."

Here, the case involved a Flatwater Free Press reporter's request to the Nebraska Department of Environment and Energy in 2022 for a keyword search of emails as part of an investigation into nitrates in the state's drinking water.

After reporter Yanqi Xu got an initial $2,000 cost estimate, she narrowed the request from 10 to five years to try to reach a lower cost. But as the request got smaller and narrower, the cost estimates skyrocketed, her attorney says.

The state disputes it, saying while she shortened the time period, her later request broadened from emails between NDEE and natural resource districts to all emails with the search terms.

Both sides agree Flatwater ultimately was told it would need to pay a deposit of $44,103.11 before the state would start the search.

Shortly after Hamilton began his time at the podium, Justice William Cassel jumped in.

"We've seen a lot of arguments about what the policy should be as to who should bear the expense, if you will. But isn't the question before us today not what we think the policy should be, but what the Legislature in the statute it enacted adopted as the policy?" he asked.

Hamilton agreed, pointing to legislative intent, saying lawmakers anticipated the problem of "voluminous and sometimes abusive requests burdening public bodies."

He said it also carefully considered how to ensure that smaller requests could be made available to the public, by allowing the first four hours of time to be free for "searching, identifying, physically redacting or copying," so long as it isn't for an attorney's time, which is specifically excluded.

Hamilton said the initial search only identifies potential public records, unless they include information that would exclude them, like trade secrets, copyright-protected works or medical information.

"Someone has to search these emails because you simply can't punch terms into your Outlook mailbox and then have a set of public records. There's analysis to determine whether any individual document is even a public record," he said.

Hamilton said that if the "district court's rule" is accepted it would license abusive requests to university professors, small governmental bodies and state agencies.

Attorney Daniel Gutman, who represents Flatwater Free Press, said public records laws empower Nebraskans to access and review documents that belong to them.

"That is the backbone of government transparency," he said. "That promise is thwarted when the government charges tens of thousands of dollars as a precondition for access, which is what happened here."

Gutman said the fundamental problem was that NDEE's justification for the fee was the time needed to review the records for trade secrets and attorney-client privilege once they had been identified through a computer program search.

Chief Justice Mike Heavican said: "Doesn't the law require somebody to review for that?"

Guttman said the state office was talking about a secondary review, which is entirely discretionary. The law says the government "may" withhold a public document if it falls within a statutory exception.

"Our position — and what the district court agreed with — was the government is absolutely within its right to review documents to see if they fall in discretionary exceptions to disclosure. They just can't charge the public for that," he said.

Gutman said the legislature said public bodies could charge to provide documents and make documents available. What they're doing here is charging to withhold documents.

Cassel circled back to his initial question, this time for Gutman: "The question is not what we think the policy should be. The question is what does the policy, adopted by the Legislature in statute, mean?"

He said this is really a policy debate.

"I think they want the law changed. And I just think that this is the wrong chamber," Gutman said.

(c)2024 Lincoln Journal Star, Neb. Distributed by Tribune Content Agency, LLC.
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