Matt Wynn (right), executive director of the Flatwater Free Press, listens as his lawyer Daniel Gutman speaks during a hearing in Lancaster County District Court earlier this month. The nonprofit sued the Nebraska Department of Environment and Energy in November, asking a judge to intervene in its fight over a $44,000 price tag from the state for five years of public records related to drinking water and nitrates. The judge ruled in Flatwater's favor.
JUSTIN WAN, Journal Star file photo
Ane McBride, a former records manager at Nebraska Department of Environment and Energy, speaks at Lancaster County District Court earlier this month.
JUSTIN WAN, Journal Star file photo
Matt Wynn, executive director of The Flatwater Free Press, speaks during a hearing in Lancaster County District Court earlier this month. The nonprofit sued the Nebraska Department of Environment and Energy in November, asking a judge to intervene in its fight over a $44,000 price tag from the state for five years of public records related to drinking water and nitrates.
A nonprofit news organization's fight over a $44,000 price tag from the state for five years of public records related to drinking water and nitrates made its way to a Lancaster County District Court courtroom Thursday.
The Flatwater Free Press sued the Nebraska Department of Environment and Energy in November, asking a judge to intervene.
If it's successful, the case has the potential to change how state agencies go about charging for public records.
On Thursday, attorney Dan Gutman, who represents the news nonprofit, said in 2022 it started investigating nitrates in the state's drinking water.Â
"A public records request was made on NDEE," he said, "and what happened next is what's supposed to happen."
The parties talked. The initial request, which had been broad and resulted in a $2,000 cost estimate, was narrowed to try to reach a lower cost, Gutman said.
"But, ultimately, the negotiations didn't work," he told Lancaster County District Judge Ryan Post at the bench trial. "As the requests got smaller and narrower, the cost estimates got bigger."
The records manager at NDEE ultimately said Flatwater would need a deposit of $44,103.11 before the state would start the search.
Gutman said what became clear was that NDEE was charging for what wasn't specifically authorized by the Public Records Act: the reviewing and withholding of documents under statutory exceptions to disclosure.Â
"We think it is very clear that withholding documents is not 'providing them.' Withholding documents is not 'making copies available,'" he said.
And Nebraska is an open records state that values open records, Gutman said.
Assistant Nebraska Attorney General Christopher Felts, who represents NDEE, said all of this really is about a single legal question. Whether a public body can charge for non-attorney time to review records.
"And we believe the statute is clear on its face that you can," he said.
Felts said the statute, 84-712.03, permits an agency to charge after the first four hours of time spent "searching, identifying, physically redacting or copying," so long as it isn't for an attorney's time, which is specifically excluded.
He said Ane McBride, the records manager for the NDEE, provided a legally accurate cost estimate, and Flatwater chose not to go forward with the request.Â
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"So we would also point out there has been no actual denial of access to public records in this case," Felts said.
On the stand, Matt Wynn, executive director of The Flatwater Free Press, was asked if it still want the records.
"Absolutely," he said. "This story remains a story."
McBride, who no longer works for NDEE, testified that it would take several hundred hours of time collectively by agency employees to comply with the request, which asked for emails and attachments sent or received by NDEE staff in particular divisions containing the keywords "nitrate," nutrient," "fertilizer" or "nitrogen."
In the end, Post asked Felts if someone requested a copy of every email that used the phrase "Happy birthday," and the state's Office of the Chief Information Officer ran a computer search and identified the records, "What is there to review at that point?"
Felts said every email isn't automatically a public record. The Public Records Act provides exceptions, as do other statutes of Nebraska law. He said the process involves a review to make sure things that aren't public records or that need to be redacted would be taken out.
"You keep talking about a review, which makes sense that a review would happen. But the Legislature didn't put 'review' in the statute," Post said.
Felts said debate on the bill in 2013 made it clear that was the intent.
But Gutman countered the state has to point to text that authorizes it to charge for it.
Matt Wynn (right), executive director of the Flatwater Free Press, listens as his lawyer Daniel Gutman speaks during a hearing in Lancaster County District Court earlier this month. The nonprofit sued the Nebraska Department of Environment and Energy in November, asking a judge to intervene in its fight over a $44,000 price tag from the state for five years of public records related to drinking water and nitrates. The judge ruled in Flatwater's favor.
Matt Wynn, executive director of The Flatwater Free Press, speaks during a hearing in Lancaster County District Court earlier this month. The nonprofit sued the Nebraska Department of Environment and Energy in November, asking a judge to intervene in its fight over a $44,000 price tag from the state for five years of public records related to drinking water and nitrates.