We’re headed to the Supreme Court to fight for the public’s right to know. Here’s why, and how you can tune in.

At long last, we have our date in (Supreme) Court.

On Feb. 8, the Nebraska Journalism Trust and Flatwater Free Press head to Lincoln to argue that the state kept information from you, the public, by illegally attempting to charge for public records.

I’ve written before about the facts of the case. As Flatwater reporter Yanqi Xu worked on this project, about nitrate seeping into our drinking water, she requested emails related to nitrate from the state’s environmental agency. The state said the records would cost around $2,000. We negotiated. The price went up. We negotiated more. The price went higher — all the way to $44,103.11.

We decided to fight this in court. We fought because we knew that if the $44,103.11 bill stood, it would allow the state – and any public body – to charge whatever exorbitant amount it pleased while attempting to keep public records shielded from public view. Put more simply, we knew that if this bill stood, it would irreparably damage Nebraska’s public records law.  

Almost a year ago, in Lancaster County District Court, we won. Judge Ryan Post wrote that the state’s interpretation of the law could easily be abused. That, if correct, “…there would be few limits on what may be included in the fee.”

The state appealed that decision. It wasted time and spent God knows how much continuing to fight the case.

So next week, we’ll head to the Nebraska Supreme Court to talk about it again. I’ll be there in person. You can watch it live thanks to Nebraska Public Media. While we don’t know the exact time of the hearing, we are the fifth case of the day, which probably puts us sometime in the morning.

Once again, we’ll be ably represented by Daniel Gutman, who tried the case in district court. This time, he’ll have a posse.

Thanks to our sponsor

I couldn’t be more proud to have the Reporters Committee for Freedom of the Press and the Goldwater Institute at our backs. Each graciously volunteered their expertise in the form of an amicus brief. 

RCFP is routinely at the forefront of public records issues, arguing for journalists’ ability — and by extension, the public’s — to hold government accountable.

The Goldwater Institute has a long history fighting government overreach. One of its core missions: “defending the fundamental principle of our constitutional republic that government should be open and transparent.”

The meat of the RCFP brief is a list of 16 recent stories, all of which were only possible because Nebraska governments correctly applied state law.

In the last two years alone, the brief points out, the Flatwater Free Press has used records requests to report on a range of vital topics, including overcrowding in Nebraska prisons; a surge of requests to remove library books; the precarious finances of the University of Nebraska at Omaha’s athletics department; and drinking water quality.

And we’re not alone. The brief points out that the Nebraska Examiner used public records to report about a state official who used his government email to send invitations to a political campaign event. That Omaha’s KETV obtained public records to report on the Department of Health and Human Services’ practice of capturing child support payments from families receiving state assistance. That the Omaha World-Herald, supported by public records, reported on University of Nebraska football coaches’ compensation and overtime pay for the Nebraska State Patrol.

Seeing that list spelled out that way, it’s easy to see why this matters. Day in and day out, Nebraska journalists use this law to keep an eye on our government. 

Our government is based on the idea that the governing and the governed are the same; that there is no material difference between those that run our systems and the people those systems serve.

It’s in that spirit that the records law was written. We’re all equal. Of course we should be able to see the records our government creates. 

It’s why it’s our responsibility as reporters to use the records law. It’s the whole ballgame. The big idea. The raison d’etre.

The lion’s share of Goldwater’s brief was devoted to highlighting cases around the country where governments used unreasonable — someone less charitable might say completely made up — cost estimates to dissuade requests.

A mother in Texas asked for records from her son’s school district. The district told her it would be $7,111.12. After legal intervention, that estimate plummeted to $109.

A parent in another school district was told it would cost $1,257 to get certain records. After the attorney general got involved, the district handed them over for free.

“Public entities will use every tool at their disposal to keep potentially inconvenient information from being revealed,” the Goldwater brief states. “…exorbitant fees deter citizens from asking questions they have a right to ask.”

Sadly, the state isn’t alone in pushing for a right to hide its work. 

Here’s the disappointing list of lobbying groups that signed onto the state’s case: 

  • The League of Nebraska Municipalities, which represents 395 cities and villages.
  • The Nebraska Association of School Boards, which represents 260 districts.
  • The Nebraska Association of County Officials, which accounts for each of the states’ 93 counties.
  • The Nebraska County Attorney’s Association.

Let me say, plainly, that I am not without sympathy for the public servants these groups represent. 

A person I trust recently told me that records requests to one Nebraska agency have risen tenfold over the past five years. They complained that most of the requesters are on fishing expeditions, asking for voluminous records with little purpose. Just because they can.

That’s legal – and I totally get why it’s annoying. 

But inconvenience isn’t a reason to drive a bus through a law that has been around since William Jennings Bryan. Inconvenience isn’t an excuse to offload the basic principle of government transparency.

We’ve already won this case once. 

Next week, we’re going to win again. 

By Matt Wynn

Matt Wynn is the Executive Director of the Nebraska Journalism Trust, which launched and funds the Flatwater Free Press. He has spent 13 years at news organizations across the country, most recently on the investigative team at USA Today. He lives in his hometown of Omaha with his wife, Sarah, and three children.

5 Comments

“The salvation of the state is the watchfulness of the citizens”. Thank you – may the Supreme Court, which will walk under those words when they go to their chambers, be with you.

You’ve got sound logic and reason behind this. Very glad to see progress is being made.

The Goldwater Institute is a right-wing advocacy group based in Arizona. It has ties to the Koch brothers (see below for more) and is a member of the State Policy Network (SPN), a web of state pressure groups that denote themselves as “think tanks” and drive a right-wing agenda in statehouses nationwide.

I wonder about the Goldwater Institute involvement. While it speaks of open and transparent government, many of it’s activities do not seem to support that idea very well. For example, membership in ALEC, advocacy for privatization of education and undermining public schools and teachers, opposed medicare expansion in Arizona, opposed efforts to reduce greenhouse gas emissions, ties to Koch Brothers and the Bradley Foundation. It seems to me that the Goldwater Foundation is most interested in pushing far-right policy agendas.

For those worried about the Goldwater group, Google; dark money used by Dems to
take Trump to court. There are many such groups on both sides.

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