Conrad bill pushes to ensure Nebraskans have the ‘greatest possible access’ to public records

LINCOLN — State Sen. Danielle Conrad of Lincoln, in her previous role leading the Nebraska chapter of the American Civil Liberties Union, often sought public records to bolster the legal arguments of people alleging that state or local governments had crossed a line. 

During her first stint in the Legislature, from 2007-11, she advocated the importance of inexpensive access to public records in order to help hold public agencies, employees and elected officials accountable for their actions.

This year, Conrad proposed several changes to state public records laws that she and others said would make it harder for agencies to withhold public information or keep people from receiving it by charging them more than is appropriate. The bill had its hearing Thursday.

Among the proposals in Legislative Bill 366: 

• Requiring that public agency estimates of the expected costs of fulfilling public records requests are attested to under oath by the person responsible for overseeing the records. (The current practice is informal and not specific and can result in agencies charging exorbitant amounts.)
• Extending the amount of staff time spent on a records request, from four hours to eight hours, before a public agency can charge a Nebraska resident for staff time. People outside Nebraska seeking records would be charged after the first four hours. (Representatives of county officials testified that many Nebraska’s counties are being swamped by outside requests for information.)
• Specifying that only an attorney’s work can be counted as legal costs. (Some state and local agencies have been claiming “legal costs” for time their staff spends reviewing their own emails before submitting them to a lawyer.)
• Prohibiting agencies from charging for pages that are blank or mostly redacted and convey little to no information. 
• Adding a public interest exception to the public records law that would allow public agencies the discretion to provide public records at little to no charge. (This provision is modeled after an Oklahoma law.)
• Requiring the public release of police body-worn camera footage of in-custody deaths after completion of Nebraska’s grand jury process. (Currently, individual police agencies make their own decisions about releasing such footage.) 

Why changes are needed

Conrad testified that Legislative Bill 366 would reinforce the original intent of Nebraska’s public records statute by providing the public with the “greatest access to government records and government activity as possible.” 

She said the driving force behind the push is an “incredible sea change” in how public agencies respond to public records requests at the state and local level, often by dragging their feet on returning results, threatening excessive fees before fulfilling requests or denying access.

“It’s not one agency, and it’s not one community,” Conrad said. “In previous years, you’d say, ‘Hey I’d like to get this information about this … and you could actually get that information. We’ve seen really a tightening and an evisceration of that approach in a really short period of time.”

She and Rose Ann Shannon of Media of Nebraska offered several examples, including the lawsuit it took to get the Nebraska Department of Correctional Services to provide the name of the company that supplied the drugs used in executions.

The Nebraska Department of Health and Human Services tried to charge State Sen. Machaela Cavanaugh of Omaha $64,000 for public information she sought for her work on the Legislature’s Health and Human Services Committee.

Both Conrad and Shannon referred to the recent lawsuit by the Flatwater Free Press in its effort to obtain public records about nitrates in Nebraska’s water without being charged for staff time to review email records for whether they might be legally provided.

Spike Eickholt of ACLU Nebraska pointed to anger on the political right and left as a symptom not of “distrust of government,” but of “frustration” that government “seems inaccessible or not transparent.”

He gave the example of the ACLU asking the Lincoln Public Schools for public records related to its sex education and human sexuality courses. He said the school district said the request would take 20 weeks and cost $31,000.

“For the general public, that’s just not attainable,” he said.

Defense of status quo

The Nebraska League of Municipalities and the Nebraska Association of County Officials pushed back against the proposed increase in free hours Nebraska residents would get for public records requests. Beth Bazyn Ferrell of NACO said they “would prefer to keep that at four hours.” 

Christy Abraham of the League of Nebraska Municipalities asked to reduce the number of free hours for out-of-state interests. 

“Is it possible when we get these requests that we don’t have to give them four free hours of time, that we can just charge them right away?” she asked. 

She pointed to the amount of work county clerks are doing to fulfill out-of-state requests from companies that turn around and sell the information. 

Abraham also expressed concerns about what it would mean legally for city and county custodians of record to have to estimate costs “under oath.” But she said the league was open to additional discussions about the measure.

Body cameras

Lancaster County Attorney Pat Condon led a handful of law enforcement officials testifying against expanding access to body-worn camera footage after every in-custody death. He and Omaha Police Lt. Dan Martin said they worried about the impact on an officer’s right to a fair trial if charges were brought after such footage was released.  

“Body-worn camera audio and video evidence is essential evidence in many legal proceedings for the fair adjudication involving individuals’ rights,” Condon said. 

Conrad pushed back on Condon’s comment that the videos might increase the liability or criminal risk to cities, counties and officers. She said those risks would increase only if officers in the recordings have done something wrong. She noted that juries can be screened and sequestered and that trials can be moved.

Martin and William Rinn, chief deputy of administration at the Douglas County Sheriff’s Office, argued that the decision on releasing body-worn camera footage should stay with law enforcement agencies. Martin said forced release of the footage could turn people against officers before all of the facts come out. 

“We appreciate the reference to them being put off until after the grand jury,” Rinn said. “However, even released after that, a layperson is left to interpret things when they might not know what they’re looking at.” 

Eickholt, of the ACLU, testified that the release of such footage is essential for people to have faith in a grand jury process that is already conducted behind closed doors. People, he said, “are going to want to see it themselves.” 

LB 366, Conrad said, is not a political bill in the traditional sense of conservative or liberal. 

“These are the people’s records, not the government’s,” she said. “It’s our job to make sure the people have access to them.”