LINCOLN, Neb. (CN) — A trade secrets review conducted by state employees in response to a nonprofit news organization's public records request was not discretionary and therefore required a fee of more than $44,000, Nebraska's solicitor general argued in front of the state Supreme Court on Thursday.
“The District Court misunderstood that not all emails are public records and it misunderstood that there are a number of statutes, even outside of the public records statues, that bear on whether a document is a public record," Eric Hamilton told justices.
“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 added.
Hamilton's argument was part of an appeal heard by the Cornhusker State's high court, nearly a year after a Lancaster County federal judge ruled the Nebraska Department of Environment and Energy violated state statutes by requiring Flatwater Free Press to pay $44,000 for public records from the Nebraska Department of Environment and Energy.
Lancaster County Judge Ryan Post ruled in a 16-page order released on Valentine's Day 2023 that the Nebraska Supreme Court had made clear “the public records statutes encourage open and transparent government” and “the Legislature has expressed a strong public policy for disclosure.”
Post added that while some records require a review, others can be easily found with a keyword. He said once documents have been searched for and identified, any additional layer of review is up to the government — but not part of the total fee.
“The duty is clear, and the statute is unambiguous,” he wrote. “It is not for the court to micromanage the details of a cost estimate in a mandamus action. But the evidence here showed the custodian did not perform her ministerial duty, and the request for writ of mandamus as to the custodian will be granted.”
The state appealed the Post's ruling, saying he improperly concluded that a writ of mandamus was the proper action and in deciding that state statute does not authorize fees for document review time.
Hamilton told the justices Thursday that Flatwater's request would have required 927 hours of taxpayer-funded time from 103 state employees at no charge.
“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," he said.
Daniel Gutman, a prominent Nebraska First Amendment attorney, argued on behalf of Flatwater the review was discretionary under state statute. A records custodian reviewing to see if the records are available to the public might be required, but a review to see if they contained exceptions to disclosure was discretionary.
“The people of Nebraska, through their public records laws, are fully empowered and authorized to access and review documents that belong to them. That is the backbone of government transparency," Gutman told the justices. "That promise is thwarted when government charges tens of thousands of dollars as a precondition for access, which is what happened here.”
Gutman's presentation was interrupted by Chief Justice Michael G. Heavican, who asked if clients like Flatwater had a responsibility to conduct a more "reasonable" search. Gutman's response: Though not required by statute, that's exactly what happened.
"When we started with ten years of requests, the fee estimate was $2,000," he said. "As we narrowed the request, as we cut down years and cut down departments and narrowed our search terms, the cost estimate skyrocketed to $44,000.”
Gutman said he and his clients still do not understand why the bill went up so much.
Flatwater has said reporter Yanqi Xu made a public records request to the department in April 2022 seeking emails regarding nitrates, nutrients, fertilizer and nitrogen records. Fertilizer-related nitrates are a concern in the agriculture-heavy state, and the nonprofit has reported extensively on the issue.
Records custodian Ane McBride asked for the request to be narrowed, and then gave a cost estimate of $2,000. After negotiating to modify the request again, McBride's new estimate came out to $44,103.11.
Matt Wynn — the executive director of the Nebraska Journalism Trust, which funds Flatwater — has expressed sympathy with public officials who may deal with large numbers public records requests, but is adamant the law allows the public access to these records.
Both Gutman and Hamilton were asked by Justice William B. Cassel if they understood the matter was not what the justices thought policy should be, but what state statute says.
Hamilton said that McBride told Flatwater the $2,000 estimate could change. And he said the trade secrets review was something a requestor could be charged for.
Gutman agreed with the judge, saying, "I think they want the law changed. I just think this is the wrong chamber,” referring to Nebraska's unicameral Legislature, meeting elsewhere in the towering limestone State Capitol building that morning.
Note: Courthouse News reporter Andrew J. Nelson is an occasional Flatwater Free Press contributor, most recently in April 2023.
Follow @nelson_aj
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