The Nebraska Supreme Court ruled on Friday that state agencies have the right to charge for reviewing public records when citizens demand access to them.
The ruling came as part of a lawsuit filed by the nonprofit Flatwater Free Press against the Nebraska Department of Environment and Energy (NDEE). Flatwater sought agency emails containing the words “nitrate,” “nutrient,” “fertilizer,” and “nitrogen” as its reporter was investigating the issue of nitrate seeping into drinking water. The initial cost estimate by the agency came to be $2,000. Flatwater modified the request.
The agency then provided a new estimate of $44,103.11. Flatwater thought the charge was excessive and, therefore, sued the agency.
Last year, the Lancaster County District Court ruled in favor of Flatwater. The state appealed, and the case went to the Nebraska Supreme Court. In a 23-page ruling issued on Friday, the Supreme Court sided with the NDEE.
The key legal focus was NDEE charging for reviewing the records before releasing them to Flatwater. In its $44,000 cost estimate, NDEE told Flatwater that each email that contains the keywords will have to be reviewed to decide whether they can be made public or remain confidential.
“Staff running the search in Outlook is not time consuming. Reviewing individual messages is what takes the time,” the records manager at NDEE told Flatwater, according to the March 15 ruling.
In its complaint, Flatwater contended that NDEE’s cost estimate did not comply with Nebraska’s public records statute.
The Lancaster County District Court ruled that “other than for time spent ‘physically redacting,’ Nebraska law does not allow public officials to charge fees for time spent determining whether to make records unavailable.”
Flatwater’s request sought “electronic documents containing a keyword that can easily be searched and identified without any additional review,” it stated.
The Lancaster court said that state law Section 84-712 only allows agencies to require compensation related to public record requests for searching, identifying, copying, and redacting documents. It claimed the agency cannot charge for reviewing documents as the law does not include the term.
The Nebraska Supreme Court dismissed such arguments.
“Review is intrinsic to ‘searching, identifying, physically redacting, or copying.’ A dictionary definition of ‘search’ includes ‘to look at, read, or examine … for information.’ The definitions of ‘review’ include ‘to view, look at, or look over again,’” it said.
The Supreme Court noted that even though some of the requested functions could be performed without a review, like a keyword computer search, other functions, like identifying a document or physically redacting a document, would require some level of review.
“Flatwater effectively urges that once a computer search is run for an email containing a specified word, it is entitled to receive a copy of that email without any examination whatsoever, or at least, as a matter of policy, the cost of examining flagged emails should be borne by the public and not by the requesting party. However sympathetic we might be to its policy arguments, that is not our role,” the ruling said.
Instead, the court’s role is to interpret statutes and clarify their meaning. The ruling affirmed that the review process “is part of the ‘actual added cost used as the basis for the calculation of a fee for records.’”
‘Sad Day for Nebraskans’
Flatwater called the Supreme Court ruling a “sad day for Nebraskans’ right to know.” The ruling will pave the way for the state to charge Flatwater an “ungodly amount of money” to access public records.“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 nonprofit said.
“It will now presumably be even easier for any state agency or elected official or bureaucrat to charge any newsroom, and any regular citizen, the price of a Cadillac for public records—a price that in reality will likely cause the newsroom or Nebraskan to go away. To be clear: This was already happening regularly. It doesn’t take a law degree to guess that it will now happen more.”
Speaking to AP, Jane Kirtley, director of The Silha Center for the Study of Media Ethics and Law at the University of Minnesota, pointed out that the right to access public records is critical for holding the administration accountable.
“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 … Using crippling fees to discourage requests undermines that goal,” she said.
In an interview with Nebraska Public Media, Flatwater executive editor Matt Wynn blamed state officials for acting in “bad faith” when negotiating to release the requested records.
“When they give these estimates, I think they’re giving us numbers to make us go away … And when I say us, I mean citizens, not journalists.” Flatwater is considering whether to pay the demanded amount to the NDEE to access the records.
Carla Felix, a spokesperson from the NDEE, said that the department “consistently complies with all requirements of the Nebraska public records statutes. We stand ready to fulfill the Flatwater Free Press public records request or work with them on a narrowed request.”
