This story originally was published by the Nebraska Examiner and is being republished by the Flatwater Free Press.
LINCOLN — As Nebraska moves forward with converting a McCook state prison into an ICE detention center, concerns grow about the Governor’s Office stonewalling public requests seeking more about what is going on.
By late September, Gov. Jim Pillen’s office had denied at least nine public records requests asking for information about the state’s negotiations with the federal government regarding the McCook Work Ethic Camp, records obtained by the Nebraska Examiner indicate. Additionally, there’s evidence that broader requests on the subject have also been denied, although some state agencies, including the prison system, have released some records.
These denials raised the eyebrows of local activists and legal experts who say they are suspicious that potentially thousands of public records could be withheld under the governor’s justifications. Though there is little evidence of wrongdoing, the lack of information on a subject that involves a state prison and state funds makes some believe the state has something to hide.
“Whether or not they file an open records request, people are calling out for this information and are entitled to understand what their government is doing in their name,” said Jennifer Houlden, acting legal director for the American Civil Liberties Union of Nebraska. “The interest in obscuring that information completely … is really suspect, and the motivation for that needs to be questioned.”
Meanwhile, Nebraska is well underway in transitioning the McCook property into a jail that holds migrant detainees for the U.S. Department of Homeland Security’s Immigration and Customs Enforcement. A spokesperson for the Nebraska Department of Correctional Services said just over 60 of the 180 men the camp typically holds remained housed there as of Oct. 8.
Charlie McPherson, executive director with the McCook Economic Development Corp., said his team is “keeping eyes and ears open for more information,” and hasn’t gotten any fresh info from the city or state. “Just sitting tight.” He said driving by the camp, he noticed fencing work being done.
Talks between state officials and the U.S. Department of Homeland Security about the Work Ethic Camp have been ongoing since at least late March, according to documents the government watchdog group Common Cause Nebraska acquired from the Department of Corrections.
News of the plan broke in late August. In early September, Pillen administration staffers revealed in a closed-door briefing that state officials initiated conversations with the federal government regarding the possibility of helping ICE.
At the time, State Sen. Wendy DeBoer of Bennington said she was told state leaders expect a written agreement between Nebraska and the federal government to be completed within 60 days.
Though it’s still within the 60-day window, State Sen. Terrell McKinney of Omaha said he has heard from several sources that the state has already signed the contract and is waiting for a federal response. There has been no official confirmation as yet. Homeland Security operations continue during a government shutdown that could limit some ICE actions.
The Nebraska Examiner filed a public records request of its own Sept. 5 for communications between Pillen, his staff, and Homeland Security officials about the deal. The Governor’s Office responded to the request Sept. 18, well past the four-day deadline laid out in statute for how long state agencies have to respond.
In its response, the office denied the request based on four justifications:
- The documents requested constitute “proprietary or commercial information.”
- The documents requested constitute “negotiation records for the lease or sale of an interest in real property.”
- The documents requested constitute “confidential communications.”
- Cited a statute outlining the rules for lawyer-client privilege.
The Examiner sent a follow-up request on Sept. 22 seeking how the Governor’s Office responded to related requests from others. The office requested an extension and fulfilled the request on Oct. 8.
The state’s response revealed nine records requests made about Work Ethic Camp negotiations between Aug. 21 to Sept. 5, including the Examiner’s. All were denied, and seven of the nine were denied with virtually identical reasonings — those listed above. The requests were made by a range of individuals, including reporters, private citizens and State Sen. Megan Hunt of Omaha.
The Flatwater Free Press also was among the media outlets that requested information, including emails and written communications from the Governor’s Office related to “ICE,” “detention,” “Noem” and “Alligator Alcatraz” and emails between state corrections officials and the federal government. The office sent back emails between the governor’s spokesperson and other reporters. Flatwater also asked corrections officials for copies of any contracts related to the ICE detention facility. The request was denied, and a records custodian didn’t acknowledge that any contracts even existed.
to become a detention center for migrants facing federal deportation proceedings.
Photo by Cindy Gonzalez/Nebraska Examiner
The state’s justifications for denying the requests for information are questionable, according to multiple legal experts who spoke with the Examiner, including Houlden and Daniel Gutman, a lawyer who has litigated several public records disputes. Houlden said she believes the exceptions government agencies are granted under law are being applied more broadly than they ought to be.
“(The Governor’s Office) tends to blur lines when it comes to interpretations,” said Gavin Geis, executive director of Common Cause Nebraska.
Geis argued that the first two justifications treat the dealings between two public bodies — the Nebraska state government and the federal government — as though both are private businesses. Houlden noted the exact language of one of the cited statutes grants an exception for records that would “give advantage to business competitors and serve no public purpose” if they were made public, which makes her believe that the exception should not apply.
Houlden said the second justification contradicts previous public statements state officials have made that Nebraska will continue to own and operate the McCook facility.
Both Houlden and Gutman said the exceptions allowing government agencies to withhold public records are meant to be narrowly interpreted. Though Gutman said this isn’t a legally binding principle, there is a legal obligation for state officials to “understand and apply the exceptions in light of a broader public policy that favors disclosure.”
The Governor’s Office declined an interview for this story but sent a written statement.
“The Governor’s Office has responded to all record requests submitted about WEC and its transition to becoming a federal detention center,” Pillen spokesperson Laura Strimple wrote. “The process followed was the same as for any record request. Records have been provided to each requestor within the scope of law, which also allows for withholding information that meets specific exceptions.”
Gutman equated questionable public records responses to “the chicken or the egg” paradox, because while there is cause to suspect the Governor’s Office is withholding records that should be public, there is no way to know for certain without seeing the records being withheld.
There are legitimate reasons to withhold government records, Gutman said. The question is: Do those reasons apply to the potentially thousands of records that pertain to the WEC negotiations? Gutman said he thinks that’s unlikely.
Nebraska law treats most public documents as public records. According to the Attorney General’s Office, exceptions to the state’s public records statutes include personal information about students, medical records other than about births or deaths, trade secrets, investigatory records, vulnerabilities involving public property, firearms registration information and cybersecurity information.
A common obstacle that dissatisfied records requesters face: There is little to no recourse when they believe public records law has been violated. The main option is suing in Lancaster District Court, which Gutman said at best can take two to three months to resolve, or longer if the state appeals.
The state also recommends requesters petition the Attorney General’s Office for a review if they believe an error was made in their response.
In comparison to other states, Gutman said Nebraska has far fewer lawsuits challenging public records requests.
State Sen. Machaela Cavanaugh of Omaha, a vocal critic of the governor and state agencies, said she believes Pillen’s office is banking on the assumption that most people won’t take them to court.
Cavanaugh acknowledged that hesitation over public records requests is not a problem specific to Pillen’s administration but argued it has gotten worse since he took office. Former governor turned U.S. Sen. Pete Ricketts, R-Neb., didn’t make the process easy, but he returned requests and allowed room for negotiations, she said.
When reached by the Examiner, McCook City Council members said they agreed to direct all questions on the McCook conversion to Molly Smith, a city spokesperson who did not return calls. McCook Mayor Linda Taylor also did not return calls.
State Sen. Dave Murman, whose legislative district includes McCook, said he had no fresh update. He supports the project and President Donald Trump’s efforts to secure the border, he said, and believes many of his constituents do also.
Cavanaugh, along with fellow Appropriations Committee member State Sen. Ashlei Spivey of Omaha, requested that the committee hold a public briefing to better understand the transition process and its financial implications for the state. They were denied by committee chair State Sen. Rob Clements of Elmwood, who said there will be opportunity to discuss the topic when the Legislature reconvenes in January.
Judiciary Committee Chair State Sen. Carolyn Bosn of Lincoln also has denied requests for public hearings about the Work Ethic Camp.
The Urban Affairs Committee, chaired by McKinney, held a public hearing in September at the Capitol, which drew a large enough crowd that it required an overflow area. This is part of the “far-reaching consequences” Geis said come with withholding information on matters of high public interest. It limits the opportunities for voters to make informed decisions.
On the flip side, he said, it also keeps voters in the dark about good decisions their government is making. In this way, Geis argued Pillen could benefit from being more forthcoming.
“When they close the door, we can only assume that what’s happening back there is not to our benefit,” Geis said.
Nebraska Examiner Senior Reporter Cindy Gonzalez contributed to this report.
