State ex rel. BH Media Group v. Frakes , 305 Neb. 780 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/19/2020 09:08 AM CDT
- 780 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. BH MEDIA GROUP v. FRAKES
Cite as 305 Neb. 780
State of Nebraska ex rel. BH Media Group, Inc.,
doing business as Omaha World-Herald, appellee
and cross-appellant, v. Scott Frakes, in his
official capacity as director of the Nebraska
Department of Correctional Services,
appellant and cross-appellee.
State of Nebraska ex rel. Lee Enterprises, Inc.,
doing business as Lincoln Journal Star, appellee
and cross-appellant, v. Scott Frakes, in his
official capacity as director of the Nebraska
Department of Correctional Services,
appellant and cross-appellee.
State of Nebraska ex rel. Amy A. Miller and
ACLU of Nebraska Foundation, appellees
and cross-appellants, v. Scott Frakes, in his
official capacity as director of the Nebraska
Department of Correctional Services,
appellant and cross-appellee.
___ N.W.2d ___
Filed May 15, 2020. Nos. S-18-604 through S-18-606,
S-19-027 through S-19-029.
1. Mandamus: Words and Phrases. Mandamus is a law action, and it is
an extraordinary remedy, not a writ of right.
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. Mandamus. Whether to grant a writ of mandamus is within the trial
court’s discretion.
- 781 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. BH MEDIA GROUP v. FRAKES
Cite as 305 Neb. 780
4. Statutes: Appeal and Error. Statutory interpretation is a question of
law that an appellate court resolves independently of the trial court.
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 docu-
ment 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. Records: Proof. If the requesting party satisfies its prima facie claim
for release of public records, the public body opposing disclosure must
show by clear and conclusive evidence that Neb. Rev. Stat. § 84-712.05
(Reissue 2014) or Neb. Rev. Stat. § 84-712.08 (Reissue 2014) exempts
the records from disclosure.
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. Records: Words and Phrases. Disclosure, within the meaning of the
public records statutes, refers to the exposure of documents to pub-
lic view.
13. Pleadings: Time: Appeal and Error. When any terminating motion
such as a motion to alter or amend is timely filed, a notice of appeal
filed before the court announces its decision upon the terminating
motion shall have no effect, whether filed before or after the timely fil-
ing of the terminating motion.
- 782 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. BH MEDIA GROUP v. FRAKES
Cite as 305 Neb. 780
14. Attorney Fees: Appeal and Error. On appeal, a trial court’s deci-
sion awarding or denying attorney fees will be upheld absent an abuse
of discretion.
15. Administrative Law: Records. The withholding of an entire document
by an agency is not justifiable simply because some of the material
therein is subject to an exemption.
Appeals from the District Court for Lancaster County: Jodi
L. Nelson, Judge. Appeals in Nos. S-18-604 through S-18-606
dismissed. Judgments in Nos. S-19-027 through S-19-029
affirmed in part, and in part reversed and remanded with
directions.
Douglas J. Peterson, Attorney General, and Ryan S. Post for
appellant.
Shawn D. Renner, of Cline, Williams, Wright, Johnson &
Oldfather, L.L.P., for appellees BH Media Group, Inc., and Lee
Enterprises, Inc.
Christopher Eickholt, of Eickholt Law, L.L.C., for appellees
Amy A. Miller and ACLU of Nebraska Foundation.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Freudenberg, JJ., and Moore, Judge.
Funke, J.
Scott Frakes, director of the Nebraska Department of
Correctional Services (DCS), appeals from writs of manda-
mus ordering the disclosure, pursuant to the Nebraska pub-
lic records statutes, see Neb. Rev. Stat. §§ 84-712 through
84-712.09 (Reissue 2014, Cum. Supp. 2018 & Supp. 2019), of
records related to DCS’ efforts to acquire lethal injection drugs.
Frakes contends that the records are not subject to the public
records statutes and that the district court erred in determining
that he failed to prove that the records should not be disclosed.
Because Frakes’ contentions contradict the text of Nebraska’s
public records statutes and are adverse to this court’s public
records precedent, we find that his appeal is without merit.
- 783 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. BH MEDIA GROUP v. FRAKES
Cite as 305 Neb. 780
Relators have cross-appealed, arguing that the court erred
in not ordering the redaction of confidential portions of other-
wise public records and compelling the release of the redacted
documents. As a matter of first impression, we agree with
relators.
We therefore affirm in part, and in part reverse and remand
with directions in cases Nos. S-19-027 through S-19-029. We
dismiss the appeals in cases Nos. S-18-604 through S-18-606.
BACKGROUND
This matter concerns three cases consolidated for purposes of
trial and appeal. The relators are BH Media Group, Inc., doing
business as Omaha World-Herald (OWH); Lee Enterprises,
Inc., doing business as Lincoln Journal Star (LJS); and Amy
A. Miller and ACLU of Nebraska Foundation. In October and
November 2017, each relator submitted public records requests
pursuant to the public records statutes, seeking information
related to DCS’ purchase of pharmaceuticals for use in the
lethal injection execution protocol. DCS provided responsive
documents to each request, and it informed relators that it
had additional responsive documents in its possession that
would be withheld from disclosure. DCS stated that the with-
held records consist of (1) communications between a DCS
execution team member and a lethal injection drug supplier,
(2) Drug Enforcement Agency (DEA) forms, (3) inventory
logs, (4) chemical analysis reports, (5) photographs of pack-
aging, (6) invoices, and (7) purchase orders. DCS responded
that these documents would not be disclosed, because they are
confidential and exempt from disclosure under Neb. Rev. Stat.
§ 83-967(2) (Reissue 2014) and because they are not public
records as defined under § 84-712.01(1).
Each relator petitioned the district court for Lancaster County
for a writ of mandamus to compel Frakes, in his official capac-
ity as director of DCS, to produce the withheld records. In
each case, the court entered a show cause order and Frakes
filed an answer and response. Frakes argued that nondisclosure
is justified under § 83-967(2), which makes the identity of all
- 784 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. BH MEDIA GROUP v. FRAKES
Cite as 305 Neb. 780
members of the execution team confidential and exempt from
disclosure under the public records statutes.
The matter proceeded to trial. The court heard testimony
from Miller, a citizen of Nebraska and an attorney for the
ACLU of Nebraska Foundation; JoAnne Young, a reporter for
LJS; and Joe Duggan, a reporter for OWH. A previous public
records request by Miller and response by DCS from August
16, 2016, was offered into evidence as exhibit 10. Exhibit 10
contains correspondence between Frakes and a drug supplier
concerning DCS’ payment for lethal injection drugs, an offer
to sell and purchase order, invoices, DEA forms, and photo­
copies of packaging showing the expiration dates of lethal
injection drugs.
Young testified about her reporting on state government and
death penalty issues for the LJS since 2007. She admitted she
may attempt to interview DCS’ lethal injection drug supplier
if she learned its identity. Duggan testified that if he received
information about the supplier, he would attempt to interview
the supplier and would ask who else might have information
about its transaction with DCS.
The relators called Frakes as a witness. Under DCS’ execu-
tion protocol, 1 which was received into evidence, the DCS
director, the Nebraska State Penitentiary warden, and the
Nebraska State Penitentiary public information officer are des-
ignated as members of the execution team. In his testimony,
Frakes admitted without objection that he is a member of the
execution team. In addition, he confirmed the publicly known
identities of the warden and public information officer. Frakes
did not contend that the lethal injection drug supplier is a mem-
ber of the execution team.
Frakes testified that he would not publicly identify other
members of the execution team, because there is the potential
for threats or harassment. He testified that the purchase orders
and chemical analysis reports were withheld, because they
identify a member of the execution team “on their face.” He
1
69 Neb. Admin. Code ch. 11, § 003 (2017).
- 785 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. BH MEDIA GROUP v. FRAKES
Cite as 305 Neb. 780
testified that the communication with a supplier, DEA forms,
photographs, and invoices were withheld, because they iden-
tify the supplier and, if contacted, the supplier could share the
identity of a team member. He stated that “since the supplier
has direct knowledge of team members, or at least one team
member . . . I can . . . draw the connection that [it] would be
able to identify a member of the team.” Frakes testified that
inventory logs were withheld, because they “contain informa-
tion that ultimately could lead to identifying the supplier.” He
admitted that he had the ability to redact identifying informa-
tion contained in the records and that he could ask the supplier
not to identify any team members. He did not know whether
DCS’ contract with the supplier contains a confidentiality or
nondisclosure provision. He asserted that the photographs of
packaging are attorney work product.
In closing arguments, the relators argued that the purchase
orders and chemical analysis reports should undergo a redac-
tion process and be disclosed. Regarding the remaining records,
they argued that there is no provision under Nebraska law
which makes the identity of a lethal injection drug supplier
confidential. Frakes argued that because the withheld records
name the supplier and the supplier knows the identity of a team
member, the withheld records are reasonably calculated to lead
to the identity of a team member.
On June 18, 2018, the district court entered orders in each
case partially granting and partially denying the requests
for writs of mandamus. The court found that pursuant to
§ 84-712.01(3), it was required to liberally construe public
records laws in favor of disclosure. The court found the rela-
tors met their burden to show a prima facie claim that they
were denied access to public records as guaranteed by public
records laws. The court interpreted § 83-967(2) as an exemp-
tion from disclosure under the public records statutes and
found that the burden therefore shifted to Frakes to prove by
clear and convincing evidence that the documents sought were
exempt from disclosure. The court found that the purchase
orders and chemical analysis reports identified execution team
- 786 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. BH MEDIA GROUP v. FRAKES
Cite as 305 Neb. 780
members on their face and therefore were exempt from disclo-
sure under § 83-967(2). As to the remaining documents, the
court found that Frakes failed to meet his burden to show that
an exemption applies. The court stated that “[t]he evidence is
speculative at best” that disclosure of these documents would
lead to the identification of an execution team member. The
court found that Frakes had not proved that the photographs of
packaging are attorney work product. The court ordered Frakes
to disclose within 7 days the communications with the sup-
plier, DEA records, invoices, inventory logs, and photographs
of packaging.
On June 19, 2018, Frakes filed a notice of appeal. On June
27, relators filed motions to alter or amend the judgments
to include an award of attorney fees and costs. The court
determined that, despite Frakes’ notice of appeal, it had juris-
diction over the motions to alter or amend. The court found
the motions to alter or amend were proper, because relators
had requested attorney fees in their petitions. Following a
hearing, the court granted relators’ motions for an award of
attorney fees and costs. Frakes appealed, and relators cross-
appealed. We moved the appeals to our docket and consoli-
dated them.
ASSIGNMENTS OF ERROR
Frakes assigns, restated, that the district court erred in (1)
finding relators had established standing and jurisdiction, (2)
finding relators had met their burden to show the documents
sought are public records as defined by § 84-712.01, (3) find-
ing § 83-967(2) is an exemption from disclosure that the public
body must prove applies by clear and convincing evidence, (4)
finding Frakes failed to establish by clear and convincing evi-
dence that the withheld documents are reasonably calculated
to lead to the identity of an execution team member, (5) find-
ing Young’s public records request was properly submitted,
(6) finding the court had jurisdiction to rule on the motions to
alter or amend, and (7) finding relators were entitled to attor-
ney fees and costs.
- 787 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. BH MEDIA GROUP v. FRAKES
Cite as 305 Neb. 780
Relators assign on cross-appeal that the district court erred
in not requiring disclosure of the purchase orders and chemical
analysis reports with the redactions of confidential information,
in accordance with § 84-712.06.
STANDARD OF REVIEW
[1-3] Mandamus is a law action, and it is an extraordinary
remedy, not a writ of right. 2 In a bench trial of a law action, the
trial court’s factual findings have the effect of a jury verdict,
and we will not disturb those findings unless they are clearly
erroneous. 3 Whether to grant a writ of mandamus is within the
trial court’s discretion. 4
[4] Statutory interpretation is a question of law that an
appellate court resolves independently of the trial court. 5
ANALYSIS
[5] 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 Section 84­-712.01(1) defines public
records in Nebraska: “[P]ublic records shall 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, commission, council, subunit, or
committee of any of the foregoing.”
[6] The Legislature intended that courts liberally construe
§§ 84-712 to 84-712.03 for disclosure “whenever any state . . .
record of receipt [or] voucher, invoice, purchase order . . . or
2
State ex rel. Veskrna v. Steel, 296 Neb. 581, 894 N.W.2d 788 (2017).
3
Id.
4
Id.
5
Aksamit Resource Mgmt. v. Nebraska Pub. Power Dist., 299 Neb. 114, 907
N.W.2d 301 (2018).
6
Id.
- 788 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. BH MEDIA GROUP v. FRAKES
Cite as 305 Neb. 780
expenditure involving public funds is involved.” 7 And it did
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.” 8 Because the Legislature has expressed a strong
public policy for disclosure, an appellate court must narrowly
construe statutory exemptions shielding public records from
disclosure. 9
[7,8] A person denied access to a public record may file for
speedy relief by a writ of mandamus under § 84-712.03. 10 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. 11 If the requesting party satisfies its prima facie
claim for release of public records, the public body oppos-
ing disclosure must show by clear and conclusive evidence
that § 84-712.05 or § 84-712.08 exempts the records from
disclosure. 12
Jurisdiction
We have two sets of appeals: those taken following the
June 18, 2018, orders and those taken after the district court
awarded attorney fees to the relators. The first appeals were
7
§ 84-712.01(3).
8
Id.
9
Aksamit Resource Mgmt., supra note 5.
10
Id.
11
Id. See State ex rel. Neb. Health Care Assn. v. Dept. of Health, 255 Neb.
784, 587 N.W.2d 100 (1998).
12
See Aksamit Resource Mgmt., supra note 5; State ex rel. Neb. Health Care
Assn., supra note 11. Cf. State ex rel. Veskrna, supra note 2 (using clear
and convincing burden of proof); Evertson v. City of Kimball, 278 Neb. 1,
767 N.W.2d 751 (2009).
- 789 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. BH MEDIA GROUP v. FRAKES
Cite as 305 Neb. 780
premature. 13 We dismiss those appeals for lack of jurisdiction.
We have jurisdiction over the second set of appeals.
Standing
Frakes argues that the relators lack standing to bring this
mandamus action, because they failed to prove, as a threshold
matter, that the documents they seek are “public records” as
defined by § 84-712.01. In framing this as a standing argu-
ment, rather than a burden of proof argument, Frakes relies on
language from State ex rel. Neb. Health Care Assn. v. Dept.
of Health. 14 In that case, as referenced above, we set out the
respective burdens of proof that applied to those seeking to use
mandamus to compel access to public records and those seek-
ing to withhold such records. Frakes is correct that, in dicta, we
described the relator’s burden of proof as something that was
necessary “[i]n order to establish standing and jurisdiction” 15 to
bring a mandamus action under § 84-712.03. But our language
regarding standing and jurisdiction was imprecise, and has
caused unnecessary confusion.
In the context of a public records denial, a district
court’s jurisdiction over a writ of mandamus is governed by
§ 84-712.03, and such jurisdiction does not turn on whether
the claim advanced by the relator has merit. The concept of
standing relates to a court’s power to address the issues pre-
sented and serves to identify those disputes which are appro-
priately resolved through the judicial process. 16 The focus of
the standing inquiry is on whether the plaintiff is the proper
party to assert the claim. 17 Indeed, in considering standing,
the legal and factual validity of the claim presented must be
13
See State ex rel. Fick v. Miller, 252 Neb. 164, 560 N.W.2d 793 (1997).
14
State ex rel. Neb. Health Care Assn., supra note 11.
15
Id., 255 Neb. at 789, 587 N.W.2d at 105.
16
Griffith v. Nebraska Dept. of Corr. Servs., 304 Neb. 287, 934 N.W.2d 169
(2019).
17
Id.
- 790 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. BH MEDIA GROUP v. FRAKES
Cite as 305 Neb. 780
assumed. 18 To the extent State ex rel. Neb. Health Care Assn.
framed the relator’s showing in a mandamus action seek-
ing public records as a matter of standing and jurisdiction
rather than a threshold burden of proof, we disapprove of
that language.
A party denied access to records need only establish a prima
facie claim that the requested record is a public record. 19 A
party has established a prima facie claim if it has produced
enough evidence to demonstrate that it is entitled to judgment
if the evidence were uncontroverted. 20 The inquiry of whether
a requested record is a public record focuses on the information
or record sought. 21
The categories of records at issue in Frakes’ appeal are the
records that the district court found did not on their face iden-
tify an execution team member, which are (1) communications
between a DCS execution team member and a supplier, (2)
DEA forms, (3) inventory logs, (4) photographs of packag-
ing, and (5) invoices. Relators have not sought the identity
of any execution team member and have requested that any
confidential information within the records be redacted prior to
their disclosure.
Here, after correctly setting out the parties’ respective
burdens of proof, the district court made factual findings
that relators met their burden to prove they were citizens
of Nebraska or other persons interested in the examination
of the public records, that the documents sought were pub-
lic records as defined by § 84-712.01, and that Frakes had
denied them access to the records. Because we do not find
18
Id.
19
See, City of Kimball, supra note 12; State ex rel. Neb. Health Care Assn.,
supra note 11.
20
See Chicago Lumber Co. of Omaha v. Selvera, 282 Neb. 12, 809 N.W.2d
469 (2011).
21
See, State ex rel. Adams Cty. Historical Soc. v. Kinyoun, 277 Neb. 749,
765 N.W.2d 212 (2009); City of Kimball, supra note 12; State ex rel. Neb.
Health Care Assn., supra note 11.
- 791 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. BH MEDIA GROUP v. FRAKES
Cite as 305 Neb. 780
any of these findings to be clearly erroneous, we will not dis-
turb them.
Frakes’ position is distinguishable from our decision in
State ex rel. Unger v. State. 22 In State ex rel. Unger, the rela-
tor sought the disclosure of a portion of a presentence report
consisting of a victim’s questionnaire, which raised the issue
of whether a presentence report is within the definition of
“public records” under § 84-712.01. We found that under
Neb. Rev. Stat. § 29-2261(6) (Cum. Supp. 2014), a presen-
tence report is privileged and wholly exempt from disclosure
unless otherwise provided by statute, and that as a result,
presentence report materials are not considered public records
under § 84-712.01(1). Even recognizing that State ex rel.
Unger upheld a public body’s decision to withhold informa-
tion, that case does not support the overbroad theory that
Frakes asserts here. If Frakes were correct on his standing
and jurisdiction theory, we would have dismissed the appeal
in State ex rel. Unger for lack of jurisdiction, but we did not
do so. We affirmed the district court’s decision that the relator
failed to establish a prima facie claim, because, in that case,
the Legislature expressly made privileged a particular type of
record, a presentence report. Consequently, the relator failed
to set forth a prima facie claim, because even if his claim
were uncontroverted, the information sought was privileged.
Here, accepting their claims as uncontroverted for purposes
of establishing a prima facie claim, relators have not sought
privileged information, including the identity of any execu-
tion team member, nor any information reasonably calculated
to lead to the identity of an execution team member. Section
83-967(2) does not impede relators’ ability to establish a prima
facie claim.
Frakes separately argues that Young and Duggan did not
submit records requests on behalf of LJS and OWH respec-
tively. However, the record is clear that Young and Duggan
submitted the requests as journalists for their respective news
22
State ex rel. Unger v. State, 293 Neb. 549, 878 N.W.2d 540 (2016).
- 792 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. BH MEDIA GROUP v. FRAKES
Cite as 305 Neb. 780
organizations. The record is also clear that DCS was respond-
ing to Young and Duggan as representatives of their respective
news organizations. Frakes further argues that Young’s request
was in the form of questions and not requests. Assuming with-
out deciding that Young’s records request was not submitted in
the proper form, we find that Frakes has waived this argument
pursuant to §§ 84-712(4) and 84-712.04. However, DCS did
not deny Young’s request on this basis and simply responded
in the same manner as it did to the other requesting parties.
Therefore, Young did not have an opportunity to modify her
request as provided under § 84-712(4).
The relators have standing, and the district court had juris-
diction under § 84-712.03.
Documents Subject to Public
Records Statutes
Frakes next argues that the requested documents are not sub-
ject to the public records statutes based on § 83-967(2). Frakes
contends that the disclosure of the documents will lead to the
identity of the execution team members. Frakes relies upon the
first clause of § 83-967(2), which provides: “The identity of all
members of the execution team, and any information reason-
ably calculated to lead to the identity of such members, shall
be confidential and exempt from disclosure pursuant to sec-
tions 84-712 to 84-712.09 . . . .”
It is well-understood that the public records statutes place
the burden of proof upon the public body to justify nondisclo-
sure. 23 In order for Frakes to withhold records responsive to
relators’ public information requests based upon § 83-967(2),
he has to show that the information identifies a member of the
execution team or is reasonably calculated to lead to the iden-
tity of such a member.
[9-11] Statutory language is to be given its plain and
ordinary meaning, and an appellate court will not resort to
23
See, § 84-712.03(2); City of Kimball, supra note 12; State ex rel. Neb.
Health Care Assn., supra note 11.
- 793 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. BH MEDIA GROUP v. FRAKES
Cite as 305 Neb. 780
interpretation to ascertain the meaning of statutory words
which are plain, direct, and unambiguous. 24 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. 25 It is not within the province of the courts to
read a meaning into a statute that is not there or to read any-
thing direct and plain out of a statute. 26
We first analyze Frakes’ argument that as a matter of statu-
tory interpretation, § 83-967(2) provides a complete exception
to Nebraska’s public records laws pursuant to the “other stat-
ute” exception found in § 84-712(1). Section 84-712(1) states:
“Except as otherwise expressly provided by statute, all citizens
of this state and all other persons interested in the examina-
tion of the public records as defined in section 84-712.01
are hereby fully empowered and authorized to (a) examine
such records, and . . . obtain copies of public records . . . .”
(Emphasis supplied.)
Frakes argues that § 83-967(2) is an “other statute” and
that when §§ 83-967(2) and 84-712(1) are read together, they
combine to create an “exception from the entirety of the
[public records statutes],” 27 and that therefore, the documents
requested by relators are “not subject to the statute authorizing
records requests.” 28
The public records statutes encourage open and transparent
government. Even so, the Legislature has made certain records
exempt from disclosure under §§ 84-712.05 and 84-712.08.
Section 84-712.05 provides that 23 separate categories of
records “may be withheld from the public,” so long as those
24
In re Application No. OP-0003, 303 Neb. 872, 932 N.W.2d 653 (2019).
25
J.S. v. Grand Island Public Schools, 297 Neb. 347, 899 N.W.2d 893
(2017).
26
State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018).
27
Reply brief for appellant in cases Nos. S-18-604 through S-18-606 at 9.
28
Brief for appellant in cases Nos. S-18-604 through S-18-606 at 20.
- 794 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. BH MEDIA GROUP v. FRAKES
Cite as 305 Neb. 780
records have not been “publicly disclosed in an open court,
open administrative proceeding, or open meeting or disclosed
by a public entity pursuant to its duties.” Section 84-712.05
permits the withholding of a variety of categories of sensi-
tive information, such as medical records and Social Security
numbers. Several of these types of records are identified
as “confidential.” 29 Section 84-712.08 suspends §§ 84-712,
84-712.01, and 84-712.03 through 84-712.09, as well as Neb.
Rev. Stat. § 84-1413 (Cum. Supp. 2016), when the application
of those provisions would result in the loss of federal funds,
services, or essential information which would otherwise be
available to a state agency.
A statute qualifies as an “other statute” under § 84-712(1)
when the plain language of a statute makes it clear that a record,
or portions thereof, is exempt from disclosure in response to a
public records request. 30 An “other statute” exemption does not
allow a court to imply an exemption but only allows a specific
exemption to stand. 31
Section 83-967(2) provides that the identity of execution
team members, and any information reasonably calculated
to lead to the identity of such members, “shall be confiden-
tial and exempt from disclosure pursuant to sections 84-712
to 84-712.09.” The plain and unambiguous language of
§ 83-967(2) contains an identifiable legislative intent to pre-
vent the disclosure of the identities of execution team mem-
bers. Section 83-967(2) thus qualifies as an “other statute”
under § 84-712(1).
Although we agree that § 83-967(2) qualifies as an “other
statute” under § 84-712(1), we disagree with Frakes about
the impact of this conclusion. The plain and ordinary lan-
guage of § 83-967(2) does not provide a complete exception
29
See § 84-712.05(4), (13), and (16)(b).
30
See Doe ex rel. Roe v. Washington State Patrol, 185 Wash. 2d 363, 374
P.3d 63 (2016).
31
Id.
- 795 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. BH MEDIA GROUP v. FRAKES
Cite as 305 Neb. 780
to the public records statutes. Rather, § 83-967(2) makes
records “exempt from disclosure pursuant to sections 84-712
to 84-712.09.” Frakes is attempting to imply an exception
using § 84-712(1) without regard to the language found within
§ 83-967(2).
[12] An exemption from disclosure should not be misunder-
stood as an exception to the laws of the public records statutes.
Disclosure, within the meaning of the public records statutes,
refers to the exposure of documents to public view. 32 In argu-
ing that § 83-967(2) creates an exception to the entirety of the
public records statutes, Frakes presumes that the sole obliga-
tion imposed by the public records statutes is the exposure of
documents to public view. Contrary to Frakes’ presumption,
however, the public records statutes impose other additional
obligations upon governmental bodies. An example of such
an additional obligation occurs when a public body denies a
public records request and § 84-712.04(1) requires the public
body to provide to the requesting party in writing a description
of the withheld records and the reasons for denial, including
citations to any particular supporting legal authority. The writ-
ing must name the public official responsible for denying the
request and provide notice of the requester’s right to adminis-
trative or judicial review of the public body’s decision. Section
84-712.04(2) requires each public body to maintain a file of
all denial letters and to make the file available to any person
upon request.
The language of § 83-967(2) states only that certain records
are “confidential and exempt from disclosure,” which is simi-
lar to language the Legislature has used in exempting other
confidential records from disclosure under § 84-712.05, like
§ 84-712.05(4), (13), and (16)(b). There is no language within
§ 83-967(2) that would relieve DCS of its obligations under
the public records statutes to respond to and document public
information requests even where documents are not exposed to
32
State ex rel. Neb. Health Care Assn., supra note 11.
- 796 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. BH MEDIA GROUP v. FRAKES
Cite as 305 Neb. 780
public view. Were we to accept Frakes’ view that § 83-967(2)
operates as a complete exception to the public records statutes,
he would have no obligation to respond to a records request
that he deems to implicate § 83-967(2), confirm the existence
of records sought, explain why records may be withheld, pro-
vide notice of a right to judicial or administrative review of
his decision, or keep these requests on file or make such file
available upon request.
Under this court’s precedent, we have consistently respected
the venerable policies of the public records statutes when
adjudicating the applicability of exemptions from disclosure. 33
In State ex rel. Sileven v. Spire, 34 the relator filed a pub-
lic records request for documents relevant to investigations
of him by law enforcement. The trial court found that the
documents fell within the plain and ordinary meaning of an
exemption under § 84-712.05(5), because the records were
developed or received by law enforcement agencies as part of
an investigation. The relator claimed that he had a heightened
interest in obtaining the records, because he was entitled to
review information regarding his criminal history record as
provided by Neb. Rev. Stat. § 29-3525 (Reissue 1989). This
court cited to Neb. Rev. Stat. § 29-3506 (Reissue 1989),
which provides that “[c]riminal history record information
shall not include intelligence or investigative information.”
In considering the impact of § 29-3506 on the relator’s argu-
ment, we cited to the “other statute” exception found within
§ 84-712. We concluded that “[t]he information requested by
the relator consists of records concerning an investigation of
him and is specifically excluded from review under § 29-3506
as well as § 84-712.05(5).” 35 Thus, we understood in that
context that both an “other statute” exception under § 84-712
33
See, State ex rel. Unger, supra note 22; State ex rel. Sileven v. Spire, 243
Neb. 451, 500 N.W.2d 179 (1993).
34
State ex rel. Sileven, supra note 33.
35
Id., 243 Neb. at 457, 500 N.W.2d at 183.
- 797 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. BH MEDIA GROUP v. FRAKES
Cite as 305 Neb. 780
and an exemption within § 84-712.05 applied, that both stat-
utes protected the information sought from disclosure, and
that applying either statute led to the same result. The fact
that § 29-3506 qualified as an “other statute” did not render
the public records statutes inapplicable nor preclude judicial
review of the government’s decision to withhold information,
as Frakes argues § 83-967(2) does here.
State courts in other jurisdictions have held that all public
records exceptions, including “other statute” exceptions, are
construed narrowly. 36 The “narrow construction” rule means
that if there is a plausible construction of a statute favoring
disclosure of public records that construction will prevail. 37
Reference to federal laws confirms the rule that an “other
statute” exception is to be narrowly construed. “Nebraska, like
the federal government and many other states, has broad public
records laws that generally provide open access to governmen-
tal records.” 38 We have previously analogized decisions under
the federal Freedom of Information Act (FOIA), 5 U.S.C.
§ 552 (2018), to construe Nebraska’s public records statutes. 39
As an analogy to § 84-712, the third exemption under the
FOIA, 5 U.S.C. § 552(b)(3), provides that disclosure require-
ments do not apply to matters “specifically exempted from
disclosure by statute.” Exemptions under the FOIA “must be
narrowly construed.” 40
36
Fisher Broadcasting v. City of Seattle, 180 Wash. 2d 515, 326 P.3d 688
(2014). See, American Civil Liberties Union of Northern California v.
Superior Court, 202 Cal. App. 4th 55, 134 Cal. Rptr. 3d 472 (2011);
County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 89 Cal.
Rptr. 3d 374 (2009); Colby v. Gunson, 224 Or. App. 666, 199 P.3d 350
(2008).
37
Colby, supra note 36.
38
Kinyoun, supra note 21, 277 Neb. at 754, 765 N.W.2d at 217.
39
City of Kimball, supra note 12; State ex rel. Neb. Health Care Assn., supra
note 11.
40
Dept. of Air Force v. Rose, 425 U.S. 352, 361, 96 S. Ct. 1592, 48 L. Ed.
2d 11 (1976).
- 798 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. BH MEDIA GROUP v. FRAKES
Cite as 305 Neb. 780
With these principles in mind, we agree with the dis-
trict court’s interpretation that § 83-967(2) is reasonably
and ordinarily understood as an exemption like those under
§ 84-712.05. In the context presented here, we must interpret
§ 83-967(2) together with provisions under the public records
statutes and narrowly construe § 83-967(2) in favor of disclo-
sure, particularly due to the fact that this case concerns the
expenditure of public funds.
Frakes relies on language from Aksamit Resource Mgmt. v.
Nebraska Pub. Power Dist. 41 In that case, the power district
relied on an exemption under § 84-712.05(3) to withhold its
competitive information; the power district did not rely on an
“other statute.” We narrowly construed § 84-712.05(3) in favor
of disclosure and held that the power district was required to
disclose its records. We concluded our opinion by stating that
had the Legislature passed a hypothetical “other statute” pro-
tecting the power district’s competitive information, “we would
not hesitate to apply the ‘other statute’ exception of the public
records law and the general principle favoring a specific over
a general statutes.” 42
Within 2 months of our decision, the Legislature passed
superseding legislation in Neb. Rev. Stat. § 70-673 (Reissue
2018), which provides:
(1) Notwithstanding any other provision of law, the
public power industry . . . and the Nebraska Power
Review Board may withhold competitive or proprietary
information which would give an advantage to business
competitors. . . .
(2) Any request for records described in this sec-
tion shall be subject to the procedures for public record
requests provided in sections 84-712 to 84-712.09.
The language of § 70-673 demonstrates the shortcomings of
Frakes’ theory regarding § 83-967(2). First, by using the phrase
41
Aksamit Resource Mgmt., supra note 5.
42
Id., 299 Neb. at 127, 907 N.W.2d at 310.
- 799 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. BH MEDIA GROUP v. FRAKES
Cite as 305 Neb. 780
“[n]otwithstanding any other provision of law,” the Legislature
demonstrated with clear intention that § 70-673(1) should
prevail when it conflicts with another statute. By contrast,
§ 83-967(2) does not state that information is exempt from dis-
closure “notwithstanding [the public records statutes].” Rather,
§ 83-967(2) states that information is exempt from disclosure
“pursuant to [the public records statutes].” Under an appropri-
ately narrow construction, § 83-967(2) can be harmonized with
the public records statutes and interpreted as an exemption.
Second, § 70-673(2) recognizes that, as described above, the
public records statutes impose requirements to respond to and
document public records requests. Under Frakes’ reading of
§ 83-967(2), he is not subject to those statutory requirements
even though § 83-967(2) is silent on the matter. Frakes’ atex-
tual interpretation must be rejected.
The lessons of Aksamit Resource Mgmt. counsel against
Frakes’ interpretation. In Aksamit Resource Mgmt., we over-
ruled a district court’s determination that an exemption under
§ 84-712.05 applied and found that under an appropriately
narrow construction of the exemption, the records at issue
were required to be disclosed. We apply precisely the same
rationale here. Guided by the Legislature’s requirement under
§ 84-712.01(3) that we liberally construe public records stat-
utes in favor of disclosure in cases which concern the expen-
diture of public funds, we conclude that the district court cor-
rectly interpreted § 83-967(2) as an exemption under the public
records statutes. This assignment of error is without merit.
Failure of Proof Exemption Applies
The next issue for consideration is whether Frakes met his
burden of proving an exemption applies which justifies nondis-
closure. The district court’s findings in favor of relators have
the effect of a jury verdict and will not be disturbed unless
they are clearly erroneous. 43
43
See State ex rel. Veskrna, supra note 2.
- 800 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. BH MEDIA GROUP v. FRAKES
Cite as 305 Neb. 780
Frakes argues on appeal that the documents ordered to be
disclosed contain information “reasonably calculated to lead to
the identity” of a team member as pronounced in § 83-967(2).
However, the phrase “reasonably calculated” is undefined by
statute and has not previously been interpreted by this court
in the context of § 83-967(2). We need not do so here. But
our analysis should not be read to disregard this phrase or to
suggest that it could never lead to withholding records which
would otherwise be subject to disclosure under the public
records statutes.
Even accepting, only for purposes of argument, Frakes’
proposed definition, the evidence did not rise to that level. He
defines “reasonably calculated” as that which is “moderately
likely.” 44 Thus, he argues, § 83-967(2) protects “information
[moderately likely] to lead to the identity” of an execution
team member. Frakes testified that he understood identifying
information of an execution team member to include that per-
son’s name, official title, personal or work email address, or
office address. Apart from the purchase orders and chemical
analysis reports, which identify a team member on their face,
Frakes has not elicited any proof that the remaining records
contain any identifying information with regard to an execu-
tion team member. Nor did he present evidence of a chain of
discovery moderately likely to result in the discovery of the
identity of an execution team member.
We digress to reject two arguments advanced by the par-
ties. First, the relators disputed whether unidentified execu-
tion team members truly are at risk of threats or harassment if
identified. But regardless of the factual record on this issue, the
Legislature has protected against the disclosure of the identities
of execution team members under § 83-967(2). Second, there
is no merit to Frakes’ argument that the occupations of Miller,
Young, and Duggan make it more likely that disclosure of the
records will lead to the identity of a team member. Frakes’ duty
to disclose public records does not depend on who makes the
44
Brief for appellant in cases Nos. S-18-604 through S-18-606 at 25.
- 801 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. BH MEDIA GROUP v. FRAKES
Cite as 305 Neb. 780
request. The public records statutes apply “equally to all per-
sons without regard to the purpose for which the information is
sought.” 45 As a general rule, citizens are not required to explain
why they seek public information. 46 “The information belongs
to citizens to do with as they choose.” 47 The withholding of
information under public records laws cannot be predicated on
the identity of the requester. 48
Upon review of the sworn testimony, exhibits, the district
court’s order, and the parties’ arguments on appeal, we con-
clude that Frakes failed to prove by clear and conclusive evi-
dence that any of the requested records are reasonably calcu-
lated to lead to the identity of an execution team member. The
evidence on this issue was slight on both sides, with the burden
of proof on Frakes.
While objections were sustained to numerous questions
which may have been aimed at meeting this burden, Frakes
made no offers of proof 49 nor does he assign any error on
appeal to these evidentiary rulings. 50
In his presentation to the trial court, Frakes focused on
arguing that the public records statutes are inapplicable and
that relators carry the burden of proof. Frakes conceded that
these records do not identify execution team members on their
45
State ex rel. Sileven, supra note 33, 243 Neb. at 457, 500 N.W.2d at 183.
46
National Archives and Records Admin. v. Favish, 541 U.S. 157, 124 S. Ct.
1570, 158 L. Ed. 2d 319 (2004).
47
Id., 541 U.S. at 172.
48
See id. See, also, U. S. Dept. of Justice v. Reporters Committee, 489 U.S.
749, 109 S. Ct. 1468, 103 L. Ed. 2d 774 (1989); NLRB v. Sears, Roebuck
& Co., 421 U.S. 132, 95 S. Ct. 1504, 44 L. Ed. 2d 29 (1975); North v.
Walsh, 881 F.2d 1088 (D.C. Cir. 1989).
49
See Sturzenegger v. Father Flanagan’s Boys’ Home, 276 Neb. 327, 754
N.W.2d 406 (2008) (to predicate error upon ruling to permit witness to
answer specific question, record must show offer to prove facts sought to
be elicited).
50
See Armstrong v. State, 290 Neb. 205, 859 N.W.2d 541 (2015) (for
appellate court to consider alleged error, party must specifically assign and
argue it).
- 802 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. BH MEDIA GROUP v. FRAKES
Cite as 305 Neb. 780
face, and he did not argue that the five categories of withheld
records at issue contained any identifying information with
regard to an execution team member. Frakes testified that the
records identify a lethal injection drug supplier, which if con-
tacted could disclose the identity of an execution team member.
But he provided no evidence that such disclosure was likely.
We agree with the district court that Frakes’ attenuated reason-
ing about whether an unidentified third party may or may not
divulge confidential information is unpersuasive.
Relators had little difficulty undermining Frakes’ position
on cross-examination. Frakes admitted that he could ask the
supplier not to identify any execution team members, but did
not know if this had been done. He also did not know if the
contract with the supplier contains any confidentiality or non-
disclosure provisions. In addition, Frakes acknowledged that
the inventory logs do not identify a supplier, but, rather, they
“contain information that ultimately could lead to identifying
the supplier.”
Frakes failed to prove that the records contain any informa-
tion which if disclosed would reasonably lead to the identity
of a team member. Frakes faced a weighty burden to prove
by clear and conclusive evidence that an exemption applies.
Frakes’ conclusory allegations that records here come within
an exemption are insufficient. The district court was well
within its discretion to issue a partial writ to compel Frakes to
produce these records. The court did not err in concluding that
Frakes failed to prove by clear and conclusive evidence that an
exemption applies.
Attorney Fees
Frakes argues the district court lacked jurisdiction to award
relators attorney fees and costs, because he had already filed
a notice of appeal and paid the docket fee. In addition, Frakes
argues that the award of attorney fees was improper, because
there is evidence that the relators’ expenses will be reim-
bursed by a third party. We find no merit to these assignments
of error.
- 803 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. BH MEDIA GROUP v. FRAKES
Cite as 305 Neb. 780
The district court issued orders on June 18, 2018, compel-
ling Frakes to disclose the records which did not identify an
execution team member on their face within 7 days. Frakes
appealed the next day. Relators timely filed motions to alter
or amend the judgments on June 27. Those motions asked the
district court to alter or amend the judgments to award attor-
ney fees and litigation costs to them pursuant to § 84-712.07,
as requested in their petitions. The court’s June 18 order was
silent on the issue of attorney fees and therefore implicitly
denied relators’ request. 51 As to the relators’ motions to alter
or amend, the district court found that it had jurisdiction over
the motions and awarded the relators reasonable attorney fees
and costs.
Where a request for attorney fees is made pursuant to state
law, attorney fees are generally treated as an element of court
costs, and an award of costs in a judgment is considered a
part of the judgment. 52 A party seeking statutorily authorized
fees must make a request for such fees prior to a judgment
in the cause. 53 If a postjudgment motion seeks a substantive
alteration of the judgment, a court may treat the motion as
one to alter or amend the judgment. 54 A motion to alter or
amend a judgment under Neb. Rev. Stat. § 25-1329 (Reissue
2016) must be filed no later than 10 days after the entry
of judgment.
[13] A motion to alter or amend a judgment is a “terminat-
ing motion” under Neb. Rev. Stat. § 25-1912(3) (Supp. 2017).
Pursuant to § 25-1912(3), when any terminating motion such
as a motion to alter or amend is timely filed, a notice of
appeal filed before the court announces its decision upon the
terminating motion shall have no effect, whether filed before
51
See Murray v. Stine, 291 Neb. 125, 864 N.W.2d 386 (2015).
52
Webb v. Nebraska Dept. of Health & Human Servs., 301 Neb. 810, 920
N.W.2d 268 (2018).
53
Id.
54
Clarke v. First Nat. Bank of Omaha, 296 Neb. 632, 895 N.W.2d 284
(2017).
- 804 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. BH MEDIA GROUP v. FRAKES
Cite as 305 Neb. 780
or after the timely filing of the terminating motion. That sec-
tion further states that a new notice of appeal shall be filed
within the prescribed time after the entry of the order ruling
on the motion. 55
Frakes admits that a timely filed motion to alter or amend
would have nullified his notice of appeal filed on June 19,
2018, but argues that relators’ motions were not motions to
alter or amend. To make this argument, Frakes mistakenly
claims that relators never made a request for attorney fees
prior to judgment. However, the record is clear that the rela-
tors requested attorney fees in their pleadings. A request for
attorney fees in a pleading is sufficient to comply with the
requirement that a party must request such fees prior to judg-
ment. 56 Relators’ motions to include an award for attorney
fees and costs sought substantive alteration of the judgments.
Additionally, relators’ motions were filed within 10 days of
the entry of the judgment. As a result, under § 25-912(3), the
motions to alter or amend caused Frakes’ notice of appeal to
have no effect. The district court had jurisdiction to award
relators attorney fees and costs.
Frakes further argues that the court erred in award-
ing fees because they were not “reasonably incurred by the
complainant.” 57 Section 84-712.07 provides that in any case
in which the complainant seeking access to public records has
substantially prevailed, the court may assess against the pub-
lic body which had denied access to their records reasonable
attorney fees and other litigation costs reasonably incurred by
the complainant. The record indicates that both OWH and LJS
offered affidavits setting forth their fee arrangement with their
counsel. The affidavits stated that OWH and LJS and their
counsel agreed that “Media of Nebraska, Inc. would pay the
55
See, Bryson L. v. Izabella L., 302 Neb. 145, 921 N.W.2d 829 (2019); State
v. Blair, 14 Neb. Ct. App. 190, 707 N.W.2d 8 (2005).
56
See, Webb, supra note 52; Murray, supra note 51; Olson v. Palagi, 266
Neb. 377, 665 N.W.2d 582 (2003).
57
§ 84-712.07.
- 805 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. BH MEDIA GROUP v. FRAKES
Cite as 305 Neb. 780
legal fees for the litigation.” Frakes therefore contends that the
relators “failed to offer any evidence they incurred any fees at
all. Instead, they established the fees were incurred by a third
party . . . .” 58 We disagree.
[14] On appeal, a trial court’s decision awarding or denying
attorney fees will be upheld absent an abuse of discretion. 59
Black’s Law Dictionary defines “‘incur’” as a verb meaning
“‘[t]o suffer or bring on oneself (a liability or expense).’” 60
Here, the district court found that relators had incurred a
fair and reasonable amount of attorney fees. Frakes does not
contest the reasonableness of the amount of fees awarded,
but merely argues that relators did not incur the fees because
another entity has agreed to pay those fees. We find no error in
the court’s decision. Billing records in evidence show that rela-
tors did incur attorney fees. Section 84-712.07 requires only
that the fees be “reasonably incurred.” There is no requirement
under § 84-712.07 that the fees be “‘actually incurred’” 61 by
the prevailing party. Relators incurred fees even if those fees
were later reimbursed by a third party. This assignment of error
is without merit.
Cross-Appeals
On cross-appeal, relators argue that the district court erred
in not ordering Frakes to redact confidential information con-
tained in the purchase orders and chemical analysis reports
and disclose the balance of such records in accordance with
§ 84-712.06. Relators’ cross-appeals raise an issue of first
impression under Nebraska law.
[15] Section 84-712.06 of the public records statutes requires
that “[a]ny reasonably segregable portion of a record shall be
58
Brief for appellant in cases Nos. S-19-027 through S-19-029 at 39.
59
TransCanada Keystone Pipeline v. Nicholas Family, 299 Neb. 276, 908
N.W.2d 60 (2018).
60
Id., 299 Neb. at 285, 908 N.W.2d at 67, quoting Black’s Law Dictionary
885 (10th ed. 2014).
61
See id. (interpreting Neb. Rev. Stat. § 76-726 (Reissue 2018)).
- 806 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. BH MEDIA GROUP v. FRAKES
Cite as 305 Neb. 780
provided to the public as a public record upon request after
deletion of the portions which may be withheld.” The FOIA
contains an analogous provision under 5 U.S.C. § 552(b). In
interpreting the FOIA, the Eighth Circuit has recognized that
agencies are required to disclose nonexempt portions of a
document, unless those nonexempt portions are inextricably
intertwined with exempt portions. 62 Effectively, each document
consists of “‘discrete units of information,’” all of which must
fall within a statutory exemption in order for the entire docu-
ment to be withheld. 63 The withholding of an entire document
by an agency is not justifiable simply because some of the
material therein is subject to an exemption. 64
The agency has the burden to show that the exempt por-
tions of the documents are not segregable from the nonex-
empt material. 65 The agency’s justification must be relatively
detailed, correlating specific parts of the requested documents
with the basis for the applicable exemption. 66 An agency
need not commit significant time and resources to the sepa-
ration of disjointed words, phrases, or even sentences which
taken separately or together have minimal or no information
content. 67 Ultimately, to carry its burden before the district
court, the agency must provide a reasonably detailed justifi-
cation rather than conclusory statements to support its claim
that the nonexempt material in a document is not reasonably
segregable. 68 When agencies demonstrate that the withheld
records are exempt in their entireties, courts have upheld the
62
Mo. Coalition for Environment v. U.S. Army Corps, 542 F.3d 1204 (8th
Cir. 2008).
63
Id. at 1212.
64
Id.
65
Id.
66
Id.
67
Mead Data Cent., Inc. v. U.S. Dept. of Air Force, 566 F.2d 242 (D.C. Cir.
1977).
68
See, id.; Schoenman v. F.B.I., 841 F. Supp. 2d 69 (D.D.C. 2012).
- 807 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. BH MEDIA GROUP v. FRAKES
Cite as 305 Neb. 780
determination that no segregation is possible. 69 The declara-
tions must provide the relator a “‘“meaningful opportunity
to contest, and the district court an adequate foundation to
review, the soundness of the withholding.”’” 70
Frakes did not argue that confidential portions of the with-
held documents are not segregable from nonexempt portions.
Frakes instead made the argument, rejected above, that the
documents were by definition wholly exempt from disclosure.
Although relators properly raised the issue, the district court
made no findings on the issue of segregability. Rather, the
district court conducted a different analysis by distinguishing
the withheld records between those which identified a team
member on their face and those which did not. This left unad-
dressed the argument raised by relators that under the public
records statutes nonexempt portions of the purchase orders and
chemical analysis reports should be disclosed.
Appellate courts may address the issue of segregability on
their own or may remand the matter to the district court to
make findings on the issue. 71 Here, it is clear that Frakes has
proved that an exemption applies to the names of execution
team members as well as any of their identifying informa-
tion, such as that person’s official title or contact information.
However, we find nothing in our record on appeal which sug-
gests that an exemption applies to the portions of the purchase
orders and chemical analysis reports which do not identify
an execution team member, and there is no evidence that the
exempt portions of the records are inextricably intertwined
with nonexempt portions. Nonexempt portions of those records
are not entitled to protection under § 83-967(2) and must be
disclosed pursuant to § 84-712.06.
69
See Jarvik v. C.I.A., 741 F. Supp. 2d 106 (D.D.C. 2010).
70
American Civil Liberties Union of Northern California, supra note 36, 202
Cal. App. 4th at 85, 134 Cal. Rptr. 3d at 495, quoting Wilderness Soc. v.
U.S. Dept. of Interior, 344 F. Supp. 2d 1 (D.D.C. 2004).
71
See Juarez v. Dept. of Justice, 518 F.3d 54 (D.C. Cir. 2008).
- 808 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. BH MEDIA GROUP v. FRAKES
Cite as 305 Neb. 780
On remand, the district court must order Frakes to pro-
duce nonexempt portions of the purchase orders and chemical
analysis reports after portions that may be withheld have been
redacted, such as an execution team member’s name, title,
home or work address, telephone number, or email address.
CONCLUSION
In cases Nos. S-18-604 through S-18-606, we dismiss the
appeals for lack of jurisdiction. In cases Nos. S-19-027 through
S-19-029, we affirm in part, and in part reverse and remand
with directions to issue appropriate writs in conformity with
this opinion.
Appeals in Nos. S-18-604 through S-18-606
dismissed.
Judgments in Nos. S-19-027 through S-19-029
affirmed in part, and in part reversed
and remanded with directions.
Papik, J., not participating.