Supreme Court declines to block fees for state government records

A ruling by the Nebraska Supreme Court means that the state agency regulating environmental safety can lawfully charge a Nebraska news public tens of thousands of dollars for copies of public documents.

Shortly after the opinion was published, the Flatwater Free Press called the judge's opinion "a sad day for Nebraskan's right to know."

In the opinion authored by Judge William Cassel, the Court ruled that it was up to the Nebraska legislature to determine how much a state agency could charge for reviewing requests for public documents and providing copies.

"However sympathetic we might be to its policy arguments," Justice Cassel wrote, "that is not our role."

The opinion added, "It is the Legislature's function, through the enactment of statutes, to declare what the law and public policy of this state are."

The Supreme Court's action overturned an order by Lancaster County District Court Judge Ryan Post.

The case began in his Court with a lawsuit against the Department of Environment and Energy (NDEE) by the Flatwater Free Press, an online news publication. The reporters and editors challenged NDEE's estimate of $44,000 for reviewing and copying emails.

Judge Post ordered the state officials to provide a cost estimate for just providing copies without any charge for reviewing the contents. The Supreme Court ruling allows for the higher costs claimed by NDEE.

The documents were part of Flatwater's ongoing coverage of nitrate pollution in Nebraska's groundwater.

During court proceedings, the state justified the fees by claiming that its employees must take care to avoid releasing personal information or trade secrets.

Matt Wynn, Flatwater's executive editor, said in a phone interview that negotiations over the release of the materials had been conducted "in bad faith" by state officials.

"We just lost the power to watch the people in power," said executive editor Matt Wynn.

"When they give these estimates, I think they're giving us numbers to make us go away," Wynn said. "And when I say us, I mean citizens, not journalists."

The editors are weighing whether to pay the state for the public records.

The opinion determined the publication had the right to pursue the claim, which Nebraska Attorney General Mike Hilgers had challenged in its appeal to the Supreme Court.

The Attorney General had no comment on the Court's opinion.

Replying in an email, NDEE did not respond directly to the court’s opinion, but said the department “consistently complies with all requirements of the Nebraska public records statutes.”

Spokesperson Carla Felix added, “we stand ready to fulfill the Flatwater Free Press public records request or work with them on a narrowed request.”