Nebraska Supreme Court hears arguments over public records case, high fees

Flatwater Free Press case hinges on whether law allowed state agency to charge $44,000 for ‘reviewing’ records

By: - February 8, 2024 5:09 pm

Judges of the Nebraska Supreme Court (and when they were appointed), front row from left: Lindsey Miller-Lerman (1998), Chief Justice Michael Heavican (2006), William Cassel (2012). Back row, from left: Jonathan Papik (2018), Stephanie Stacy (2015), Jeffrey Funke (2016) and John Freudenberg (2018).

LINCOLN — The nonprofit news site Flatwater Free Press asked the Nebraska Supreme Court on Thursday to uphold a ruling that it was presented with an excessive $44,000 bill by a state agency to provide public documents.

Attorney Daniel Gutman argued that state law is clear that government agencies cannot charge extra fees for “reviewing” and “withholding” records under the state open records laws.

He asked the judges to uphold a ruling last year by Lancaster County District Judge Ryan Post.

Such excessive and unreasonable fees, Flatwater and freedom of the press advocates have argued, serve to block disclosure of public records, violating the spirit of the state’s disclosure laws and serving to “chill” journalism.

‘Voluminous and abusive’ requests

Eric Hamilton, who represented the Nebraska Department of Environment and Energy, countered that both small and large public bodies would be required to shoulder the cost of  “voluminous and sometimes abusive” record requests if the lower court’s ruling was upheld.

This is really a policy debate. I think they want the law changed ... and this is the wrong chamber

– Daniel Gutman, attorney for the Flatwater Free Press

State statutes, Hamilton told the court, allow “special service charges” to review whether the records to be released are indeed public and if they are protected from release by attorney-client privilege or if they are trade secrets.

The case revolves around a public records request by Flatwater for emails and other documents containing the words “nitrate,” “fertilizer” and “nutrient.”

The news site has produced a series of stories on nitrate contamination of the state’s groundwater based on public records it has been able to obtain, including one concerning contamination near hog barns operated by the family of Gov. Jim Pillen.

Other media, including the Nebraska Examiner, also use information gleaned from record requests for reporting.

‘Can’t justify’ high fees

The NDEE initially estimated Flatwater’s request would cost $2,000 but asked the news site to narrow its request.

That led to negotiations and changes in the request — changes that the state argued expanded the request, and led one Supreme Court judge, William Cassel, to question if that was the case during the oral arguments.

Ultimately, the state environmental agency estimated it would require 927 hours of work that would cost $44,103.11.

“To this day we can’t justify that,” Gutman told the judges.

Judges on the panel asked Gutman several questions, including whether the law requires a review if the records contain trade secrets or privileged communications.

Gutman said that such a search is “discretionary” under the law and that the charges presented to Flatwater went beyond “searching, identifying, physically redacting, or copying” of records that can be the subject of fees.

Really about changing policy

This is really a policy debate,” he told the judges. “I think they want the law changed … and this is the wrong chamber.”

Joining the NDEE in seeking to overturn the decision by Judge Post were the associations that represent Nebraska cities, K-12 schools, counties and county attorneys.

The Reporters Committee for Freedom of the Press and the Goldwater Institute, an nonpartisan policy group, submitted briefs in support of the Flatwater Free Press. The Nebraska Examiner signed onto the brief by the Reporters Committee, as did Gray Media Group Inc., Hearst Corp., Lee Enterprises, Media of Nebraska, Nebraska Broadcasters Association and the Nebraska Press Association.

The Supreme Court typically takes several weeks before ruling on such appeals.

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Paul Hammel
Paul Hammel

Senior Reporter Paul Hammel has covered the Nebraska state government and the state for decades. Previously with the Omaha World-Herald, Lincoln Journal Star and Omaha Sun, he is a member of the Omaha Press Club's Hall of Fame. He grows hops, brews homemade beer, plays bass guitar and basically loves traveling and writing about the state. A native of Ralston, Nebraska, he is vice president of the John G. Neihardt Foundation.

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