The Nebraska Supreme Court on Friday ruled in favor of a state government agency that sought to charge a news organization nearly $45,000 for public records on water pollution, leading to concerns that exorbitant fees could be used to keep information from the public. The high court found that state law allows special fees to comply with records requests that take more than four hours to compile, the AP reports. Matthew Hansen, editor of the nonprofit news provider Flatwater Free Press at the center of the case, panned the ruling—issued during Sunshine Week, which marks the importance of public access to government information—in an editorial.
"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. "This decision is 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." Jane Kirtley, of the Silha Center for the Study of Media Ethics and Law at the University of Minnesota, cautioned that access to public records is essential for an informed citizenry. A nationwide review of procedures by the AP and CNHI News revealed a patchwork of complicated systems for resolving open government disputes that often put the burden of enforcing transparency laws on private citizens.
Flatwater had sued to obtain records from the state Department of Environment and Energy regarding groundwater pollution. According to court records, an agency manager initially estimated the cost at $2,000 to carry out a broad request seeking all emails mentioning "nitrate," "fertilizer," and other keywords over a 12-year period. Flatwater then narrowed its request to emails containing those words among a handful of natural resource districts over a nearly six-year period, per the AP. The agency manager then estimated the cost of producing those records at more than $44,000, based on an hourly rate for 102 employees to search, analyze, and save emails, as well as the hours it would take to review the emails to see if they should be excluded as confidential.
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A district court judge sided with Flatwater, saying state law only allows fees to be charged for physically redacting emails, not reviewing them to see whether they can legally be withheld. The agency appealed, and Nebraska's high court reversed the ruling. It relied on the long-standing precedent that appeals courts must follow the plain language of law, not reading anything into or out of wording to infer the Legislature's intent. The high court found the law explicitly allows a special service charge for "searching, identifying, physically redacting, or copying" the public information requested if it take more than four hours. Flatwater attorney Daniel Gutman said the agency got around the prohibition on charging for legal review to determine whether files can be withheld by having its employees—not attorneys—go through the records.
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