Flatwater Free Press, NDEE argue case over public records before a judge

LINCOLN, Neb. (KOLN) - Whether or not the Nebraska Department of Environment and Energy can charge the Flatwater Free Press $44,000 for a public records request is now in the hands of a judge.

Flatwater’s Matt Wynn and his attorney went before the judge Thursday regarding a June 2022 records request seeking emails sent and received by NDEE employees related to the regulation of nitrates in water. Wynn told 10/11 the non-profit newsroom was looking to confirm a tip they got alleging potential wrongdoing. It’s part of their investigation into nitrate levels in Nebraska’s drinking water, a story important enough that he said the records are worth suing over.

“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.”

Wynn testified when the request was first sent, they got a cost estimate of $2,000. Flatwater narrowed the request, but then got a final estimate of $44,103.11.

“As their request got smaller and narrower, the cost estimates got bigger. What became clear is NDEE was charging for not an authorized charge, which is reviewing and withholding of documents under statutory exceptions to disclosure,” Daniel Gutman, attorney for The Nebraska Journalism Trust, which is also led by Wynn and suing on behalf of the Flatwater Free Press, said.

Assistant Attorney General Christopher Felts spoke on behalf of NDEE. Their former records manager, Ane McBride, was also named in the suit. Felts told Judge Ryan Post the estimates were legal.

“The statute is clear on its face that you can, it permits after the first four hours of time spent searching, identifying, physically redacting, or copying that an agency can begin to charge for that time so long as it’s not using an attorney’s time to do a legal basis for review,” Felts said.

McBride testified that it would take more than 100 employees between four and 12 hours to review their emails to make sure they were public records and didn’t contain trade secrets or confidential information which is exempt from public records laws.

Gutman said this is against state statutes that say agencies can charge for the hours it takes to search, identify, physically redact and copy records, but it doesn’t specifically say they can charge for reviewing them to see if they can be excluded.

“The charges under Nebraska’s public records laws which have to be construed in favor of disclosure, do not authorize fees by silence or implication,” Gutman said. “That’s what you have to say here. The text provides for four things you can charge for and this is not one of them.”

Judge Post asked the state about this too, wondering why the legislature didn’t include the word “review” in the law when it was drafted. Felts said it’s implied.

“Going over those records would be part of identifying whether that particular item that came up in the search is even a public record in the first place and also determining whether it may need to be redacted,” Felts said.

The judge also asked Gutman why the state laws say agencies can’t charge for attorneys’ time to review and if that being included means they can charge for a review done by other employees. Gutman maintained that the laws are clear and the state can’t take silence as affirmation.

“They have to point to text that authorizes it and they can’t do it,” Gutman said.

Judge Post said he will take both sides’ arguments under advisement and provide his judgment at a later date. If he lands on the side of the Flatwater Free Press, NDEE would be required to give them a new cost estimate without those hours of review included.