Judge rules in favor of news nonprofit in fight over $44K fee for public records request

Matt Wynn (right), executive director of the Flatwater Free Press, listens as his lawyer Daniel Gutman speaks during a hearing in Lancaster County District Court earlier this month. The nonprofit sued the Nebraska Department of Environment and Energy in November, asking a judge to intervene in its fight over a $44,000 price tag from the state for five years of public records related to drinking water and nitrates. The judge ruled in Flatwater's favor.

Ane McBride, a former records manager at Nebraska Department of Environment and Energy, speaks at Lancaster County District Court earlier this month.

Matt Wynn, executive director of The Flatwater Free Press, speaks during a hearing in Lancaster County District Court earlier this month. The nonprofit sued the Nebraska Department of Environment and Energy in November, asking a judge to intervene in its fight over a $44,000 price tag from the state for five years of public records related to drinking water and nitrates.

Lancaster County District Judge Ryan Post asks questions during Thursday's hearing in Lancaster County District Court. The Flatwater Free Press sued the Nebraska Department of Environment and Energy in November, asking a judge to intervene in its fight over a $44,000 price tag from the state for five years of public records related to drinking water and nitrates.

A Lincoln judge has ruled in favor of a nonprofit news organization in their fight over a $44,000 price tag from the state for five years of public records related to drinking water and nitrates.

Lancaster County District Judge Ryan Post said Nebraska law allows public officials to charge a fee for making records available in certain circumstances.

"But other than for time spent 'physically redacting,' Nebraska law does not allow public officials to charge fees for time spent determining whether to make records unavailable," he wrote in a 16-page decision Tuesday afternoon.

Post ruled that the Flatwater Free Press has a "clear right to a cost estimate in compliance with the statute," and the Nebraska Department of Environment and Energy has a clear duty to provide one.

"It is not for the court to micromanage the details of a cost estimate in a mandamus action. But the evidence here showed the custodian did not perform her ministerial duty, and the request … will be granted," he wrote.

In a Tweet that followed, Matt Wynn, executive director of The Flatwater Free Press, said: "We won. We sued Nebraska over what we believe was an illegal charge for public documents — $44,000 for a routine keyword search of emails. Today, a judge agreed."

Wynn called it a "huge win for the public's right to know."

Earlier this month, the case went to trial over what started in 2022, with Flatwater making a public records request with NDEE as part of an investigation into nitrates in the state's drinking water.

Attorney Dan Gutman, who represents the news nonprofit, said after reporter Yanqi Xu got an initial $2,000 cost estimate, she narrowed the request to try to reach a lower cost. But as the request got smaller and narrower, the cost estimates got bigger.

Flatwater ultimately was told they would need to pay a deposit of $44,103.11 before the state would start the search.

At trial, Gutman said what became clear was that NDEE was charging for what wasn't specifically authorized by the Public Records Act: the reviewing and withholding of documents under statutory exceptions to disclosure.

Assistant Nebraska Attorney General Christopher Felts, who represents NDEE, said the question was whether a public body can charge for non-attorney time to review records. It was the state's position they could.

Felts said the statute, 84-712.03, permits an agency to charge after the first four hours of time spent "searching, identifying, physically redacting or copying," so long as it isn't for an attorney's time, which is specifically excluded.

Ane McBride, then the records manager for NDEE, testified that it would take several hundred hours of time collectively by agency employees to analyze the records and comply with the request, which asked for emails and attachments sent or received by NDEE staff in particular divisions containing the keywords "nitrate," nutrient," "fertilizer" or "nitrogen."

In Tuesday's decision the judge said he wasn't persuaded by the state's position that they could charge a fee for reviewing whether to withhold records as part of their fee for "providing copies."

"Especially when the Legislature has prescribed the 'fee shall not exceed the actual added cost of making the copies available,'" Post wrote.

He said the statute specifies a charge for labor may be included for "searching, identifying, physically redacting, or copying."

"And that is all. 'Reviewing' is not included and it is 'not for the court to supply missing words' to the statute," he said.

Post said adding the word would defeat the purpose of the statute, which is to "empower and authorize" citizens to gain access to public records while recognizing the government may charge a fee for "the actual added cost of making the copies available."

Under the state's interpretation, he said, there would be few limits on what may be included in the fee.

"Once the documents have been searched for and identified, those steps are complete. Any additional layer of review is up to the government, but not part of the statutorily allowed fee," Post said.

Asked if they planned to appeal, a spokeswoman for the Attorney General's Office said at this time they are analyzing the decision and have no further comment.

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Reach the writer at 402-473-7237 or [email protected].

On Twitter @LJSpilger

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Public safety reporter

Lori Pilger is a Norfolk native and University of Nebraska-Lincoln graduate who has been a public safety reporter for the Journal Star since 2005.

In November, The Flatwater Free Press sued the Nebraska Department of Environment and Energy, asking a judge to intervene.

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