As you know, the Nebraska Journalism Trust, the nonprofit parent of the Flatwater Free Press, is engaged in a legal fight over public records. We believe that Nebraskans have a right to know what their government is doing, or not, about urgent challenges in their communities. In this case, it’s nitrate in water. But the principles in this case apply equally to any public record on any important issue – the environment more broadly, criminal justice, education, campaign finance, housing, you name it.
I also believe in keeping you, one of our loyal donors who gives every month or year, well informed about our work. So let me bring you up to speed on Case No. 22-3926, Nebraska Journalism Trust v. Nebraska Department of Energy and its records custodian. To review:
In reporting for the “Our Dirty Water” series, we requested e-mails from the Department related to nitrate levels in drinking water. From April to October 2022, we went back and forth negotiating over the scope of the request. Over time, as our scope narrowed, the cost estimate ballooned – ultimately landing on $44,103.11.
State law permits charging fees for public records, but only for the “actual added cost of making copies available,” not for other purposes such as legal analyses.
We believe the $44,000 estimate clearly included costs that are not legally permissible. And we believe that such cost estimates are tantamount to withholding public records, since they are prohibitively expensive for any newsroom in Nebraska.
So in November 2022, represented by Omaha attorney Daniel Gutman, we filed suit in Lancaster County District Court against the Department and its records custodian. We asked the court to order the state to produce a new, legal cost estimate. You can read our brief here.
District Court Judge Ryan Post held a hearing February 2; you can read about that here.
On February 14, Judge Post issued his ruling, finding in our favor and ordering the records custodian to issue a new, legal cost estimate. You can read the decision here – and take pride in knowing that you, as a loyal donor, made this happen.
I’d also recommend this Lincoln Journal Star editorial supporting the decision.
Which brings us to today: The fight is not over. The state filed an appeal in February, and the case will be heard by an appellate court, hopefully sometime this summer. Without revealing too much about legal strategy, I can say that we feel confident about our argument and the strength and clarity of Judge Post’s order: “Summarized, Nebraska law requires the custodian shall provide an estimate of the expected cost of the copies and the fee shall not exceed the actual added cost of making the copies available. The duty is clear, and the statute is unambiguous.”
I can also say – again, thanks to your support – that we intend to see this through the appeals process, no matter how many more legal briefs or court appearances it requires. Because our job as journalists will not be complete until we have uncovered the truth.
With gratitude and in solidarity,
–Matt Wynn, Executive Director
