State ex rel. BH Media Group v. Frakes
305 Neb. 780
| Neb. | 2020Background
- In late 2017 three relators (Omaha World-Herald, Lincoln Journal Star, and Amy Miller/ACLU) requested DCS records concerning procurement of lethal-injection drugs.
- DCS (Director Scott Frakes) produced some records but withheld communications with the supplier, DEA forms, inventory logs, chemical analysis reports, photographs of packaging, invoices, and purchase orders, invoking Neb. Rev. Stat. § 83-967(2) (execution team identities confidential) and arguing the records were not "public records.”
- Relators sought writs of mandamus under the Nebraska public records statutes to compel disclosure; the district court ordered disclosure of records that did not on their face identify execution-team members, but withheld purchase orders and chemical analysis reports that the court found identified team members on their face; the court later awarded relators attorney fees.
- DCS appealed; relators cross-appealed, arguing the purchase orders and chemical analysis reports should be produced with redactions of confidential portions under § 84-712.06.
- The Nebraska Supreme Court dismissed the initial appeals for lack of jurisdiction, then affirmed in part and reversed/remanded in part: it held § 83-967(2) is an exemption under the public records statutes (not a blanket exception to those statutes), found DCS failed to prove by clear and convincing evidence that most withheld records were "reasonably calculated" to identify execution-team members, and ordered nonexempt portions of purchase orders and chemical analysis reports to be redacted and disclosed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing / jurisdiction to bring mandamus under § 84-712.03 | Relators: they are citizens/interested persons and established a prima facie claim that requested documents are public records and were denied access. | Frakes: relators failed to prove documents are "public records," thus lack standing/jurisdiction. | Court: relators had standing; relators established a prima facie claim and district court findings were not clearly erroneous. |
| Whether § 83-967(2) operates as an "other statute" that removes records entirely from public-records scheme | Relators: § 83-967(2) is a limited exemption, not a wholesale exception; DCS must follow public-records procedures and burdens. | Frakes: § 83-967(2) makes execution-team identities and any info reasonably calculated to identify them outside the public-records statutes entirely. | Court: § 83-967(2) qualifies as an "other statute" but functions as a narrowly construed exemption under the public-records statutes, not a complete exception that relieves DCS of statutory duties. |
| Whether DCS proved by clear and convincing evidence that withheld records are "reasonably calculated to lead to" identification of execution-team members | Relators: records (other than some purchase orders/chemical reports) do not identify team members and can be disclosed or redacted. | Frakes: disclosure of supplier-identifying records could lead (moderately likely) to identification of team members; burden on relator to show otherwise. | Court: DCS failed to meet the clear-and-convincing burden for most categories (communications, DEA forms, inventory logs, photos, invoices); district court rightly ordered disclosure. |
| Segregability / redaction of records that contain both exempt and nonexempt information | Relators: purchase orders and chemical analysis reports should be produced with redactions of identifying information under § 84-712.06. | Frakes: withheld those documents entirely, arguing they are wholly exempt. | Court: nonexempt portions must be disclosed; remanded for district court to order redaction of identifiable execution-team information and release the remainder. |
| Award of attorney fees and court jurisdiction after notice of appeal | Relators: timely requested fees in pleadings; post-judgment motions to alter or amend were timely and tolled the appeal, allowing award. | Frakes: appeal and docket fee divested court of jurisdiction; relators did not "incur" fees because a third party agreed to pay. | Court: relators requested fees prior to judgment; post-judgment motions were timely and nullified earlier notice of appeal; fees were "reasonably incurred" even if reimbursed. |
Key Cases Cited
- Aksamit Resource Mgmt. v. Nebraska Pub. Power Dist., 299 Neb. 114 (2018) (narrowly construes public-records exemptions and emphasizes disclosure where public funds are at issue)
- State ex rel. Veskrna v. Steel, 296 Neb. 581 (2017) (public-records burden allocation and disclosure policy)
- State ex rel. Neb. Health Care Assn. v. Dept. of Health, 255 Neb. 784 (1998) (describes burdens in mandamus public-records actions)
- State ex rel. Unger v. State, 293 Neb. 549 (2016) (distinguishes privileged categories that are not "public records")
- State ex rel. Sileven v. Spire, 243 Neb. 451 (1993) (applies "other statute" exemption alongside § 84-712.05)
- Dept. of Air Force v. Rose, 425 U.S. 352 (1976) (FOIA exemptions must be narrowly construed)
- U.S. Dept. of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989) (privacy/freedom of information principles on records disclosure)
- Mo. Coalition for the Env't v. U.S. Army Corps of Eng'rs, 542 F.3d 1204 (8th Cir. 2008) (nonexempt portions of documents must be segregated and disclosed)