Why we’re suing the Nebraska Department of Environment and Energy

The Flatwater Free Press is suing the Nebraska Department of Environment and Energy over its response to a public records request for emails.

I’d like to tell you why.

Our reporter, the intrepid Yanqi Xu, has spent months digging into issues related to nitrates that seep into groundwater. As her reporting has revealed, that pollution is likely related to our state’s high rates of pediatric cancer. 

We got a tip from a well-placed source that regulators aren’t really regulating.

Tips like that are a key ingredient in investigative reporting. Journalists take them and report them out, proving or disproving them, looking for evidence one way or another to indicate just how true the claims are. 

That verification process is what separates our work from the rumor mill. It is the essence of what we do.

That verification process is why Xu asked both the NDEE and several NRDs for employee emails that used the keyword “nitrate” and several others.

The NRDs complied.

But that verification process was thwarted by NDEE, who circumvented our reporting by using an increasingly common move from recalcitrant public officials’ playbook: 

The department asked for an absurd amount of money.

$44,103.11, to be exact.

For that amount of money, the internet tells me, the Flatwater Free Press could buy a brand new Cadillac sedan as a company car. Heck, we could buy two gently used Honda Civics!

For that amount of money, we could hire a junior reporter. We could pay our rent for many, many years. We could save up money to put a down payment on a building of our very own.

I don’t question whether there is a cost associated with pulling together public records. We routinely ask public officials — people who are paid with taxpayer dollars to perform important jobs — to spend their precious time searching for emails, to export data from sometimes dusty old systems, to dig through file cabinets for ancient reports. 

The records law allows officials to have us cover some of those costs. This is right and fair. The vast majority of costs we are asked to cover are reasonable. The Flatwater Free Press has been happy to pay them. 

We didn’t file this lawsuit casually. Our first step was to talk to the department, work with them to make this cost more manageable.

Yanqi spoke several times with officials at the department about how to accomplish that. At their behest, she reduced the time frame of our request. She reduced the number of people whose emails we wanted to see. She and I met with officials to understand what else we could do to get the records we were after, to reduce the stress to the department’s operations.

Those meetings had little impact.

Perhaps my favorite part of the NDEE’s response is its justification.

Yanqi asked for emails that contain four keywords: “nitrate,” “nitrogen,” “nutrient” and “fertilizer.” You’ve likely searched your email for keywords. I know I have. Any email client can do it lickety split. The state Office of the Chief Information Officer even confirmed to us that they could run that search themselves, reducing the cost and time investment by the department significantly.

The thing that will take time, the laughable reason fulfilling our request would cost more than Omaha’s per capita income? The NDEE believes individual employees should make an evaluation of whether their own emails can be legally withheld.

Nebraska’s public records law states, plainly, that “the fee for records shall not include any charge for the services of an attorney to review the requested public records seeking a legal basis to withhold the public records from the public.”

The NDEE is not asking us to pay for an attorney. That would clearly be illegal.

Instead, they’re asking us to cover the cost of having NDEE staff — engineers, secretaries and other specifically non legal minds — make a legal determination. 

I don’t get offended easily. This offends me.

It offends me on behalf of the Flatwater Free Press. We’re new. We’re young(ish). We’re a dang nonprofit. Perhaps officials believed we would be scared off by spurious legal claims and big dollars. 

We aren’t. 

It offends me on behalf of Nebraska journalism. Years ago, World-Herald reporter Todd Cooper and I made a very similar request, for emails with specific keywords over a period of years, of the Nebraska Department of Corrections.  Those emails cost us a few hundred dollars. They led to the resignation of public officials. The list of meaningful journalistic works stemming from a fair interpretation of our records law could fill a fistful of notebooks. Officials are robbing us — robbing all Nebraska journalists — of the chance to make it longer.

And, maybe most importantly, it offends me on behalf of Nebraskans writ large. We are investigating water. We are investigating the safety of one of the basic building blocks of life. We are working off of tips that our regulators bend over backwards not to regulate. Rather than open the books and allow us to dig in — as our records law specifically allows all citizens to do — the department is throwing out an outrageous fee and then scrambling to justify their claim.

Nebraska’s records law isn’t specific to journalists. There is no special reporter license they hand out in journalism school that gives me or any of my staff special power to access anything. 

If they’ll do this to us, what are they doing to Regular Joes?

Our public institutions are meant to operate publicly. Time and time again, they don’t. 

We lament the lack of civic participation. Yet our civic institutions make it harder and harder to participate. 

When we launched this audacious play for a future of Nebraska storytelling, I told you that we would dig. I said we’d afflict the comfortable. I told you we’d punch up.

Filing this lawsuit is a very real way of following through on that promise. We’re doing it because officials across the state shouldn’t be allowed to use big dollars to make questions go away. 

Investigative journalism often boils down to ensuring people follow the rules. The NDEE isn’t. 

The fight for truth is our mission. Our reporting hinges on a fair interpretation of the law.

So it’s a natural next step to take this issue before a judge. 

We’re proud to be able to do so.