NEBRASKA JOURNALISM TRUST, DOING BUSINESS AS THE FLATWATER FREE PRESS, APPELLEE, V. NEBRASKA DEPARTMENT OF ENVIRONMENT AND ENERGY AND SHAWNNA LARA, IN HER OFFICIAL CAPACITY AS RECORDS MANAGER FOR THE NEBRASKA DEPARTMENT OF ENVIRONMENT AND ENERGY, APPELLANTS.
No. S-23-155
Nebraska Supreme Court
March 15, 2024
316 Neb. 174
- Actions: Mandamus. An action for a writ of mandamus is a law action.
- Judgments: Appeal and Error. In a bench trial of a law action, the trial court‘s factual findings have the effect of a jury verdict, and an appellate court will not disturb those findings unless they are clearly erroneous.
- Judgments: Statutes: Appeal and Error. Questions of law and statutory interpretation require an appellate court to reach a conclusion independent of the decision made by the court below.
- Mandamus: Statutes. Where a writ of mandamus is specifically provided as a remedy by special statute, the general rules for a mandamus action, which conflict with the special statute, do not apply.
- Statutes. It is not within the province of a court to read a meaning into a statute that is not warranted by the language; neither is it within the province of a court to read anything plain, direct, or unambiguous out of a statute.
- Mandamus: Records: Fees. A requester of public records who is provided with a fee estimate that contains charges unauthorized by
Neb. Rev. Stat. § 84-712 (Reissue 2014) may file for speedy relief by a writ of mandamus. - Mandamus: Proof: Fees. A party seeking a writ of mandamus under
Neb. Rev. Stat. § 84-712.03 (Cum. Supp. 2022) regarding the denial or content of a fee estimate has the burden to satisfy three elements: (1) The requesting party is a citizen of the state or other person interested in the examination of the public records, (2) the requesting party sought to obtain a copy of a public record as defined byNeb. Rev. Stat. § 84-712.01 (Reissue 2014) , and (3) the requesting party was denied a fee estimate or was provided with a fee estimate that includes a fee the requesting party asserts is unauthorized byNeb. Rev. Stat. § 84-712(3) (Reissue 2014) . Thereafter, if the public body holding the record wishes to oppose the issuance of a writ of mandamus, the public body must show, by clear and conclusive evidence, that the fees charged are authorized by§ 84-712(3) . - Legislature: Statutes: Intent: Records. In enacting the public records statutes, the Legislature has determined that the welfare of the people is best served through liberal public disclosure of the records of the three branches of government.
- Statutes: Records. The overall purpose of the public records statutes is to empower and authorize interested persons to examine public records.
- Statutes: Legislature: Intent. The fundamental objective of statutory interpretation is to ascertain and carry out the Legislature‘s intent.
- Statutes: Appeal and Error. Statutory language must be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.
- Records: Fees. In fulfilling a public records request, a public body may not charge a fee for the first 4 cumulative hours of time its staff members spend searching, identifying, physically redacting, or copying.
- Statutes: Appeal and Error. To give effect to all parts of a statute, an appellate court will attempt to reconcile different provisions so they are consistent, harmonious, and sensible, and will avoid rejecting as superfluous or meaningless any word, clause, or sentence.
- Records: Fees: Attorneys at Law. In fulfilling a public records request, a public body may not charge a fee for an attorney‘s services to review the requested records for a legal basis to withhold them.
- Statutes: Intent. A court must look at the statutory objective to be accomplished, the problem to be remedied, or the purpose to be served, and then place on the statute a reasonable construction which best achieves the purpose of the statute, rather than a construction defeating the statutory purpose.
- Statutes: Courts: Legislature: Public Policy. A court‘s proper role is to interpret statutes and clarify their meaning, and it is the Legislature‘s function through the enactment of statutes to declare what is the law and public policy of this state.
- Records: Fees. The plain language of
Neb. Rev. Stat. § 84-712 (Reissue 2014) permits a public body to charge a fee for time spent by nonattorney employees, in excess of 4 cumulative hours, reviewing requested public records for a statutory basis to withhold one or more of the records in whole or in part.
Michael T. Hilgers, Attorney General, Eric J. Hamilton, and Christian Edmonds for appellants.
Daniel J. Gutman, of Law Office of Daniel Gutman, L.L.C., for appellee.
Derek A. Aldridge, of Perry, Guthery, Haase & Gessford, P.C., L.L.O., for amici curiae League of Nebraska Municipalities et al.
Marnie A. Jensen, Alexa B. Barton, and Aubrey Wells, of Husch Blackwell, L.L.P., for amicus curiae The Goldwater Institute.
Brian J. Fahey, of Fraser Stryker, P.C., L.L.O., for amici curiae Reporters Committee for Freedom of the Press et al.
HEAVICAN, C.J., CASSEL, STACY, FUNKE, PAPIK, and FREUDENBERG, JJ.
CASSEL, J.
I. INTRODUCTION
This appeal presents two novel questions regarding the use of
II. BACKGROUND
1. PUBLIC RECORDS REQUESTS AND RESPONSES
Nebraska Journalism Trust, doing business as The Flatwater Free Press (Flatwater), is a Nebraska nonprofit organization focused on investigations and feature stories. This appeal involves its requests for public records from the Nebraska Department of Environment and Energy (agency) and its records manager (manager) (collectively NDEE).
Initially, Flatwater requested such emails “with all natural resources districts” over a 12-year period. The manager cautioned that the request was “quite broad and may be costly” and worked with Flatwater to narrow the scope of the request. Flatwater shortened the timeframe by almost 7 years. The manager estimated the cost to be $2,000, explaining:
Searching email is a manual process, so while narrowing the timeframe may reduce the estimate by some, it still involves over 200 people who will perform four separate searches, review search results to ensure the record is responsive to the request and determine whether there is any basis or requirement to keep certain records, or portions of records, confidential under the appropriate Nebraska statutes. Pertinent records will then have to be provided to Records Management to be compiled and presented to [Flatwater].
Flatwater then transmitted an updated public records request to NDEE. In an effort to “make the search a little
The manager responded with an estimate of the total actual cost of providing the copies. She stated, “[W]hen we receive a check in the amount of $44,103.11, we will begin our search for the requested records.” The cost estimate included a breakdown of the number of agency staff in each position, the hourly rate of each, and the estimated number of hours per employee. The estimate showed a cost of thousands of dollars for 102 employees to search, analyze, and save emails with the four keywords. Then, it approximated that a records supervisor would spend 12 hours reviewing those emails to ensure the email was responsive to the request, to determine whether there was a basis to keep the email confidential, and to prepare a flash drive with copies of pertinent emails.
The parties communicated several times as Flatwater tried to negotiate a lower cost estimate. The manager informed Flatwater that she asked four employees to search their emails for the term “nitrate,” which resulted in responsive emails of 42, 48, 996, and 1,070. Although the Office of the Chief Information Officer (OCIO) could perform the search and provide NDEE with emails containing the keywords, the manager cautioned that “each message must be reviewed by the individual employee before it is provided to [Flatwater].” The manager subsequently informed Flatwater that because “our staff will need to review their own email to determine which email messages are public records pursuant to . . .
2. PETITION FOR PUBLIC RECORDS WRIT OF MANDAMUS
Pursuant to
The district court issued an alternative writ of mandamus. It ordered NDEE either to provide a cost estimate to Flatwater in compliance with
NDEE submitted a certificate of verification in response. First, the agency asserted that it was entitled to sovereign
3. TRIAL
The court received testimonial and documentary evidence at trial. The evidence included the communications between Flatwater and the manager discussed above. The former manager testified about the search process to fulfill the request. She explained: “The employee would have to go to search their email and then the results of the nitrates for instance or nutrient. They would have to read all of the emails that came up as hits to that key word to be sure that it was responsive to the request.” Further, NDEE “needed to make sure there were no trade secrets that were being exposed, and attorney[-]client privilege documents.”
4. ORDER
In the court‘s written order, it first determined that the agency was shielded by sovereign immunity and denied Flatwater‘s request for a writ as to the agency. It next determined that Flatwater could pursue a writ of mandamus against the manager, rejecting NDEE‘s argument that mandamus was improper because other remedies were available.
Turning to the estimate of the expected cost of the copies, the court construed
Ultimately, the court‘s order granted Flatwater‘s request for a writ of mandamus for the manager to provide an estimate of the expected cost of the copies under
NDEE appealed, and we granted its petition to bypass review by the Nebraska Court of Appeals.2
III. ASSIGNMENTS OF ERROR
NDEE assigns that the district court erred in concluding (1) that mandamus is a proper action for a challenge to a fee estimate and (2) that fees for time spent reviewing documents are not authorized.
IV. STANDARD OF REVIEW
[1-3] An action for a writ of mandamus is a law action.3 In a bench trial of a law action, the trial court‘s factual findings have the effect of a jury verdict, and an
V. ANALYSIS
1. MANDAMUS
NDEE argues that mandamus is unavailable to challenge a fee estimate regarding a public records request. We have not previously considered this specific question.
But we have generally addressed the availability of mandamus in connection with a public records request. In State ex rel. Adams Cty. Historical Soc. v. Kinyoun,6 a case not cited by the parties, we considered the traditional rules of mandamus actions, recognized the scope of relief conferred by a public records statute, and rejected arguments similar to those advanced here.
In that case, we observed that traditionally, mandamus was a law action and was defined as an extraordinary remedy, not a writ of right, issued to compel the performance of a purely ministerial act or duty, imposed by law upon an inferior tribunal, corporation, board, or person, where (1) the relator has a clear right to the relief sought, (2) there is a corresponding clear duty existing on the part of the respondent to perform the act, and (3) there is no other plain and adequate remedy available in the ordinary course of law.
But we then stated that Nebraska‘s public records statutes provided the appropriate relief if a request for public records is denied, which relief included either filing for a writ of mandamus in the district court or petitioning the Attorney General to review the matter.7 We observed that in any suit filed under the public records statutes,
Next, we rejected the records custodian‘s arguments relying upon traditional rules of mandamus. The custodian asserted that release of the information was not purely ministerial, that the requesting party had no clear right to the information requested, that the custodian had no duty to release the names, and that the requesting party had other remedies available. But we relied upon the plain language of
We have followed that approach more recently. For example, we declared that “a person who has been denied access to a public record may file for a writ of mandamus under
[4] We conclude that where a writ of mandamus is specifically provided as a remedy by special statute, the general rules for a mandamus action, which conflict with the special statute, do not apply. Other
Here, NDEE asserts that in order to challenge the fee estimate in this public records request, Flatwater needed to petition the Attorney General or to bring a declaratory judgment action and seek equitable relief. Flatwater responds that mandamus relief is expressly authorized by statute. Both parties rely on the language of
In
Any person denied any rights granted by sections
84-712 to84-712.03 may elect to:(a) File for speedy relief by a writ of mandamus in the district court within whose jurisdiction the state, county, or political subdivision officer who has custody of the public record can be served; or
(b) Petition the Attorney General to review the matter to determine whether a record may be withheld from public inspection or whether the public body that is custodian of such record has otherwise failed to comply
with such sections, including whether the fees estimated or charged by the custodian are actual added costs or special service charges as provided under section
84-712 . This determination shall be made within fifteen calendar days after the submission of the petition. If the Attorney General determines that the record may not be withheld or that the public body is otherwise not in compliance, the public body shall be ordered to disclose the record immediately or otherwise comply. If the public body continues to withhold the record or remain in noncompliance, the person seeking disclosure or compliance may (i) bring suit in the trial court of general jurisdiction or (ii) demand in writing that the Attorney General bring suit in the name of the state in the trial court of general jurisdiction for the same purpose. If such demand is made, the Attorney General shall bring suit within fifteen calendar days after its receipt. The requester shall have an absolute right to intervene as a full party in the suit at any time.
[5] The plain language of
Historically, mandamus was the only remedy provided by the public records statutes to seek redress for a denial of access to public records.13 In 1979, the Legislature added the option to petition
Drawing on the denial of rights component of
[6] Among the rights granted in
We have previously set forth the burden for a party seeking a writ of mandamus in a public records dispute regarding the denial of access to public records.17 But we have not articulated the burden for a party seeking a writ of mandamus in a public records dispute regarding the denial or content of a fee estimate.
When we first established the burden for a party seeking a writ of mandamus concerning the denial of access to public records, we recognized that
[7] We now hold that a party seeking a writ of mandamus under
There is no dispute that Flatwater satisfied its initial burden. But whether NDEE then satisfied its burden depends upon the correct interpretation of
NDEE‘s argument that mandamus is unavailable to challenge a fee estimate alleged to include unauthorized charges lacks merit. We affirm that portion of the district court‘s order allowing Flatwater to pursue a remedy through mandamus. And because Flatwater has not challenged the court‘s determination that the agency was shielded by sovereign immunity, we likewise affirm the denial of Flatwater‘s request for a writ as to the agency.
2. FEES FOR DOCUMENT REVIEW TIME
The key question is whether a public agency, in fulfilling a public records request, may charge for time spent by nonattorney staff to review the requested records prior to disclosure. Before resolving the issue, we start with an overview concerning public records and a discussion of statutory provisions concerning fees.
(a) Public Records Overview
[8,9] In enacting the public records statutes, the Legislature has determined that the welfare of the people is best served through liberal public disclosure of the records of the three branches of government.21 The overall purpose of the public records statutes is to empower and authorize interested persons to examine public records.22
With one important exception, the Legislature defined public records to include “all records and documents, regardless of physical form, of or belonging to this state, any county, city, village, political subdivision, or tax-supported district in this state, or any agency, branch, department, board, bureau,
commission, council, subunit, or committee of any of the foregoing.”23
The Legislature recognized that not every governmental record should be viewable by the public. It provided that records and documents are not public records “when any other statute expressly provides that particular information or records shall not be made public.”24 Outside of the public records statutes, Nebraska laws too numerous to cite either explicitly declare that certain records are not public records subject to disclosure under the public records statutes or expressly make particular information confidential.
The Legislature set forth procedures for accessing public records. It generally provided that interested persons can examine public records during the public body‘s ordinary business hours for free.25 And if they bring their own copying or photocopying equipment, interested persons can make their own copies of the records free of charge.26 Another way to procure public records is to submit a written request to
(b) Fees
Section
that “[e]xcept as otherwise provided by statute, [the] fee shall not exceed the actual added cost of making the copies available.”30
Section
shall include the reasonably calculated actual added cost of the computer run time, any necessary analysis and programming by the public body, public entity, public official, or third-party information technology services company contracted to provide computer services to the public body, public entity, or public official, and the production of the report in the form furnished to the requester.34
Building on
The actual added cost used as the basis for the calculation of a fee for records shall not include any charge
for the existing salary or pay obligation to the public officers or employees with respect to the first four cumulative hours of searching, identifying, physically redacting, or copying. A special service charge reflecting the calculated labor cost may be included in the fee for time required in excess of four cumulative hours, since that large a request may cause some delay or disruption of the other responsibilities of the custodian‘s office, except that the fee for records shall not include any charge for the services of an attorney to review the requested public records seeking a legal basis to withhold the public records from the public.35
The statutory language evinces the Legislature‘s attempt to balance the public‘s interest in the right of access to public records with the public body‘s interest in not being unduly burdened in providing such access. The Legislature specified no
(c) Nonattorney Review Time
With this background, we turn to NDEE‘s fee estimate of over $44,000, primarily for time spent by nonattorney staff to review requested records. Whether such costs are allowed is a matter of statutory interpretation.
[10,11] The fundamental objective of statutory interpretation is to ascertain and carry out the Legislature‘s intent.36 Statutory language must be given its plain and ordinary meaning, and an appellate court will not resort to interpretation
to ascertain the meaning of statutory words which are plain, direct, and unambiguous.37
No party has argued that
[12] The statutory language is clear that in fulfilling a public records request, a public body may not charge a fee for the first 4 cumulative hours of time its staff members spend searching, identifying, physically redacting, or copying.40 From this language, it necessarily follows that such a fee may be charged for time exceeding 4 hours spent searching, identifying, physically redacting, or copying.
[13] Section
sentence addressing the first 4 cumulative hours of “searching, identifying, physically redacting, or copying”42—the special service charge includes costs for the existing salary or pay obligation to public officers or employees after the first 4 cumulative hours of searching, identifying, physically redacting, or copying.
[14] The statutory language is also clear that in fulfilling a public records request, a public body may not charge a fee for an attorney‘s services to review the
[15] A court must look at the statutory objective to be accomplished, the problem to be remedied, or the purpose to be served, and then place on the statute a reasonable construction which best achieves the purpose of the statute, rather than a construction defeating the statutory purpose.44 Section
Flatwater argues that just as a court cannot read words out of a statute, it cannot read the word “reviewing” into the activities specified in
At oral arguments, NDEE highlighted that a statute48 made certain of its records confidential. This statute applies to “[a]ny records or other information . . . concerning . . . air, water, or land contaminant sources, which records or information . . . relate to methods or processes entitled to protection as trade secrets . . . .”49 Such records or information are excepted from the definition of public records in
To the extent review is needed to ensure that the public record is responsive to the request or that portions of the record are not exempt from disclosure, the review is part of the “actual added cost used as the basis for the calculation of a fee for records.”50 As NDEE noted, the Virginia Supreme Court reached a similar conclusion in agreeing with the trial
court that review is inherent in the process of “‘“‘assessing, duplicating, supplying, or searching for the requested records‘“‘” and in concluding that in the context of its public
We also find it significant that the Legislature included the prohibition on charging for the services of an attorney in the same sentence as the authorization for a special service charge reflecting the calculated labor cost. If Flatwater‘s contention were correct—i.e., that by using the words “searching, identifying, physically redacting, or copying,” the Legislature did not intend to allow agencies to charge a fee for time spent reviewing documents for a legal basis to withhold them—this provision would have been unnecessary. Applying the principles of statutory interpretation, we cannot accept Flatwater‘s construction.
Our conclusion that “reviewing” is implicit in determining what may be disclosed as a public record is buttressed by other provisions. Section
[16] Flatwater effectively urges that once a computer search is run for an email containing a specified word, it is entitled to receive a copy of that email without any examination whatsoever, or at least, as a matter of policy, the cost of examining flagged emails should be borne by the public and not by the requesting party. However sympathetic we might be to its policy arguments, that is not our role. A court‘s proper role is to interpret statutes and clarify their meaning, and it is the Legislature‘s function through the enactment of statutes to declare what is the law and public policy of this state.52
[17] Applying well-known rules of statutory interpretation and construction, we conclude that the plain language of
We conclude that the district court erred in its statutory interpretation of “special service charge.” Because of that error, the court could not correctly determine whether the fee estimate included any charges unauthorized by
VI. CONCLUSION
We affirm those portions of the district court‘s order finding statutory authorization to challenge an estimated fee via mandamus and quashing the petition as against the agency. With regard to the estimated fee here, the question before us is not what we think the policy should be,
cumulative hours, reviewing requested public records for a statutory basis to withhold one or more of the records in whole or in part. We vacate the district court‘s writ of mandamus and its order awarding attorney fees and costs, and remand the cause for further proceedings in conformity with this opinion.
AFFIRMED IN PART, AND IN PART VACATED AND REMANDED FOR FURTHER PROCEEDINGS.
MILLER-LERMAN, J., not participating.