Transparency and accountability

Whether we call ourselves the fourth estate, scribes, correspondents, pundits, reporters, or the greatest moniker of all, “ink-stained wretches,” those of us who haunt the hallways of public buildings talk a good game about government transparency. Why?

We do so because although there are reams of laws, statutes, and case history to ensure transparency in the public sector, no singular entity is charged with enforcing those rules. For that reason, we, your humble correspondents, take it upon ourselves to be the citizen’s watchdogs. It’s our business and stock-in-trade, but we don’t let that stop us from posturing about the nobility of our efforts.

Nebraska boasts a robust public records law designed to ensure transparency and accountability within government operations. The law empowers citizens with the right to access a wide array of government documents with the intent of promoting an informed and engaged public. Sounds good, right?

In March of this year, our friends at the Flatwater Free Press learned otherwise. In a legal battle to extract vital information about nitrates in our drinking water from the Nebraska Department of Environment and Energy (NDEE), the case went to the Nebraska Supreme Court, where Flatwater received a conditional “yes.” Yes, they could have the information requested, but only at an unrealistic and unworkable cost.

In theory, Nebraska’s public records law grants residents and interested persons the right to examine and obtain copies of public records. The statute has been in effect since 1866, with significant amendments in 1961 and 2000 to enhance public access. A recent 2024 amendment broadened the scope of individuals entitled to access.

Public records under the law include existing documents held by state, county, and municipal entities. Records included are government budgets, expenditures, contracts, grants, personnel records (with limitations), meeting minutes, agendas, property records, and some law enforcement records. The principle is clear: government activities should be open to public scrutiny and accountability.

While the law advocates for broad access, it also recognizes the need for exemptions to protect privacy and other legitimate interests (i.e., taxpayer expense). Personnel records, for example, often contain sensitive information and are subject to restrictions. Similarly, active law enforcement records may be withheld to maintain the integrity of ongoing investigations.

The burden of proof lies with the government agency to justify any exemption. If an agency denies access to a record, it must provide a valid reason, and citizens have the right to appeal that decision. In the Flatwater case, they weren’t after a specific, existing document. They asked NDEE to extract, aggregate, and filter email, justifying the outrageous expense.

Nebraska law mandates that public entities respond promptly to public record requests. Requests must be addressed in writing (we’re good at that), and fees for obtaining copies are limited to actual costs. The law requires agencies to provide access to records during regular business hours and to fulfill copy requests within a reasonable time frame.

Recent amendments stipulate that the cost calculation for copies cannot include charges for the first eight cumulative hours of searching, identifying, redacting, or copying records. A special service charge can be applied for requests exceeding that time, but fees for legal review to determine disclosure eligibility are prohibited.

Nebraska law also includes a relatively broad definition of “public records,” including documents and data of or belonging to the state and its subdivisions. The definition ensures that public records remain accessible regardless of physical form, including much-preferred digital formats.

Nebraska’s public records statutes are not absolute and provide specific exceptions to disclosure. They outline records that may be withheld unless disclosed in open court, administrative proceedings, or open meetings. Those exceptions are intended to balance the need for transparency with the protection of sensitive information.

Under the law, “custodians” of records are required to respond to requests within four business days. They must either provide access, deny the request with a legal basis, or explain any delays. If delays occur, the custodian must estimate costs and offer an opportunity to modify the request. In turn, we are allowed ten business days to respond to cost estimates.

The intent behind Nebraska’s public records laws is clear. They are put in place to foster open government and an informed citizenry. For that intent to be fully realized, citizens and elected officials must work together to navigate and overcome the obstacles that hinder true transparency. Only then can we ensure that the spirit of the law is honored and that our government derives its powers from the informed consent of the governed.