Aksamit Resource Mgmt. v. Nebraska Pub. Power Dist. ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/11/2018 09:10 AM CDT
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
AKSAMIT RESOURCE MGMT. v. NEBRASKA PUB. POWER DIST.
Cite as 299 Neb. 114
A ksamit R esource M anagement LLC et al., appellants,
v. Nebraska P ublic Power District, appellee.
___ N.W.2d ___
Filed February 23, 2018. No. S-17-333.
1. Statutes: Appeal and Error. Statutory interpretation is a question of
law that an appellate court resolves independently of the trial court.
2. Mandamus: Words and Phrases. Mandamus is a law action, and it is
an extraordinary remedy, not a writ of right.
3. 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.
4. Mandamus. Whether to grant a writ of mandamus is within the trial
court’s discretion.
5. 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.
6. Legislature: Statutes: Intent: Records: Public Policy. Because the
Legislature has expressed a strong public policy for disclosure, an appel-
late court must narrowly construe statutory exemptions shielding public
records from disclosure.
7. Mandamus: Proof. A party seeking a writ of mandamus under Neb.
Rev. Stat. § 84-712.03 (Reissue 2014) has the burden to satisfy three
elements: (1) The requesting party is a citizen of the state or other
person interested in the examination of the public records, (2) the
document sought is a public record as defined by Neb. Rev. Stat.
§ 84-712.01 (Reissue 2014), and (3) the requesting party has been
denied access to the public record as guaranteed by Neb. Rev. Stat.
§ 84-712 (Reissue 2014).
8. ____: ____. If the public body holding the record wishes to oppose
the issuance of a writ of mandamus under Neb. Rev. Stat. § 84-712.03
(Reissue 2014), the public body must show, by clear and conclu-
sive evidence, that the public record at issue is exempt from the
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AKSAMIT RESOURCE MGMT. v. NEBRASKA PUB. POWER DIST.
Cite as 299 Neb. 114
disclosure requirement under one of the exceptions provided by Neb.
Rev. Stat. § 84-712.05 (Cum. Supp. 2016) or Neb. Rev. Stat. § 84-712.08
(Reissue 2014).
9. Statutes: Appeal and Error. Statutory language is to 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.
10. Statutes: Legislature: Intent. In construing a statute, a court must
determine and give effect to the purpose and intent of the Legislature
as ascertained from the entire language of the statute considered in its
plain, ordinary, and popular sense.
11. Statutes. It is not within the province of the courts to read a meaning
into a statute that is not there or to read anything direct and plain out of
a statute.
12. Statutes: Words and Phrases. Generally, if an exception is expressed
in the conjunctive, both requirements must be met for the exception to
become operative.
13. Public Purpose: Intent. A public purpose has for its objective the pro-
motion of the public health, safety, morals, security, prosperity, content-
ment, and the general welfare of all the inhabitants.
Appeal from the District Court for Platte County: Robert R.
Steinke, Judge. Reversed and remanded with direction.
Roger P. Cox, P.C., L.L.O., and Peter S. Ratner, of Kellogg,
Hansen, Todd, Figel & Frederick, P.L.L.C., for appellants.
Shawn D. Renner, of Cline, Williams, Wright, Johnson &
Oldfather, L.L.P., and John C. McClure, of Nebraska Public
Power District, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
Funke, JJ.
Cassel, J.
INTRODUCTION
Nebraska Public Power District (NPPD) refused a pub-
lic records request1 from potential competitors for documents
1
See Neb. Rev. Stat. §§ 84-712, 84-712.01, and 84-712.03 to 84-712.09
(Reissue 2014 & Cum. Supp. 2016).
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AKSAMIT RESOURCE MGMT. v. NEBRASKA PUB. POWER DIST.
Cite as 299 Neb. 114
showing cost and revenue information for each of its gen-
eration units, and the district court declined to issue a writ
of mandamus to compel disclosure. The competitors’ appeal
turns on the statutory exception for “proprietary or commercial
information which if released would give advantage to busi-
ness competitors and serve no public purpose.”2
Does the statute require public records useful to an energy
policy debate to be released despite an advantage flowing to a
competitor? The words chosen by the Legislature dictate that
the answer must be “yes.” We cannot say the result is absurd.
Accordingly, we reverse the district court’s order and direct
issuance of an appropriate writ.
BACKGROUND
Parties
Aksamit Resource Management LLC and First Security
Power, LLC, are limited liability companies that were formed
under the laws of Nebraska and have headquarters in Nebraska.
Gary Aksamit is the chief executive officer of both companies
(collectively Aksamit). Aksamit intends to produce and sell
electricity in Nebraska in the near future.
NPPD is a public corporation and a political subdivision
of Nebraska. It has facilities for generation, transmission, and
distribution of electric power and energy for sale at retail and
wholesale. NPPD has several different types of generation
sources: conventional steam electric generation, which gener-
ates heat from fossil fuel; steam nuclear generation, which
generates heat from nuclear fission; combined cycle and com-
bustion turbine generation, which generates heat from the com-
bustion of natural gas; hydro facilities, which generate power
from water; diesel facilities, which use diesel engines to pro-
duce electricity; and wind facilities, where the mode of force
for the generator is wind.
2
§ 84-712.05(3) (emphasis supplied).
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AKSAMIT RESOURCE MGMT. v. NEBRASKA PUB. POWER DIST.
Cite as 299 Neb. 114
R equests for Public R ecords
and R esponse
In March 2016, Aksamit sent to NPPD 22 requests for
public records. NPPD provided documents to satisfy the vast
majority of the requests. This appeal concerns only three
requests:
• “documents sufficient to show actual expenditures and rev-
enues by cost and profit centers for each year from 2008
through 2015”;
• “each and any document dated January 1, 2013[,] or later that
contains, reflects, or constitutes a six-year rate outlook by
cost and profit centers”; and
• “documents sufficient to show the annual generation output
and revenue for each [NPPD] generation resource, owned or
cont[r]acted from 2008 through 2015.”
NPPD refused to provide records responsive to those
requests and asserted that the requested information was
exempt from public disclosure under § 84-712.05(3).
Petition for Writ
of M andamus
Aksamit filed a petition for writ of mandamus. It alleged
that disclosure of the requested information would serve a
public purpose, because the citizens of Nebraska “have an
indisputable interest in knowing the operational and financial
details associated with state-owned electrical utilities so that
they may evaluate, among other things, the continued viability
of public power in Nebraska.”
The district court ordered NPPD to either promptly provide
access to the records or, alternatively, to file an answer show-
ing cause why it declined to provide access to the records. In
an answer, NPPD maintained that the requested documents fell
within the exemption in § 84-712.05(3).
Trial
At trial, Aksamit focused on public purposes that would be
served by disclosure of the requested information. Aksamit’s
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AKSAMIT RESOURCE MGMT. v. NEBRASKA PUB. POWER DIST.
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vice president of marketing testified that Aksamit had an
interest in examining the documents as part of its market-
ing program to educate Nebraska’s ratepayers and elected
rate officials.
Dr. Ernest Goss testified about his research on public power
in Nebraska. The research involved “[e]xamining the com-
petitiveness of public power in Nebraska and how it stacks
up against its counterparts in the contiguous states such as
MidAmerican Energy in Iowa and . . . examining potential
problems for the taxpayer, the ratepayer in the years ahead.”
Based on his research, Goss concluded that “there were clear
and present dangers” for Nebraska’s taxpayers and electricity
ratepayers. Goss explained that the trajectory of electricity
prices was larger than the national average and that the trajec-
tory of rate changes “was and is unsustainable.”
A difficulty that Goss encountered while conducting research
was a lack of access to information about the costs and rev-
enues for NPPD’s individual generation units. Goss preferred
to have data relating to individual generation units so that
he could “more properly find out what’s the cause and is it
something that’s going to be of fundamental issue for the busi-
nesses, the citizens, the taxpayers of the State of Nebraska in
future years.” According to Goss, such data would have been
“very instrumental in coming to conclusions about the eco-
nomic viability of public power in Nebraska.”
Goss, as an economist and Nebraska taxpayer, expressed an
interest in knowing NPPD’s costs and revenue for individual
generating units. He explained that NPPD does not pay prop-
erty or income taxes and that the payments it makes in lieu of
such taxes are much lower than the property tax rate, which
meant that “those are taxes that are hoisted off on the Nebraska
taxpayer.” As an economist, Goss testified that it was very dif-
ficult to judge whether NPPD was being run efficiently with-
out looking at the cost and revenue information broken down
by generation units.
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AKSAMIT RESOURCE MGMT. v. NEBRASKA PUB. POWER DIST.
Cite as 299 Neb. 114
A former NPPD employee testified that he observed busi-
ness inefficiencies that increased NPPD’s costs and negatively
affected ratepayers. As a board member or a ratepayer, he
would want access to NPPD’s cost information by genera-
tion unit, because it would allow a better understanding of
such costs in order to challenge board members on “why
there’s a continuation of a high cost generating unit and
what could be done to lower those costs.” He did not believe
that NPPD’s total cost information was adequate to make
assessments as to cost by generating unit, because “[y]ou’re
lumping several contributors to a total cost which prevents
you from making sound decisions on the individual contribu-
tors to that total.” Based on NPPD’s total cost information,
an individual would be unable to identify “particular high
cost plans.”
NPPD focused on the confidentiality of the information in
the industry and the competitive harm that it may suffer if
it had to disclose records responsive to Aksamit’s requests.
There is no real dispute that Aksamit seeks to compete with
NPPD.
NPPD also competes with participants in the Southwest
Power Pool. The power pool is a regional integrated market
for the buying and selling of electricity. NPPD both buys and
sells electricity in that market. Thomas James Kent, the vice
president and chief operating officer of NPPD, testified that
the power pool makes bidding offers public 90 days after the
operating day, but that it masks the source of the bid and the
offer information in order to protect the confidentiality of the
specific units. Kent testified that if a participant in the power
pool had access to NPPD’s generation unit-specific cost and
revenue information, that information could be used to “cre-
ate bid and offer strategies that would put NPPD at a disad-
vantage and an unequal playing field in terms of being able
to compete equally in the commodity market.” He explained
that “if someone knew the specific cost information of a given
unit, they may use that information to set a bid in pricing
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AKSAMIT RESOURCE MGMT. v. NEBRASKA PUB. POWER DIST.
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strategy that would make their units more competitive.” And
if the power pool market is not recovering all of NPPD’s costs
of production, NPPD’s only other source to make up that loss
is with the rates charged to ratepayers.
Kent testified that power purchase agreements are typi-
cally not considered public documents, because the pricing
information for the cost of the power is generally considered
proprietary and confidential by the developer. For example,
NPPD currently had a power purchase agreement with a wind
facility in Nebraska which contained a confidentiality clause to
protect pricing information and other terms. Other of NPPD’s
contracts similarly contained confidentiality provisions. Kent
explained that “confidentiality is provided to ensure that the
pricing arrangements, commercial arrangements, et cetera, are
specific to that arrangement and can’t be used competitively
with other entities.” NPPD considered the cost and revenue
information on a generation unit-specific basis to be propri-
etary and confidential.
District Court’s Decision
The district court dismissed the petition for writ of man-
damus. It stated that the evidence showed the generation
unit-specific cost and revenue information was proprietary
or commercial to NPPD and that if it were released pub-
licly, it would give advantage to NPPD’s competitors. The
court reasoned:
It would be highly unlikely that in enacting
§84-712.05(3), the Legislature intended to allow record
custodians to withhold proprietary or commercial infor-
mation that would give advantage to business competi-
tors, only to render the exemption meaningless by also
requiring anything that could conceivably be labeled a
“public purpose” for release to nullify the exemption.
Here, release of NPPD’s proprietary generation unit-­
specific cost and revenue information would give advan-
tage to its competitors, including the relators. There is
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AKSAMIT RESOURCE MGMT. v. NEBRASKA PUB. POWER DIST.
Cite as 299 Neb. 114
merit to NPPD’s argument that creating an unlevel field
for competition is not a public purpose.
The district court concluded that NPPD established the
exemption under § 84-712.05(3) by clear and convincing evi-
dence. It stated:
To require disclosure of NPPD’s generation unit-­
specific cost and revenue information would give advan-
tage to its business competitors, and result in disadvan-
tage to its ratepayers by denying them “the benefits of
a successful and profitable operation and conduct of the
business of the district.” [Neb. Rev. Stat.] §70-655(1)
[(Cum. Supp. 2016)]. Such a result would serve no pub-
lic purpose.
Aksamit filed a timely appeal, and we granted its petition to
bypass review by the Nebraska Court of Appeals.
ASSIGNMENTS OF ERROR
Aksamit assigns nine errors concerning the dismissal of its
petition for a writ of mandamus. Consolidated and restated,
the errors present one issue: Whether the district court erred in
applying the exemption set forth in § 84-712.05(3).
STANDARD OF REVIEW
[1] Statutory interpretation is a question of law that an
appellate court resolves independently of the trial court.3
[2-4] Mandamus is a law action, and it is an extraordinary
remedy, not a writ of right.4 In a bench trial of a law action,
the trial court’s factual findings have the effect of a jury ver-
dict, and we will not disturb those findings unless they are
clearly erroneous.5 Whether to grant a writ of mandamus is
within the trial court’s discretion.6
3
McCoy v. Albin, 298 Neb. 297, 903 N.W.2d 902 (2017).
4
State ex rel. Veskrna v. Steel, 296 Neb. 581, 894 N.W.2d 788 (2017).
5
Id.
6
Id.
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AKSAMIT RESOURCE MGMT. v. NEBRASKA PUB. POWER DIST.
Cite as 299 Neb. 114
ANALYSIS
Public Policy
[5,6] 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.7 The Legislature intended that courts
liberally construe §§ 84-712 to 84-712.03 for disclosure “when-
ever any . . . political subdivision . . . record of receipt . . . or
expenditure involving public funds is involved.”8 And it does
so “in order that the citizens of this state shall have the full
right to know of and have full access to information on the
public finances of . . . the public bodies and entities created to
serve them.”9 Because the Legislature has expressed a strong
public policy for disclosure, an appellate court must nar-
rowly construe statutory exemptions shielding public records
from disclosure.10
Burdens of Proof for
Writ of M andamus
[7] A person denied access to a public record may file for
speedy relief by a writ of mandamus under § 84-712.03.11 A
party seeking a writ of mandamus under § 84-712.03 has the
burden to satisfy three elements: (1) The requesting party is a
citizen of the state or other person interested in the examina-
tion of the public records, (2) the document sought is a public
record as defined by § 84-712.01, and (3) the requesting party
has been denied access to the public record as guaranteed by
§ 84-712.12 It is uncontested that Aksamit satisfied its prima
facie claim for release of public records.
7
Id.
8
§ 84-712.01(3).
9
Id.
10
Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009).
11
State ex rel. Veskrna v. Steel, supra note 4.
12
Id.
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AKSAMIT RESOURCE MGMT. v. NEBRASKA PUB. POWER DIST.
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[8] Where a suit is filed under § 84-712.03, the Legislature
has imposed upon the public body the burden to “sustain
its action.”13 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
public record at issue is exempt from the disclosure require-
ment under one of the exceptions provided by § 84-712.05 or
§ 84-712.08.14
Statutory Interpretation
of § 84-712.05(3)
[9-11] Principles regarding statutory interpretation are well
known. Statutory language is to be given its plain and ordi-
nary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which
are plain, direct, and unambiguous.15 In construing a statute, a
court must determine and give effect to the purpose and intent
of the Legislature as ascertained from the entire language
of the statute considered in its plain, ordinary, and popular
sense.16 It is not within the province of the courts to read a
meaning into a statute that is not there or to read anything
direct and plain out of a statute.17
In withholding the requested information, NPPD relies
upon § 84-712.05(3). That statute sets forth an exemption
for “[t]rade secrets, academic and scientific research work
which is in progress and unpublished, and other proprie-
tary or commercial information which if released would give
13
See § 84-712.03(2).
14
State ex rel. Neb. Health Care Assn. v. Dept. of Health, 255 Neb. 784, 587
N.W.2d 100 (1998). Cf. Evertson v. City of Kimball, supra note 10 (using
clear and convincing burden of proof).
15
Farmers Co-op v. State, 296 Neb. 347, 893 N.W.2d 728 (2017).
16
J.S. v. Grand Island Public Schools, 297 Neb. 347, 899 N.W.2d 893
(2017).
17
In re Guardianship of Kaiser, 295 Neb. 532, 891 N.W.2d 84 (2017).
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advantage to business competitors and serve no public
purpose.”18 The meaning of the latter part of the exemption is
the crux of this appeal.
[12] We must give effect to the statutory language.
Grammatically, the key phrase contains two parts, following
initial words common to both. The common words are “pro-
prietary or commercial information which if released would.”19
The two parts are “give advantage to business competitors”
and “serve no public purpose.”20 Thus, the correct grammatical
reading of the second part is “proprietary or commercial infor-
mation which if released would . . . serve no public purpose.”
The two parts are joined by “and.” The word “and” is “[a]
conjunction connecting words or phrases expressing the idea
that the latter is to be added or taken along with the first.”21
Generally, if an exception is expressed in the conjunctive,
both requirements must be met for the exception to become
operative.22 Thus, NPPD had the burden to show both that the
information would give advantage to competitors and that the
information would serve no public purpose.
[13] “A public purpose has for its objective the promo-
tion of the public health, safety, morals, security, prosperity,
contentment, and the general welfare of all the inhabitants.”23
When we consider the meaning of the words “public purpose”
in § 84-712.05(3), liberal public disclosure of the records
of public entities is an important factor. The testimonies
of Goss and the former NPPD employee articulated public
18
§ 84-712.05(3).
19
Id.
20
Id.
21
Black’s Law Dictionary 86 (6th ed. 1990). See, also, State v. Melcher, 240
Neb. 592, 483 N.W.2d 540 (1992).
22
See Dutton-Lainson Co. v. Continental Ins. Co., 271 Neb. 810, 716
N.W.2d 87 (2006).
23
Platte Valley Public Power & Irrigation District v. County of Lincoln, 144
Neb. 584, 589, 14 N.W.2d 202, 205 (1944).
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purposes of the information well within political and eco-
nomic realms; indeed, one can scarcely escape the intense
public debate regarding the merits of fossil fuels versus renew-
able fuels.
The Iowa Supreme Court’s interpretation and application
of a similar statute illustrates its narrow reach. The Iowa stat-
ute provides that “[r]eports to governmental agencies which,
if released, would give advantage to competitors and serve
no public purpose” shall be kept confidential.24 In constru-
ing that statute, the Iowa Supreme Court has stated that the
public body must prove both that the documents “would give
advantage to . . . competitors and [that] their release would
serve no public purpose.”25 The court recognized the com-
peting policy interests—“the public’s right to know versus
protecting an entity against a competitor.”26 But the court
stated: “[I]t is not our responsibility to balance competing
policy interests. This balancing is a legislative function and
our role is simply to determine the legislature’s intent about
those policy issues.”27
Similarly, we conclude that the language of § 84-712.05(3)
does not allow us to balance the competing interests.
Information which would give a business competitor an advan-
tage may be withheld only if it would “serve no public pur-
pose.” There is no requirement that the public purpose to be
served outweigh the competitive harm caused.
We recognize that NPPD is not a typical governmental
body. A public corporation organized for the purpose of gen-
erating, transmitting, and distributing electrical energy oper-
ates in a proprietary as distinguished from a governmental
24
Iowa Code Ann. § 22.7(6) (West Cum. Supp. 2017).
25
Northeast Council v. Dept. of Public Health, 513 N.W.2d 757, 760 (Iowa
1994) (emphasis in original).
26
Id. at 761.
27
Id.
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capacity.28 The Legislature gave to public power districts the
usual powers of corporation organized for public purposes,
and statutes located in chapter 70, article 6, of the Nebraska
Revised Statutes (concerning public power districts) are
intended to permit the business of the district to be operated
in a successful and profitable manner.29 From this general
premise, the district court inferred legislative intent regarding a
public power district’s records. But its inference finds no direct
statutory support.
The Legislature has not included in the lengthy statutes gov-
erning public power districts any provision purporting to deny
the public access to its books and records. Indeed, the statutes
say otherwise. The board of directors of a public power dis-
trict “shall cause to be kept accurate minutes of their meetings
and accurate records and books of account,” which books and
records shall be open to public inspection.30 Further, if a dis-
trict wishes to acquire an existing system for electric light and
power, hydrogen, or ethanol, a copy of the proposed contract
must be open to public inspection for a period of time before
being executed.31
Two other public power district statutes bear upon the issue
only tangentially. One requires an annual audit by a certified
public accountant of “the books, records, and financial affairs
of the district.”32 The other mandates that the accountant have
“access to all books, records, vouchers, papers, contracts,
or other data.”33 Neither statute limits public access to these
28
Wittler v. Baumgartner, 180 Neb. 446, 144 N.W.2d 62 (1966), overruled
in part on other grounds, State ex rel. Douglas v. Nebraska Mortgage
Finance Fund, 204 Neb. 445, 283 N.W.2d 12 (1979).
29
See York County Rural Public Power Dist. v. O’Connor, 172 Neb. 602,
111 N.W.2d 376 (1961).
30
Neb. Rev. Stat. § 70-622 (Reissue 2009).
31
See Neb. Rev. Stat. § 70-626 (Reissue 2009).
32
Neb. Rev. Stat. § 70-623 (Cum. Supp. 2016).
33
Neb. Rev. Stat. § 70-623.02 (Reissue 2009).
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­ aterials. At most, the second statute effectively prohibits
m
a power district from contractually limiting its accountant’s
access to the district’s records.
If presented with the opportunity to exclude a public power
district’s competitive information from public scrutiny, the
Legislature might well do so. But thus far it has not. If the
Legislature had done so, we would not hesitate to apply the
“other statute” exception34 of the public records law and the
general principle favoring a specific over a general statute.35
NPPD failed to show that it was entitled to withhold the
requested information. Although it demonstrated that releasing
the information requested would give an advantage to its com-
petitors, it failed to establish that the information would serve
no public purpose. The law as framed required it to prove
both elements. It is the role of the Legislature to balance and
reconcile the public purposes embodied in the public records
statutes and the public power statutes.
CONCLUSION
In order for NPPD to withhold its proprietary or commercial
information, it had to show that the information “if released
would give advantage to business competitors and serve no
public purpose.”36 Construing this exemption narrowly, we
conclude that NPPD failed to demonstrate by clear and con-
clusive evidence that the information would serve no public
purpose. We therefore reverse the district court’s order and
remand the cause with direction to issue an appropriate writ in
conformity with this opinion.
R eversed and remanded with direction.
Wright, J., not participating.
34
See § 84-712.01(1).
35
See, e.g., State v. Thompson, 294 Neb. 197, 881 N.W.2d 609 (2016).
36
See § 84-712.05(3).