Journalists win fight with Nebraska over $44,000 public records charge

(CN) — A Nebraska state agency violated state law by requiring an independent news organization to pay $44,000 for public records, a state court judge ruled Tuesday. 

That means Flatwater Free Press, of the Nebraska Journalism Trust, has prevailed in its Freedom of Information Act claims against the Nebraska Department of Environment and Energy. The news outlet sued the department and records manager Shawnna Lara claiming it was given an extremely expensive and unlawful cost estimate for a request and retrieval of public records.

Flatwater said its employee Yanqi Xu made a public records request to the department in April 2022 seeking emails regarding nitrates, nutrients, fertilizer and nitrogen records. Custodian Ane McBride asked for the request to be narrowed down, and then gave a cost estimate of $2,000. After negotiating to modify the request again, McBride's new cost estimate was $44,103.11. The news organization’s attorney got the same response. 

In a statement announcing the lawsuit this past November, the outlet’s executive director said the records were sought to confirm a tip Flatwater received, to explain how the department communicates with Nebraskans who use nitrates.

At a hearing in February, McBride said that the cost estimates came from reviewing the documents requested. She said the agency chose the higher of two fees with a second layer of review “at a higher level.”

But on Tuesday, Lancaster County Judge Ryan Post ruled in a 16-page order that the Nebraska Supreme Court has made clear “the public records statutes encourage open and transparent government” and “the Legislature has expressed a strong public policy for disclosure.”

The department had tried to quash the suit, claiming it is shielded by sovereign immunity.” Post agreed and sustained the motion for a writ as to the entire agency, but granted the writ of mandamus as to McBride. He found Flatwater met its burden to show that it has a clear right to a cost estimate in compliance with the statute, the custodian has a clear duty to provide the estimate and no other plain and adequate remedy is available to the press.

“The primary disagreement here is over what charges may be included in the cost estimate,” Post wrote. “Relator argues the ‘fee shall not exceed the actual added cost of making the copies available’ and is expressly limited by § 84-712. Respondents counter that it is within their discretion to charge fees for any labor unless prohibited by statute.”

Post found the evidence presented gave clear examples of requested records which could be searched, identified and copied “for a substantially lower fee than the estimate and did not mention any need for redaction.”

“But when the costs of review were included, the estimate skyrocketed.” he wrote. 

“This case shows that under respondents’ proffered interpretation, there would be few limits on what may be included in the fee. The custodian could always choose the higher fee, or charge for a second or third layer of review, unless expressly barred by statute. The text of the statute is clear, the ‘fee shall not exceed the actual added cost of making the copies available.’”

Post added that while some records require a review, others can be found easily 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 Department of Environment and Energy did not respond to a request for comment before deadline. 

Matt Wynn, executive director of the nonprofit Nebraska Journalism Trust, called the outcome “fabulous.” 

“We could not have asked for a better ruling,” he said. “It was a little shocking that we were even in a position to have to file this. We did everything we were supposed to do. They were beyond the pale in choosing not to work with us.”

Wynn said Flatwater is the state’s first truly independent news outlet, “and this is why.” He said state law explicitly showed the department’s position was “outrageous.”

“I think a reporter should know the records law for wherever they do their work,” Wynn said. “You should be able to go toe to toe with public officials, and be able to call out when they’re wrong. This demonstrates the value in that. We need to be more strident in calling them out on it — this is the kind of fight journalists dream about.”

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