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NEBRASKA JOURNALISM TRUST V. DEPT. OF ENVT. & ENERGY
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Nebraska Journalism Trust, doing business as The
Flatwater Free Press, appellee, v. Nebraska
Department of Environment and Energy
and Shawnna Lara, in her official capacity
as records manager for the Nebraska
Department of Environment
and Energy, appellants.
___ N.W.3d ___
Filed March 15, 2024. No. S-23-155.
1. Actions: Mandamus. An action for a writ of mandamus is a law action.
2. Judgments: Appeal and Error. In a bench trial of a law action, the trial
court’s factual findings have the effect of a jury verdict, and an appellate
court will not disturb those findings unless they are clearly erroneous.
3. Judgments: Statutes: Appeal and Error. Questions of law and statu-
tory interpretation require an appellate court to reach a conclusion inde-
pendent of the decision made by the court below.
4. Mandamus: Statutes. Where a writ of mandamus is specifically pro-
vided as a remedy by special statute, the general rules for a mandamus
action, which conflict with the special statute, do not apply.
5. Statutes. It is not within the province of a court to read a meaning into
a statute that is not warranted by the language; neither is it within the
province of a court to read anything plain, direct, or unambiguous out of
a statute.
6. Mandamus: Records: Fees. A requester of public records who is pro-
vided with a fee estimate that contains charges unauthorized by Neb.
Rev. Stat. § 84-712 (Reissue 2014) may file for speedy relief by a writ
of mandamus.
7. Mandamus: Proof: Fees. A party seeking a writ of mandamus under
Neb. Rev. Stat. § 84-712.03 (Cum. Supp. 2022) regarding the denial
or content of a fee estimate has the burden to satisfy three elements:
(1) The requesting party is a citizen of the state or other person inter-
ested in the examination of the public records, (2) the requesting party
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sought to obtain a copy of a public record as defined by Neb. Rev. Stat.
§ 84-712.01 (Reissue 2014), and (3) the requesting party was denied a
fee estimate or was provided with a fee estimate that includes a fee the
requesting party asserts is unauthorized by Neb. Rev. Stat. § 84-712(3)
(Reissue 2014). Thereafter, if the public body holding the record wishes
to oppose the issuance of a writ of mandamus, the public body must
show, by clear and conclusive evidence, that the fees charged are autho-
rized by § 84-712(3).
8. Legislature: Statutes: Intent: Records. In enacting the public records
statutes, the Legislature has determined that the welfare of the people is
best served through liberal public disclosure of the records of the three
branches of government.
9. Statutes: Records. The overall purpose of the public records statutes is
to empower and authorize interested persons to examine public records.
10. Statutes: Legislature: Intent. The fundamental objective of statutory
interpretation is to ascertain and carry out the Legislature’s intent.
11. Statutes: Appeal and Error. Statutory language must be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
12. Records: Fees. In fulfilling a public records request, a public body may
not charge a fee for the first 4 cumulative hours of time its staff mem-
bers spend searching, identifying, physically redacting, or copying.
13. Statutes: Appeal and Error. To give effect to all parts of a statute, an
appellate court will attempt to reconcile different provisions so they are
consistent, harmonious, and sensible, and will avoid rejecting as super-
fluous or meaningless any word, clause, or sentence.
14. Records: Fees: Attorneys at Law. In fulfilling a public records request,
a public body may not charge a fee for an attorney’s services to review
the requested records for a legal basis to withhold them.
15. Statutes: Intent. A court must look at the statutory objective to be
accomplished, the problem to be remedied, or the purpose to be served,
and then place on the statute a reasonable construction which best
achieves the purpose of the statute, rather than a construction defeating
the statutory purpose.
16. Statutes: Courts: Legislature: Public Policy. A court’s proper role is
to interpret statutes and clarify their meaning, and it is the Legislature’s
function through the enactment of statutes to declare what is the law and
public policy of this state.
17. Records: Fees. The plain language of Neb. Rev. Stat. § 84-712 (Reissue
2014) permits a public body to charge a fee for time spent by nonattorney
employees, in excess of 4 cumulative hours, reviewing requested public
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Cite as 316 Neb. 174
records for a statutory basis to withhold one or more of the records in
whole or in part.
Appeal from the District Court for Lancaster County: Ryan
S. Post, Judge. Affirmed in part, and in part vacated and
remanded for further proceedings.
Michael T. Hilgers, Attorney General, Eric J. Hamilton, and
Christian Edmonds for appellants.
Daniel J. Gutman, of Law Office of Daniel Gutman, L.L.C.,
for appellee.
Derek A. Aldridge, of Perry, Guthery, Haase & Gessford,
P.C., L.L.O., for amici curiae League of Nebraska Municipalities
et al.
Marnie A. Jensen, Alexa B. Barton, and Aubrey Wells, of
Husch Blackwell, L.L.P., for amicus curiae The Goldwater
Institute.
Brian J. Fahey, of Fraser Stryker, P.C., L.L.O., for amici
curiae Reporters Committee for Freedom of the Press et al.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
Cassel, J.
I. INTRODUCTION
This appeal presents two novel questions regarding the use
of a writ of mandamus to enforce the public records statutes 1
regarding agency fee estimates. In both instances, we must
implement policy choices previously made by the Legislature.
First, can mandamus be used? Based on the plain statutory
language, it can. Second, where an electronic, keyword search
locates requested emails, does the “special service charge” of
1
See Neb. Rev. Stat. §§ 84-712 to 84-712.09 (Reissue 2014 & Cum. Supp.
2022).
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§ 84-712(3)(c) include the agency’s nonattorney time, exceed-
ing 4 hours, to determine whether they may be withheld?
Again, based on the statutory language, it does. We affirm in
part, and in part vacate and remand for further proceedings.
II. BACKGROUND
1. Public Records Requests
and Responses
Nebraska Journalism Trust, doing business as The Flatwater
Free Press (Flatwater), is a Nebraska nonprofit organization
focused on investigations and feature stories. This appeal
involves its requests for public records from the Nebraska
Department of Environment and Energy (agency) and its
records manager (manager) (collectively NDEE). Flatwater
sought emails to or from the agency’s staff members con-
taining any of the keywords “nitrate,” “nutrient,” “fertilizer,”
or “nitrogen.”
Initially, Flatwater requested such emails “with all natural
resources districts” over a 12-year period. The manager cau-
tioned that the request was “quite broad and may be costly”
and worked with Flatwater to narrow the scope of the request.
Flatwater shortened the timeframe by almost 7 years. The man-
ager estimated the cost to be $2,000, explaining:
Searching email is a manual process, so while narrow-
ing the timeframe may reduce the estimate by some, it
still involves over 200 people who will perform four sep-
arate searches, review search results to ensure the record
is responsive to the request and determine whether there
is any basis or requirement to keep certain records, or
portions of records, confidential under the appropriate
Nebraska statutes. Pertinent records will then have to be
provided to Records Management to be compiled and
presented to [Flatwater].
Flatwater then transmitted an updated public records
request to NDEE. In an effort to “make the search a little
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easier,” the updated request sought “emails to and from only
certain divisions and sections” of the agency. However, it
eliminated the requirement that the emails be sent or received
by a natural resources district. The record is not clear whether
those two changes increased or decreased the number of pos-
sible emails. Flatwater’s request sought emails containing any
of the four keywords sent or received by the agency’s staff
in six named divisions for 5 years 5½ months, along with
any attachments.
The manager responded with an estimate of the total actual
cost of providing the copies. She stated, “[W]hen we receive
a check in the amount of $44,103.11, we will begin our
search for the requested records.” The cost estimate included
a breakdown of the number of agency staff in each position,
the hourly rate of each, and the estimated number of hours
per employee. The estimate showed a cost of thousands of
dollars for 102 employees to search, analyze, and save emails
with the four keywords. Then, it approximated that a records
supervisor would spend 12 hours reviewing those emails to
ensure the email was responsive to the request, to determine
whether there was a basis to keep the email confidential, and
to prepare a flash drive with copies of pertinent emails.
The parties communicated several times as Flatwater tried
to negotiate a lower cost estimate. The manager informed
Flatwater that she asked four employees to search their emails
for the term “nitrate,” which resulted in responsive emails
of 42, 48, 996, and 1,070. Although the Office of the Chief
Information Officer (OCIO) could perform the search and
provide NDEE with emails containing the keywords, the man-
ager cautioned that “each message must be reviewed by the
individual employee before it is provided to [Flatwater].” The
manager subsequently informed Flatwater that because “our
staff will need to review their own email to determine which
email messages are public records pursuant to . . . §§ 84-712
to 84-712.09, having OCIO perform a search will not make the
process more efficient.” The manager elaborated: “[A]sking
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NEBRASKA JOURNALISM TRUST V. DEPT. OF ENVT. & ENERGY
Cite as 316 Neb. 174
the OCIO to perform the searches will add cost to the estimate
rather than reduce the cost. OCIO charges $90/hour for their
work. Staff running the search in Outlook is not time consum-
ing. Reviewing individual messages is what takes the time.”
In a later communication, the manager emphasized that the
agency was “not seeking the services of their attorney to find
a basis to withhold the information” and that “[t]he review is
being performed by agency staff.”
2. Petition for Public Records
Writ of Mandamus
Pursuant to § 84-712.03, Flatwater filed a verified petition
for a writ of mandamus against NDEE. It alleged that NDEE’s
cost estimate did not comply with Nebraska’s public records
statutes. According to Flatwater, NDEE cannot charge for any
costs associated with determining if a document is the subject
of ongoing litigation or if the document falls within statutory
exceptions to the public records statutes. Flatwater requested
the issuance of a peremptory writ of mandamus commanding
NDEE to provide a legally accurate cost estimate in response
to the public records request.
The district court issued an alternative writ of mandamus.
It ordered NDEE either to provide a cost estimate to Flatwater
in compliance with § 84-712(3)(c) or to show cause why a
peremptory writ of mandamus should not issue by filing a writ-
ten answer to the verified petition.
NDEE submitted a certificate of verification in response.
First, the agency asserted that it was entitled to sovereign
immunity. Second, the manager alleged that she demonstrated
compliance with the alternative writ by filing the certificate
of verification. The manager attached her affidavit, which
included as an attachment a copy of her communications with
Flatwater, as well as the cost estimate. Prior to trial, the dis-
trict court granted the agency’s request to substitute its current
records manager for its former records manager.
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3. Trial
The court received testimonial and documentary evidence
at trial. The evidence included the communications between
Flatwater and the manager discussed above. The former man-
ager testified about the search process to fulfill the request.
She explained: “The employee would have to go to search
their email and then the results of the nitrates for instance or
nutrient. They would have to read all of the emails that came
up as hits to that key word to be sure that it was responsive to
the request.” Further, NDEE “needed to make sure there were
no trade secrets that were being exposed, and attorney[-]client
privilege documents.”
4. Order
In the court’s written order, it first determined that the agency
was shielded by sovereign immunity and denied Flatwater’s
request for a writ as to the agency. It next determined that
Flatwater could pursue a writ of mandamus against the man-
ager, rejecting NDEE’s argument that mandamus was improper
because other remedies were available.
Turning to the estimate of the expected cost of the copies,
the court construed § 84-712(3)(c) to mean that the special
service charge for labor did not “permit a fee for nonattorney
employees to review” documents. It read the statute to mean
that the cost was limited to “time spent, in excess of four
cumulative hours, ‘searching, identifying, physically redacting,
or copying.’” The court observed that the Legislature did not
include “‘[r]eviewing’” in that list. Thus, the court stated that
“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.” The court
also stated that Flatwater’s request sought “electronic docu-
ments containing a keyword that can easily be searched and
identified without any additional review” and that “[o]nce the
documents have been searched for and identified, those steps
are complete.”
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Ultimately, the court’s order granted Flatwater’s request for
a writ of mandamus for the manager to provide an estimate of
the expected cost of the copies under § 84-712. The court sub-
sequently issued a peremptory writ of mandamus and entered
an order awarding Flatwater attorney fees and costs.
NDEE appealed, and we granted its petition to bypass
review by the Nebraska Court of Appeals. 2
III. ASSIGNMENTS OF ERROR
NDEE assigns that the district court erred in concluding
(1) that mandamus is a proper action for a challenge to a fee
estimate and (2) that fees for time spent reviewing documents
are not authorized.
IV. STANDARD OF REVIEW
[1-3] An action for a writ of mandamus is a law action. 3 In
a bench trial of a law action, the trial court’s factual findings
have the effect of a jury verdict, and an appellate court will
not disturb those findings unless they are clearly erroneous. 4
However, questions of law and statutory interpretation require
an appellate court to reach a conclusion independent of the
decision made by the court below. 5
V. ANALYSIS
1. Mandamus
NDEE argues that mandamus is unavailable to challenge a
fee estimate regarding a public records request. We have not
previously considered this specific question.
But we have generally addressed the availability of man-
damus in connection with a public records request. In State
2
See Neb. Rev. Stat. § 24-1106(2) (Cum. Supp. 2022).
3
Nebraska Republican Party v. Shively, 311 Neb. 160, 971 N.W.2d 128
(2022).
4
State ex rel. BH Media Group v. Frakes, 305 Neb. 780, 943 N.W.2d 231
(2020).
5
Frederick v. City of Falls City, 289 Neb. 864, 857 N.W.2d 569 (2015).
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ex rel. Adams Cty. Historical Soc. v. Kinyoun, 6 a case not
cited by the parties, we considered the traditional rules of
mandamus actions, recognized the scope of relief conferred
by a public records statute, and rejected arguments similar to
those advanced here.
In that case, we observed that traditionally, mandamus was
a law action and was defined as an extraordinary remedy, not
a writ of right, issued to compel the performance of a purely
ministerial act or duty, imposed by law upon an inferior tri-
bunal, corporation, board, or person, where (1) the relator has
a clear right to the relief sought, (2) there is a corresponding
clear duty existing on the part of the respondent to perform the
act, and (3) there is no other plain and adequate remedy avail-
able in the ordinary course of law.
But we then stated that Nebraska’s public records statutes
provided the appropriate relief if a request for public records
is denied, which relief included either filing for a writ of man-
damus in the district court or petitioning the Attorney General
to review the matter. 7 We observed that in any suit filed under
the public records statutes, § 84-712.03(2) conferred upon the
district court jurisdiction to “‘enjoin the public body from
withholding records, to order the disclosure, and to grant such
other equitable relief as may be proper.’” 8
Next, we rejected the records custodian’s arguments relying
upon traditional rules of mandamus. The custodian asserted
that release of the information was not purely ministerial,
that the requesting party had no clear right to the informa-
tion requested, that the custodian had no duty to release the
names, and that the requesting party had other remedies avail-
able. But we relied upon the plain language of § 84-712.03 to
the contrary.
6
See State ex rel. Adams Cty. Historical Soc. v. Kinyoun, 277 Neb. 749, 765
N.W.2d 212 (2009).
7
See id.
8
Id. at 752-53, 765 N.W.2d at 216 (quoting § 84-712.03(2)).
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We have followed that approach more recently. For
example, we declared that “a person who has been denied
access to a public record may file for a writ of mandamus
under § 84-712.03 whether or not any other remedy is also
available.” 9
[4] We conclude that where a writ of mandamus is spe-
cifically provided as a remedy by special statute, the general
rules for a mandamus action, which conflict with the special
statute, do not apply. Other authorities have reached similar
conclusions. 10
Here, NDEE asserts that in order to challenge the fee esti-
mate in this public records request, Flatwater needed to petition
the Attorney General or to bring a declaratory judgment action
and seek equitable relief. Flatwater responds that mandamus
relief is expressly authorized by statute. Both parties rely on
the language of § 84-712.03.
In § 84-712.03, the Legislature provided remedies for a
denial of rights conferred by specified public records statutes.
Section 84-712.03(1) states:
Any person denied any rights granted by sections 84-712
to 84-712.03 may elect to:
(a) File for speedy relief by a writ of mandamus in the
district court within whose jurisdiction the state, county,
or political subdivision officer who has custody of the
public record can be served; or
(b) Petition the Attorney General to review the mat-
ter to determine whether a record may be withheld from
public inspection or whether the public body that is
custodian of such record has otherwise failed to comply
9
See Jacob v. Nebraska Bd. of Parole, 313 Neb. 109, 123, 982 N.W.2d 815,
828 (2022) (emphasis supplied).
10
See, 55 C.J.S. Mandamus § 9 (2021); Jazz Casino Company, L.L.C. v.
Bridges, 223 So. 3d 488 (La. 2017); Firefighters’ Relief Fund v. Houston,
466 S.W.3d 182 (Tex. App. 2015). But see, State ex rel. Longman
v. Kachelmacher, 255 Minn. 255, 96 N.W.2d 542 (1959); Moore v.
Stahowiak, 212 Wis. 2d 744, 569 N.W.2d 711 (Wis. App. 1997).
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with such sections, including whether the fees estimated
or charged by the custodian are actual added costs or
special service charges as provided under section 84-712.
This determination shall be made within fifteen calendar
days after the submission of the petition. If the Attorney
General determines that the record may not be withheld
or that the public body is otherwise not in compliance,
the public body shall be ordered to disclose the record
immediately or otherwise comply. If the public body
continues to withhold the record or remain in noncompli-
ance, the person seeking disclosure or compliance may
(i) bring suit in the trial court of general jurisdiction or
(ii) demand in writing that the Attorney General bring
suit in the name of the state in the trial court of general
jurisdiction for the same purpose. If such demand is
made, the Attorney General shall bring suit within fifteen
calendar days after its receipt. The requester shall have
an absolute right to intervene as a full party in the suit at
any time.
[5] The plain language of § 84-712.03(1) provides for an
election of remedies. The statute specifically states that a
person denied rights “may elect to: (a) [f]ile for . . . a writ of
mandamus . . . or (b) [p]etition the Attorney General . . . .” 11
It is not within the province of a court to read a meaning into
a statute that is not warranted by the language; neither is it
within the province of a court to read anything plain, direct,
or unambiguous out of a statute. 12 Thus, we cannot ignore the
Legislature’s explicit authorization of relief by mandamus.
Historically, mandamus was the only remedy provided by
the public records statutes to seek redress for a denial of
access to public records. 13 In 1979, the Legislature added the
11
§ 84-712.03 (emphasis supplied).
12
Angel v. Nebraska Dept. of Nat. Resources, 314 Neb. 1, 988 N.W.2d 507
(2023).
13
See § 84-712.03 (Reissue 1966).
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option to petition the Attorney General 14 and, in a different
statute, provided for the “enforce[ment] by equitable relief,
whether or not any other remedy is also available.” 15 But
by adding the option to petition the Attorney General, the
Legislature in no way diminished the ability to seek a writ of
mandamus. And the subsequent inclusion in § 84-712.03(1)
(b) of “the fees estimated” or “special service charges” as a
specific matter that a person could ask the Attorney General
to review likewise does nothing to eliminate the option to seek
a writ of mandamus for a denial of rights under the specified
public records statutes.
Drawing on the denial of rights component of § 84-712.03(1),
NDEE contends that mandamus is limited to the denial of
public records. It argues that a public body does not deny
access to records in estimating fees. But § 84-712.03(1)
authorizes mandamus for the denial of “any rights granted
by sections 84-712 to 84-712.03.” (Emphasis supplied.) The
denial of rights may include the denial of records or access to
records, but it is not so limited.
[6] Among the rights granted in §§ 84-712 to 84-712.03 is
the right to obtain copies of public records for a fee which
“shall not exceed the actual added cost of making the copies
available.” 16 Section 84-712(3)(c) expounds on charges that
may not be included in the actual added cost or in a special
service charge. To charge a fee that includes costs which
§ 84-712 specifies shall not be included would be to deny
rights granted by § 84-712. We hold that a requester of pub-
lic records who is provided with a fee estimate that contains
charges unauthorized by § 84-712 may file for speedy relief by
a writ of mandamus.
We have previously set forth the burden for a party seek-
ing a writ of mandamus in a public records dispute regarding
14
See 1979 Neb. Laws, L.B. 86, § 3.
15
Id., § 7 (codified at § 84-712.07).
16
§ 84-712(3)(b).
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the denial of access to public records. 17 But we have not articu-
lated the burden for a party seeking a writ of mandamus in a
public records dispute regarding the denial or content of a fee
estimate.
When we first established the burden for a party seeking a
writ of mandamus concerning the denial of access to public
records, we recognized that § 84-712.03 places the burden of
proof on the party attempting to withhold records. 18 The statute
specifies that “the burden is on the public body to sustain its
action.” 19 We reasoned that although the burden is appropri-
ately placed on the public body to show that requested records
fit within a statutory exception to the disclosure requirement,
the requesting party still has the initial responsibility to dem-
onstrate that the record qualifies as a public record. 20 Similar
burdens should apply when a writ of mandamus is sought
regarding the denial or content of a fee estimate.
[7] We now hold that a party seeking a writ of mandamus
under § 84-712.03 regarding the denial or content of a fee esti-
mate has the burden to satisfy three elements: (1) The request-
ing party is a citizen of the state or other person interested
in the examination of the public records, (2) the requesting
party sought to obtain a copy of a public record as defined
by § 84-712.01, and (3) the requesting party was denied a fee
estimate or was provided with a fee estimate that includes a
fee the requesting party asserts is unauthorized by § 84-712(3).
Thereafter, if the public body holding the record wishes to
oppose the issuance of a writ of mandamus, the public body
must show, by clear and conclusive evidence, that the fees
charged are authorized by § 84-712(3).
17
State ex rel. BH Media Group v. Frakes, supra note 4.
18
See State ex rel. Neb. Health Care Assn. v. Dept. of Health, 255 Neb. 784,
587 N.W.2d 100 (1998), disapproved, State ex rel. BH Media Group v.
Frakes, supra note 4.
19
§ 84-712.03(2) (emphasis supplied).
20
See State ex rel. Neb. Health Care Assn. v. Dept. of Health, supra note 18.
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There is no dispute that Flatwater satisfied its initial burden.
But whether NDEE then satisfied its burden depends upon the
correct interpretation of § 84-712(3), which is the subject of
NDEE’s second assignment of error.
NDEE’s argument that mandamus is unavailable to chal-
lenge a fee estimate alleged to include unauthorized charges
lacks merit. We affirm that portion of the district court’s order
allowing Flatwater to pursue a remedy through mandamus.
And because Flatwater has not challenged the court’s determi-
nation that the agency was shielded by sovereign immunity, we
likewise affirm the denial of Flatwater’s request for a writ as
to the agency.
2. Fees for Document Review Time
The key question is whether a public agency, in fulfilling
a public records request, may charge for time spent by non
attorney staff to review the requested records prior to disclo-
sure. Before resolving the issue, we start with an overview
concerning public records and a discussion of statutory provi-
sions concerning fees.
(a) Public Records Overview
[8,9] In enacting the public records statutes, the Legislature
has determined that the welfare of the people is best served
through liberal public disclosure of the records of the three
branches of government. 21 The overall purpose of the public
records statutes is to empower and authorize interested per-
sons to examine public records. 22
With one important exception, the Legislature defined pub-
lic records to include “all records and documents, regardless
of physical form, of or belonging to this state, any county,
city, village, political subdivision, or tax-supported district in
this state, or any agency, branch, department, board, bureau,
21
Jacob v. Nebraska Bd. of Parole, supra note 9.
22
See § 84-712(1).
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commission, council, subunit, or committee of any of the
foregoing.” 23
The Legislature recognized that not every governmental
record should be viewable by the public. It provided that
records and documents are not public records “when any other
statute expressly provides that particular information or records
shall not be made public.” 24 Outside of the public records
statutes, Nebraska laws too numerous to cite either explicitly
declare that certain records are not public records subject to
disclosure under the public records statutes or expressly make
particular information confidential.
The Legislature set forth procedures for accessing pub-
lic records. It generally provided that interested persons can
examine public records during the public body’s ordinary
business hours for free. 25 And if they bring their own copy-
ing or photocopying equipment, interested persons can make
their own copies of the records free of charge. 26 Another
way to procure public records is to submit a written request
to the records custodian for access to or copies of a public
record. 27 Upon receipt of such a request, the custodian of the
record shall provide “an estimate of the expected cost of the
copies.” 28 If the estimated cost exceeds $50, a public body
may require a deposit prior to fulfilling the request. 29 We turn
to the fee provisions of § 84-712.
(b) Fees
Section 84-712(3)(b) empowers the public body to “charge
a fee for providing copies of such public record.” It specifies
23
§ 84-712.01(1).
24
Id.
25
See § 84-712(1).
26
See § 84-712(1) and (2).
27
See § 84-712(4).
28
Id.
29
See § 84-712(3)(f).
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that “[e]xcept as otherwise provided by statute, [the] fee
shall not exceed the actual added cost of making the copies
available.” 30
Section 84-712(3)(b) elaborates on “actual added cost,”
depending on whether the request involves photocopies, print-
outs of computerized data on paper, or electronic data. For
photocopies, the actual added cost “may include a reason-
ably apportioned cost of the supplies, such as paper, toner,
and equipment, used in preparing the copies.” 31 It may also
include “any additional payment obligation of the custodian
for time of contractors necessarily incurred to comply with
the request for copies.” 32 For printouts of computerized data,
the actual added cost “shall include the reasonably calculated
actual added cost of computer run time and the cost of mate-
rials for making the copy.” 33 For electronic data, the actual
added cost
shall include the reasonably calculated actual added cost
of the computer run time, any necessary analysis and
programming by the public body, public entity, pub-
lic official, or third-party information technology ser-
vices company contracted to provide computer services
to the public body, public entity, or public official, and
the production of the report in the form furnished to
the requester. 34
Building on § 84-712(3)(b), the Legislature addressed time
and activity components for the actual added cost, introduced
the “special service charge,” and excluded charges for an
attorney’s services in § 84-712(3)(c). The subsection states:
The actual added cost used as the basis for the calcula-
tion of a fee for records shall not include any charge
30
§ 84-712(3)(b).
31
§ 84-712(3)(b)(i).
32
Id.
33
§ 84-712(3)(b)(ii).
34
§ 84-712(3)(b)(iii).
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for the existing salary or pay obligation to the public
officers or employees with respect to the first four cumu-
lative hours of searching, identifying, physically redact-
ing, or copying. A special service charge reflecting the
calculated labor cost may be included in the fee for time
required in excess of four cumulative hours, since that
large a request may cause some delay or disruption of
the other responsibilities of the custodian’s office, except
that the fee for records shall not include any charge for
the services of an attorney to review the requested pub-
lic records seeking a legal basis to withhold the public
records from the public. 35
The statutory language evinces the Legislature’s attempt to
balance the public’s interest in the right of access to public
records with the public body’s interest in not being unduly
burdened in providing such access. The Legislature specified
no labor costs for the first 4 hours of activity searching, iden-
tifying, physically redacting, or copying. But it recognized that
voluminous requests could be disruptive to the public body.
Thus, it allowed a special service charge for labor costs to
account for time required in excess of 4 cumulative hours.
(c) Nonattorney Review Time
With this background, we turn to NDEE’s fee estimate of
over $44,000, primarily for time spent by nonattorney staff to
review requested records. Whether such costs are allowed is a
matter of statutory interpretation.
[10,11] The fundamental objective of statutory interpreta-
tion is to ascertain and carry out the Legislature’s intent. 36
Statutory language must be given its plain and ordinary mean-
ing, and an appellate court will not resort to interpretation
35
§ 84-712(3)(c).
36
See Fountain II v. Douglas Cty. Bd. of Equal., 315 Neb. 633, 999 N.W.2d
135 (2024).
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to ascertain the meaning of statutory words which are plain,
direct, and unambiguous. 37
No party has argued that § 84-712 is ambiguous. A statute
is ambiguous if it is susceptible of more than one reasonable
interpretation, meaning that a court could reasonably interpret
the statute either way; otherwise, the statute is unambiguous. 38
In order for a court to inquire into a statute’s legislative his-
tory, that statute in question must be open to construction,
and a statute is open to construction when its terms require
interpretation or may reasonably be considered ambiguous. 39
Because we do not read § 84-712 to have more than one rea-
sonable interpretation, we focus on the language used and do
not consult legislative history.
[12] The statutory language is clear that in fulfilling a
public records request, a public body may not charge a fee
for the first 4 cumulative hours of time its staff members
spend searching, identifying, physically redacting, or copy-
ing. 40 From this language, it necessarily follows that such a
fee may be charged for time exceeding 4 hours spent search-
ing, identifying, physically redacting, or copying.
[13] Section 84-712(3)(c) specifies that if fulfilling a
request entails more than 4 cumulative hours, “the calculated
labor cost” may be included in the fee as a “special service
charge.” To give effect to all parts of a statute, an appel-
late court will attempt to reconcile different provisions so
they are consistent, harmonious, and sensible, and will avoid
rejecting as superfluous or meaningless any word, clause, or
sentence. 41 Reading the special service charge provision in
conjunction with the sentence immediately preceding it—the
37
See id.
38
Id.
39
Heist v. Nebraska Dept. of Corr. Servs., 312 Neb. 480, 979 N.W.2d 772
(2022).
40
See § 84-712(3)(c).
41
Angel v. Nebraska Dept. of Nat. Resources, supra note 12.
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sentence addressing the first 4 cumulative hours of “searching,
identifying, physically redacting, or copying” 42—the special
service charge includes costs for the existing salary or pay
obligation to public officers or employees after the first 4
cumulative hours of searching, identifying, physically redact-
ing, or copying.
[14] The statutory language is also clear that in fulfilling
a public records request, a public body may not charge a fee
for an attorney’s services to review the requested records for
a legal basis to withhold them. 43 Had the Legislature intended
to exclude time spent by any employee reviewing the records
for a legal basis to withhold them, it could have done so. But
the statute specifically limited the exclusion to “services of an
attorney.” And we cannot read those words out of the statute.
[15] A court must look at the statutory objective to be
accomplished, the problem to be remedied, or the purpose
to be served, and then place on the statute a reasonable
construction which best achieves the purpose of the statute,
rather than a construction defeating the statutory purpose. 44
Section 84-712(3)(b)’s limitation of a fee for copies to “actual
added cost” must not be read in isolation. Section 84-712(3)
(c) begins by further defining “actual added cost” to include
labor costs. And § 84-712(3)(b) itself provides an exception
“as otherwise provided by statute.” Subsection (3)(c) effec-
tively provides otherwise. The statutory scheme shows that
the Legislature wished to make public records available, but
allowed the public body to charge for the actual added cost of
doing so, with the exception of the first 4 cumulative hours
of searching, identifying, physically redacting, or copying.
Presumably, the Legislature included the attorney fees exclu-
sion in an effort to maintain access to public records at an
affordable level.
42
§ 84-712(3)(c).
43
See id.
44
Angel v. Nebraska Dept. of Nat. Resources, supra note 12.
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Flatwater argues that just as a court cannot read words
out of a statute, it cannot read the word “reviewing” into the
activities specified in § 84-712(3)(c). But review is intrinsic
to “searching, identifying, physically redacting, or copying.” 45
A dictionary definition of “search” includes “to look at,
read, or examine . . . for information.” 46 The definitions of
“review” include “to view, look at, or look over again.” 47
While some portion of these functions could be performed
without a review—e.g., a keyword computer search or running
documents through a photocopier—identifying a document
or physically redacting a document would require some level
of review.
At oral arguments, NDEE highlighted that a statute 48 made
certain of its records confidential. This statute applies to
“[a]ny records or other information . . . concerning . . . air,
water, or land contaminant sources, which records or infor-
mation . . . relate to methods or processes entitled to protec-
tion as trade secrets . . . .” 49 Such records or information are
excepted from the definition of public records in § 84-712.01.
And only public records as defined by § 84-712.01 are subject
to examination or copying under § 84-712.
To the extent review is needed to ensure that the public
record is responsive to the request or that portions of the
record are not exempt from disclosure, the review is part of
the “actual added cost used as the basis for the calculation of
a fee for records.” 50 As NDEE noted, the Virginia Supreme
Court reached a similar conclusion in agreeing with the trial
45
§ 84-712(3)(c).
46
Webster’s Encyclopedic Unabridged Dictionary of the English Language
1287 (1989).
47
Id. at 1227.
48
Neb. Rev. Stat. § 81-1527 (Reissue 2014).
49
§ 81-1527(1).
50
§ 84-712(3)(c).
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court that review is inherent in the process of “‘“assess-
ing, duplicating, supplying, or searching for the requested
records”’” and in concluding that in the context of its public
records statute, “‘searching’ includes ‘inquiring or scrutiniz-
ing’ whether a disputed document can be released under fed-
eral and state law.” 51
We also find it significant that the Legislature included the
prohibition on charging for the services of an attorney in the
same sentence as the authorization for a special service charge
reflecting the calculated labor cost. If Flatwater’s contention
were correct—i.e., that by using the words “searching, iden-
tifying, physically redacting, or copying,” the Legislature did
not intend to allow agencies to charge a fee for time spent
reviewing documents for a legal basis to withhold them—this
provision would have been unnecessary. Applying the prin-
ciples of statutory interpretation, we cannot accept Flatwater’s
construction.
Our conclusion that “reviewing” is implicit in determin-
ing what may be disclosed as a public record is buttressed by
other provisions. Section 84-712(4) provides that upon written
request for a public record, the custodian must provide the
requesting party an estimate of the expected cost of the copies
and one of three things. Among those three options is a written
denial of the records request in compliance with § 84-712.04
if there is a legal basis for denial of access to or copies of the
record. In order to supply a legal basis for denial of access, a
review would need to have occurred. Similarly, § 84-712.06
provides that “[a]ny reasonably segregable public portion of a
record shall be provided to the public as a public record upon
request after deletion of the portions which may be withheld.”
(Emphasis supplied.) Again, a public record would need to be
reviewed to determine what portions to redact.
51
See Amer. Tradition Inst. v. Rector & Visitors, 287 Va. 330, 345, 756
S.E.2d 435, 443 (2014).
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[16] Flatwater effectively urges that once a computer search
is run for an email containing a specified word, it is entitled
to receive a copy of that email without any examination what-
soever, or at least, as a matter of policy, the cost of examin-
ing flagged emails should be borne by the public and not by
the requesting party. However sympathetic we might be to its
policy arguments, that is not our role. A court’s proper role
is to interpret statutes and clarify their meaning, and it is the
Legislature’s function through the enactment of statutes to
declare what is the law and public policy of this state. 52
[17] Applying well-known rules of statutory interpretation
and construction, we conclude that the plain language of
§ 84-712 permits a public body to charge a fee for time spent
by nonattorney employees, in excess of 4 cumulative hours,
reviewing requested public records for a statutory basis to
withhold one or more of the records in whole or in part.
We conclude that the district court erred in its statutory inter-
pretation of “special service charge.” Because of that error, the
court could not correctly determine whether the fee estimate
included any charges unauthorized by § 84-712. Recalling the
standard of review applicable to mandamus actions, the district
court should make the determination in the first instance.
VI. CONCLUSION
We affirm those portions of the district court’s order find-
ing statutory authorization to challenge an estimated fee via
mandamus and quashing the petition as against the agency.
With regard to the estimated fee here, the question before
us is not what we think the policy should be, but what the
Legislature—through the language in the statutes it enacted—
adopted as the policy. We conclude the statutory language
authorizes a public body to impose a special service charge
for time spent by nonattorney employees, in excess of 4
52
In re Interest of Tyrone K., 295 Neb. 193, 887 N.W.2d 489 (2016).
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cumulative hours, reviewing requested public records for a
statutory basis to withhold one or more of the records in
whole or in part. We vacate the district court’s writ of man-
damus and its order awarding attorney fees and costs, and
remand the cause for further proceedings in conformity with
this opinion.
Affirmed in part, and in part vacated and
remanded for further proceedings.
Miller-Lerman, J., not participating.