State ex rel. Veskrna v. Steel
296 Neb. 581
| Neb. | 2017Background
- Les W. Veskrna requested Judicial Branch Education (JBE) records (materials, presenter identities, correspondence) on child custody/parenting time since July 1, 2012; State Court Administrator Corey Steel denied the request as confidential.
- Steel relied on an unwritten Committee policy and statutory language authorizing the JBE advisory committee to develop rules addressing confidentiality, plus separation-of-powers and a claimed judicial deliberative-process privilege.
- Veskrna sued for a writ of mandamus under Nebraska’s public records act seeking disclosure; both parties moved for summary judgment; the district court conducted in camera review of 12 documents.
- The district court concluded most documents were public records not protected by the deliberative privilege, ordered disclosure with redaction of one judge email, and awarded fees; Steel appealed.
- The Nebraska Supreme Court affirmed, holding (1) statutory authorization to develop confidentiality rules is not an “express statute” that exempts records from the public-records definition absent adopted rules, and (2) the judicial deliberative-process privilege is narrow and did not cover the challenged JBE materials.
Issues
| Issue | Plaintiff's Argument (Veskrna) | Defendant's Argument (Steel) | Held |
|---|---|---|---|
| Are the requested JBE records "public records" under Neb. Rev. Stat. § 84-712.01? | The records are public and no statutory exemption applies. | Committee’s statutory authority to develop confidentiality rules and its unwritten policy mean the records are not "public records." | Held: Records are public. Statutory authorization to develop confidentiality rules, without adopted rules, does not exempt records. |
| Does separation of powers bar legislative/public-records coverage of JBE records? | N/A (Veskrna contended disclosure does not impair judicial functions). | Disclosure intrudes on the judiciary’s inherent administrative powers and would impair essential judicial functions. | Held: No undue interference here; disclosure of these materials did not meaningfully impair judicial functions. |
| Do JBE records fall within a judicial deliberative-process privilege? | Records are administrative, not deliberative; privilege does not apply. | JBE materials are intertwined with judges’ deliberations and thus protected. | Held: Privilege is narrow; protects judges’ mental impressions and communications about particular-case deliberations. These JBE records (exhibit 4) did not fall within the privilege. |
| Was the district court’s redaction of one judge email appropriate? | Veskrna did not challenge redaction on appeal. | Steel did not contest redaction as error on appeal. | Held: Affirmed; the single email contained content properly withheld under the deliberative privilege. |
Key Cases Cited
- State ex rel. Unger v. State, 293 Neb. 549 (Neb. 2016) (public-records remedy and standards)
- State v. Ellsworth, 61 Neb. 444 (Neb. 1901) (judicial records and mandamus principles)
- United States v. Nixon, 418 U.S. 683 (U.S. 1974) (limits on absolute privilege and requirement that privilege be narrowly construed)
- In re Enforcement of Subpoena, 463 Mass. 162 (Mass. 2012) (adoption and description of the judicial deliberations privilege)
- Moye v. National R.R. Passenger, 376 F.3d 1270 (11th Cir. 2004) (standard of review for deliberative-process privilege issues)