Nebraska defends $44,000 cost for reporter's public records ask

Feb. 2, 2023, 6 p.m. ·

Trial underway in Nebraska Journalism Trust v Nebraska Dept of Environment & Energy
Trial in session in Flatwater Free Press trial asking for state environment records (Photo: Bill Kelly/NE Public Media)

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During a brief hearing Thursday, the publishers of the Flatwater Free Press asked the court to require the Nebraska Department of Environment and Energy (NDEE) to provide internal emails without charging tens of thousands of dollars for staff time to comply with the request.

Flatwater publisher Matt Wynn (right) answers questions posed by attorney Daniel Gutman. (Photo: Bill Kelly, Nebraska Public Media)

Flatwater publishes its news content online, with funding provided by grants and donors to the Nebraska Journalism Trust, a nonprofit organization. It began operations in 2021. It is the Trust suing the NDEE employee responsible for responding to the public records request.

Last year, the publication began investigating groundwater contamination in Nebraska and the response of state regulators and local officials.

"It's a heck of a story," Flatwater editor Matt Wynn told the court when called to testify.

Reporter Yanqi Xu filed an open records request for five and a half years worth of emails sent or received by NDEE staff and natural resources districts in Nebraska containing the words nitrate, nutrient, fertilizer, or nitrogen.

Chart displayed in court as evidence shows estimated employee hours.
A chart specifying staff time needed to review the documents request is displayed for the court. (Photo: Bill Kelly, Nebraska Public Media)

Responding to the request, the records manager with NDEE did not deny access to the records but warned the "request is quite broad and may be costly." The State argues having staff review the content is expensive, and the cost should be the responsibility of Flatwater or any other citizen making such a request.

As negotiations over the documents unfolded, Flatwater's editors were surprised to find the estimated costs inflated.

"As the requests got smaller and narrower, the cost estimates got bigger," Gutman told the court.

When the state replied with its estimate of $44,103.11, Flatwater went to court.

The news outlet argued the cost estimates made by the state are inflated with "unauthorized up-front services fees, effectively denying Flatwater's public records request."

A highlighted section of a legal brief filed by the Flatwater Free Press against NDEE
A section of the brief filed by Flatwater Free Press in support of obtaining requested public records.

Lawyers representing NDEE in court justified the amount. Assistant Attorney General Christopher Felts argued those reviewing the documents must take care to avoid releasing personal information or trade secrets. Those are allowable exceptions to open records requests.

"Just because something is responsive to a particular search term does not automatically make it a public record," said Assistant Attorney General Christopher Felts.

He also maintained the types of charges laid out in the estimate are allowable under state law. As evidence, he provided the judge with a transcript of a debate about the open records law on the floor of the legislature. Senators discussed what costs should be allowed.

Speaking for Flatwater Press, Gutman noted that the law does not specify costs for "reviewing" what can be released, only the staff time for redacting sensitive information and providing copies.

Flatwater told the judge it does not expect him to release the records free of charge since state law allows for reasonable fees.

Judge Ryan Post took the case under advisement and will rule later.