Nebraska Supreme Court rules state agencies can charge ‘special’ fees to review document requests

LINCOLN — The Nebraska Supreme Court ruled Friday that state agencies can impose a “special services charge” to review public records requests.

The 23-page ruling tends to affirm a $44,103 charge to a nonprofit news site, The Flatwater Free Press, to fulfill its request for public documents related to nitrate contamination of the state’s groundwater.

Flatwater maintained that the charge was excessive and not allowed by state public records law, an argument that Lancaster County District Judge Ryan Post agreed with.

‘Voluminous requests could be disruptive’

But the state appealed, and the Supreme Court ruled Friday that state public records laws recognized that “voluminous (records) requests could be disruptive to the public body.”

A “special service charge,” the court ruled, is allowed to cover the “existing salary or pay obligation” of state agencies’ employees after the first four hours of “searching, identifying, physically redacting, or copying.”

“However sympathetic we might be to (Flatwater’s) policy arguments,” the ruling stated, state law allows such fees to be charged.

Case ordered back to lower court

The court ordered the case back to Lancaster County District Court to determine whether the $44,103 fee conforms with the “special” fee allowance.

In a post Friday morning, Flatwater’s executive editor, Matthew Hansen, called the ruling “a blow to Nebraska’s public records law, a law written to protect media outlets like ours and Nebraskans like yourselves from the secrecy of those who hold power.”

“This clears the way for the State of Nebraska to charge us an ungodly amount of money to gain access to public records related to the state’s growing nitrate-in-groundwater problem,” Hansen wrote.

The Nebraska Attorney General’s Office, which argued the case for the state, declined to comment.

The case grew out of a public records request by Flatwater to the Nebraska Department of Environment and Energy for emails and other documents containing the words “nitrate,” “fertilizer” and “nutrient.”

Series on nitrate contamination

The news site has produced a series of stories on nitrate contamination of the state’s groundwater — and the adverse health effects — based on public records it has been able to obtain.

Included was a story concerning contamination near hog barns operated by the family of Gov. Jim Pillen,  a story the governor said should be discounted because the author was from “communist China” — a comment that sparked a firestorm of calls for an apology.

Other news media, including the Nebraska Examiner, also use information gleaned from record requests for reporting.

Initially, NDEE told Flatwater that fulfilling its records request would cost $2,000.

That led Flatwater to narrow its request, but also generated a new estimate from NDEE that it would require 927 hours of staff time at a cost of $44,103 to provide the records. Flatwater sued, calling the fee excessive and not allowed.

A key argument was whether a state agency, under the law, had a right to “review” records before they are released to determine if they are indeed public records and whether any portion needed to be redacted as not public.

‘Green light … for unreasonable fees’

The Supreme Court, in its ruling, said that such a “review” is allowed.

A spokesman for Media of Nebraska, which represents the state’s newspapers and broadcast media, said later Friday that organization looks forward to working with the Nebraska Legislature to change state law.

Dennis DeRossett, the executive director of the Nebraska Press Association, said the ruling “gives a green light to public agencies to charge unreasonable fees for access to records.”

“It is now up to the Nebraska Legislature to protect the public’s right to affordable access to public records,” DeRossett said.

Overall, Hansen, the Flatwater editor, called the ruling “a blow to the 10 words” that are etched into the north face of the State Capitol:  “The Salvation of the State is Watchfulness in the Citizen.”