Watchdogs worry a Nebraska Supreme Court ruling could lead to high fees for open records

OMAHA, Neb. — The Nebraska Supreme Court on Friday ruled in favor of a state government agency that sought to charge a news organization nearly $45,000 for public records on water pollution, leading to concerns that exorbitant fees could be used to keep information from the public.

The high court found that state law allows special fees to comply with records requests that take more than four hours to compile.

Matthew Hansen, the editor of the nonprofit news provider Flatwater Free Press at the center of the case, panned Friday’s ruling in an editorial, calling it a blow to Nebraska’s public records law.

“This clears the way for the state of Nebraska to charge us an ungodly amount of money to gain access to public records related to the state’s growing nitrate-in-groundwater problem,” Hansen wrote. “This decision is a blow to Nebraska’s public records law, a law written to protect media outlets like ours and Nebraskans like yourselves from the secrecy of those who hold power.”

The ruling came during Sunshine Week, an observance of the importance of public access to government information. A nationwide review of procedures by The Associated Press and CNHI News revealed a patchwork of complicated systems for resolving open government disputes that often put the burden of enforcing transparency laws on private citizens.

The ruling stems from a lawsuit brought by Flatwater in its effort to obtain public records from the Nebraska Department of Environment and Energy regarding groundwater pollution. According to court records, an agency manager initially estimated the cost to be $2,000 to carry out a broad request seeking all emails mentioning “nitrate,” “fertilizer” and other keywords over a 12-year period.

Flatwater then narrowed its request to emails containing those words among a handful of natural resource districts over a nearly six-year period. The agency manager then estimated the cost of producing those records at more than $44,000, based on an hourly rate for 102 employees to search, analyze and save emails, as well as the hours it would take to review the emails to see if they should be excluded as confidential.

A district court judge sided with Flatwater, saying state law only allows fees to be charged for physically redacting emails, not reviewing them to see whether they can legally be withheld. The state agency appealed, and the state's high court reversed the lower court ruling.

It relied on long-standing precedent that appeals courts must rely on the plain language of law, not reading anything into or out of that language to infer the intent of the Legislature. Based on that, the high court found that the law explicitly allows a special service charge for “searching, identifying, physically redacting, or copying” the public information requested if it take more than four hours.

Flatwater argued on appeal that the word “reviewing” isn't included in state law allowing special fees and therefore can't be read into the law under the plain language precedent.

“But review is intrinsic to ‘searching, identifying, physically redacting, or copying,’” Justice William Cassel wrote in the opinion for the high court, adding that the court applied “well-known rules of statutory interpretation and construction" to come to that conclusion.

The Nebraska Supreme Court sent the case back to the lower court, ordering a judgment that conforms with the high court’s ruling. The problem with that, said Flatwater attorney Daniel Gutman, is that the high court didn't define what types of review of records requested are subject to charges.

State law specifically does not allow a government division to charge fees to have an attorney review the requested records to determine if they're exempt from open record laws. In the Flatwater case, Gutman said, the agency had its employees — not an attorney — review the records to get around that exemption.

“This is a very intensive legal review,” Gutman said. “We continue to believe that it is not lawful for non-attorneys to charge for this review that, under law, only attorneys can perform.”

The news group is reviewing its next options, Gutman said.

The Nebraska Attorney General's Office, which represented the Department of Environment and Energy, declined to comment on Friday's ruling.

Jane Kirtley, director of The Silha Center for the Study of Media Ethics and Law at the University of Minnesota, cautioned that access to public records is essential for an informed citizenry.

“While Nebraska law does allow state agencies to recoup reasonable expenses, the spirit of these laws is not for public access to be a cash cow, but to promote public oversight and government accountability,” Kirtley said. “Using crippling fees to discourage requests undermines that goal.”