(CN) — The Nebraska Supreme Court on Friday ruled that the state's Department of Environment and Energy could charge a news organization for the time its employees spent reviewing emails that are the subject of a public records request.
The state's top court overturned a trial judge who had concluded last year that — unlike searching, identifying, copying and redacting documents — the law didn't include reviewing documents among the activities for which a state agency could require compensation in response to public record requests.
"To the extent review is needed to ensure that the public record is responsive to the request or that portions of the record are not exempt from disclosure, the review is part of the actual added cost used as the basis for the calculation of a fee for records,” Justice William Cassel said in the unanimous decision.
The judge noted that the statute governing public record requests specifically prohibits a government entity from charging for the work of outside attorneys reviewing documents in response to these requests, presumably to keep access to public records affordable.
"Had the legislature intended to exclude time spent by any employee reviewing the records for a legal basis to withhold them, it could have done so," Cassel wrote. "But the statute specifically limited the exclusion to services of an attorney. And we cannot read those words out of the statute."
The case was brought by the Flatwater Free Press after the Department of Environment and Energy had informed them it would cost over $44,000 to receive copies of emails to and from the agency's staff members that contained the words "nitrate," "nutrient,” “fertilizer” or “nitrogen” over a five and a half year period.
Flatwater claimed the department couldn't charge for any costs to determine if a document was the subject of ongoing litigation or if the document felt within statutory exceptions to the public records statutes.
"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," according to Friday's ruling.
"However sympathetic we might be to its policy arguments, that is not our role."
Daniel Gutman, an attorney representing Flatwater, said he respectfully disagreed with the court's conclusions, but added that there was still a lot of gray area in terms of what specific reviews a government agency is allowed to charge for. This, Gutman said, was an issue that would need to be further litigated as the case returns to the trial judge.
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.
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