Nebraska Journalist Trust taking NDEE to court over pricey public records request

LINCOLN, Neb. (KOLN) - Thursday, a coalition of journalists and their supporters will take the records manager for the Nebraska Department of Environment and Energy before a judge in a fight over a public records request with a $44,103 price tag.

“That is just such an outrageous amount of money,” Matt Wynn, executive director of the Nebraska Journalism Trust and reporter for the Flatwater Free Press said.

The public records request, which was made to NDEE in June 2022, requested copies of emails containing the keywords “nitrate,” “fertilizer,” “nutrient” and “fertilizer” from employees in a handful of NDEE departments related to water quality and livestock management.

Wynn said the request is part of their ongoing coverage of nitrate levels in Nebraska water, and whether or not that’s impacting the health of Nebraska kids. Nebraska currently has one of the highest rates of pediatric cancer in the country.

“We had a really good tip that this department had emails that would indicate questionable behavior,” Wynn said.

But Wynn said the high price tag is essentially denying the request. Also taking into account that he’s gotten similar requests fulfilled by state agencies in the past for a few hundred dollars.

“Now it’s to the point where they’re just going to quote us an outrageous amount of money and give us nothing,” Wynn said. “Sorry, you can’t do that. You can’t do that.”

The Nebraska Department of Environment and Energy declined to comment on the lawsuit or public records request. In legal documents filed in the case, however, the agency said the cost estimates come from the dozens of hours it would take employees to go through the emails to omit private information.

Daniel Gutman, attorney for the Nebraska Journalism Trust, said this is against state public records laws because the statutes prohibit the government from charging for legal review of documents.

“What the agency has done here is they said, Well, we’re not going to have our lawyers do it, we’re going to have our assistants do it,” Gutman said. “And our argument is, regardless of who does it, whether it’s an administrative assistant or a lawyer, the law doesn’t allow for the government to charge the public for withholding documents. It only allows the government to charge for providing documents.”

NDEE said in court documents, no legal time or attorney legal review is included in the cost estimate and they don’t have to provide a new estimate, which is what Gutman said the Trust is asking for.

“We fully agree that the government can charge costs to fulfill a public records request,” Gutman said. “So we agree with that. And Flatwater is willing to pay a cost. But the caveat is, is that the costs need to be legally justifiable under the statute.”

The Nebraska Department of Environment and Energy isn’t the only agency to put a high price tag on public records, and it’s not just happening to journalists.

Omaha Senator Machaela Cavanaugh said she was quoted $64,000 for a similar email search of Health and Human Services employees involved in the bidding process and awarding third-party contracts.

“In order to do my job of due diligence and oversight, I’m going to have to request records from time to time,” Cavanaugh said. “And I’ve never in any of my requests ever been charged...to be charged anything as a legislator is upsetting to be charged $64,000 It really was astonishing and makes me question their process.”

Included in the response to Cavanaugh is a breakdown of hours of time spent by attorneys reviewing the more than 130,000 emails included in the request. 10/11 NOW asked DHHS for comment on both the high estimate and whether or not they believe the attorney review costs comply with state laws.

A statement from Jeff Powell, interim director of communications for DHHS, said while the department has fulfilled two-thirds of the requests, compiling the emails will require too much time to be done without charge.

“Part one of the request in question consists of a massive amount of data, which will require an estimated 3,000 plus hours of staff time to ensure statutory compliance. This requires several levels of review. The estimated fee is for the initial administrative review (not the legal review) – to query and examine thousands of emails and electronic messages and to assure responsiveness.”

Powell said the “legal review” will be done without cost after the review they are charging for, even though their estimate says attorneys will complete both rounds of reviews.

Cavanaugh said she was frustrated to know it was not just her getting these types of estimates.

“The entire intention behind having access to these records is to keep transparency in the government. And I believe that it is the role of media to be watchful citizens for the rest of the state. And you can’t do that unless you have access to transparency and government,” Cavanaugh said.

Senator Danielle Conrad introduced a bill, LB366, this legislative session that would stop price estimates like this. Conrad’s bill would take several steps to strengthen public records laws, including requiring police body camera video to be released after in-custody deaths, doubling the number of hours the government is required to perform for free when compiling records, and making it illegal to charge for any kind of review of documents for redaction, whether done by a lawyer or not.

“Enough is enough,” Conrad said. “Nothing is undermining the intent of our strong open records legislation, of course, there are going to be certain instances where sensitive information will be redacted but that is very clearly defined in the open records act and it really shouldn’t be an invitation to government attorneys to run up huge bills or to redact significant meaningful aspects of public record from the public view.”

Conrad’s bill has been referred to committee but hasn’t been scheduled for a hearing date yet. She said she hopes it will get the bipartisan support similar open records laws have gotten in the past.

As for the Flatwater Free Press, their best shot is the court appearance Thursday. Gutman said judges historically land on the side of more transparency so he’s feeling confident.

“We’re entitled to these records. These are public records, and we shouldn’t have to pay nearly $50,000 for them,’ Gutman said.

Gutman said the judge likely won’t make a decision Thursday, just hear arguments from both sides, take it under advisement, and announce his judgment later.

Wynn said regardless of the outcome, they’ll keep fighting.

‘We’re talking about kids and cancer,” Wynn said. “We’re talking about the agency that regulates the water we drink that is potentially probably sickening our kids not doing what they’re supposed to do. It’s worth it.”