New Nebraska law will expand public records access for Nebraskans

Nebraska residents should have easier access to public records under a bill that, in effect, overrules a recent Nebraska Supreme Court decision allowing the state to charge high amounts for retrieving public records.

Gov. Jim Pillen signed Legislative Bill 43, adopting the First Freedom Act and new public record provisions, on Wednesday, March 27, after it unanimously passed in the legislature, 39-0. The bill went into immediate effect due to an emergency clause.

The emergency clause was added to an amendment inspired by Lincoln Sen. Danielle Conrad earlier this legislative session. The bill was originally carried over from last year’s session.

However, some records will remain protected under the law. These include medical records, security information, some student personal information, identifying records of victims of sex trafficking and other confidential communications.

Daniel Gutman, the lawyer for the Nebraska Journalism Trust, said the clause explicitly overturns the Nebraska Supreme Court ruling on March 15 that reversed a lower court’s ruling from last year.

But that wasn’t the end of the matter.

“Remarkably, six days after the Supreme Court issued that opinion saying that non-attorneys should charge for review time, the legislature passed legislation explicitly overturning that decision,” Gutman said.

LB 43 dismantles the justification of the Supreme Court’s holding.

The case started in November 2022 when the Nebraska Journalism Trust filed a lawsuit against the Nebraska Department of Environment and Energy and its records manager. The Flatwater free press, Nebraska’s first independent, nonprofit newsroom focused on investigative journalism and a publication of the Nebraska Journalism Trust, requested NDEE emails with certain keywords over a 12-year period.

NDEE management initially advised Flatwater to shorten the time frame from 12 years to five years on its request to avoid a costly quote. After shortening the time frame, the NDEE manager estimated the request to be $2,000.

When the official records request was then filed, the quote skyrocketed to more than $44,000. In response, Flatwater filed a petition against NDEE, saying that the estimate wasn’t legal under Nebraska’s public records statutes. The quote included itemized estimates, including the pay rates of NDEE staff who would oversee the request and make sure the documents requested by Flatwater didn’t contain classified information or attorney-client privilege.

When the NDEE didn’t lower the price, Flatwater took the case to district court citing an obstruction to public oversight. The court sided with Flatwater, claiming that the agency could not legally charge Flatwater so NDEE staff could review the emails. The word “review” is not within the purview of the Nebraska public records statutes.

“Nebraska law does not allow public officials to charge fees for time spent determining whether to make records unavailable,” the Nebraska Supreme Court ruling read.

However, the high court rejected the district court’s ruling that Nebraska’s law didn’t allow agencies to charge for supervisory review of public records requests.

“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,” Matthew Hanson, editor of the Flatwater free press, wrote in the publication’s weekly newsletter the day of the ruling.

Additionally, on March 11, four days before the Supreme Court ruling, Pillen announced the retirement of NDEE director Jim Macy in a press release. In the same release, Pillen thanked Macy for his years of service and appointed Thad Fineran as interim director effective April 1.

Ultimately, Flatwater remains without access to the public records initially requested and has not paid the $44,000, but Gutman said he and the Nebraska Journalism Trust will re-evaluate and decide how to proceed.

“Ultimately, I think that our public records laws still need a lot of work in terms of updating and transparency,” Gutman said. “But this particular outcome is one worth celebrating.”