Nebraska Journalism Trust v. Nebraska Department of Environment and Energy

Court: Nebraska Supreme Court

Date Filed: Jan. 5, 2024

Background: In April 2022, Flatwater Free Press reporter Yanqi Xu submitted a public records request to the Nebraska Department of Environment and Energy seeking staff communications containing the words “nitrate,” “nutrient,” “fertilizer,” or “nitrogen” over the course of a roughly 12-year period.

After Xu narrowed the request following discussions with the department, the public records custodian told the journalist that the request would likely cost more than $44,000 to process. As the public records custodian explained, the estimate included the time it would take an agency employee to “determine whether there is any basis or requirement to keep certain records, or portions of records, confidential under the appropriate Nebraska statutes.”

The Flatwater Free Press, a nonprofit investigative newsroom, sued NDEE, asking the District Court of Lancaster County, Nebraska, to order the agency to comply with the state’s public records statute, which allows agencies to charge for the costs associated with making copies of records but does not provide for review fees. In February 2023, the district court granted the news outlet’s request, concluding that NDEE could not charge the Flatwater Free Press for time spent conducting a legal review of the requested records.

The agency appealed, and the Nebraska Supreme Court accepted immediate review.

Our Position: The Nebraska Supreme Court should affirm the decision of the district court and join many other state high courts in rejecting broad interpretations of what fees an agency may charge those seeking access to public records.

• NDEE’s sweeping interpretation of permissible fees, if accepted, would stymie journalism in the public interest.
• Other states have interpreted similar fee provisions in their respective public records laws in favor of access to records, and therefore transparency; in well-reasoned decisions, they have rejected efforts to read into their statutes fees that the legislature did not expressly allow.

Quote: “Under the expansive, unsupported reading urged by NDEE, an agency facing scrutiny could simply condition records access on payment of exorbitant fees, placing those records beyond the financial reach of journalists and the public. Such a result would be antithetical to the spirit and purpose of the public records statutes and would threaten Nebraskans’ access to essential information about their government.”

Update: On March 28, 2024, the Nebraska Supreme Court held that state agencies can charge fees to members of the press and public for the time it takes non-attorney staff to review records for legal reasons to shield them from disclosure, concluding that it was the legislature’s intent to allow such fees. Shortly after the court’s ruling, however, Nebraska lawmakers passed — and the governor signed — a bill that, among other things, prohibits state agencies from imposing fees for non-attorney employees to conduct legal review of public records.