Judges: WRITTEN BY: Don Stenberg, Attorney General Dale A. Comer, Assistant Attorney General
Filed Date: 8/2/1999
Status: Precedential
Modified Date: 7/5/2016
REQUESTED BY: Kate Witek
Nebraska Auditor of Public Accounts
Art.
In your opinion request letter, you indicate that the Nebraska State Patrol (the "Patrol") has requested certain information from your office in connection with the interim study authorized by Legislative Resolution No. 201. Specifically, you state that the Patrol is seeking access to reports filed with your office by County Drug Law Enforcement and Education Fund Boards (the "Boards") under Neb. Rev. Stat. §
You have posed several questions to us with respect to access by the Patrol to the reports prepared by the County Drug Law Enforcement and Education Fund Boards and your working papers. We will deal with each of your questions in turn.
Question No. 1. "Is the Auditor of Public Accounts required to disclose to the Nebraska State Patrol all reports that have been filed pursuant to Neb. Rev. Stat. §
28-1439.03 (1995)?"
At the outset, we are aware of no statutes which give the Patrol special access to the forfeiture reports at issue, and we assume that the Patrol does not seek those records under warrants as a part of a criminal investigation. Therefore, it appears to us that the Patrol's right to review the records grows out of the Nebraska Public Records Statutes, Neb. Rev. Stat. §§
The Nebraska Public Records Statutes generally allow interested persons in Nebraska the right to examine public records in the possession of public agencies during normal agency business hours, and to make memoranda and abstracts therefrom. Public records are defined under those statutes as ". . . all records and documents, regardless of physical form, of or belonging to this state, any county, . . . or any agency, branch, department, board, bureau, commission, subunit, or committee of any of the foregoing." Based upon this definition, it appears to us that the forfeiture reports in question are public records in the possession of your office.
While the Public Records Statutes provide for access to public documents, they are not absolute, and they provide for exceptions to disclosure by express and special provisions. Orrv. Knowles,
Our conclusion with respect to the availability of the forfeiture reports in question is supported by an another portion of the Public Records Statutes. Section
Question No. 2. "Is the Auditor of Public Accounts permitted to disclose to the Nebraska State Patrol all reports that have been filed pursuant to Neb. Rev. Stat. §
28-1439.03 (1995)?"
Since we concluded in response to your Question No. 1 that you are required to make the reports in question available to the Patrol under the Public Records Statutes, we believe that you are permitted to do so as well, and we are unaware of any statute which would specifically require you to keep those forfeiture reports confidential.
Question No. 3. "Under the circumstances described above, would the Auditor of Public Accounts be permitted or required to refuse to disclose to the Nebraska State Patrol a report filed pursuant to Neb. Rev. Stat. §
28-1439.03 (1995) when, in the judgment of the Auditor of Public Accounts the report contains information which had the potential of jeopardizing an investigation?"
Your opinion request letter sets out some additional information with respect to your Questions No. 3 and No. 4. You state:
We believe it is important to note that even though the statute requires the Boards to file a report which excludes any information which would jeopardize an ongoing investigation, on some occasions the filed reports have included information that, in our opinion, had the potential to jeopardize ongoing investigations. For instance, a report filed by a Board which simply contained the name of a Board member would have the potential of jeopardizing an investigation when the Board member is a representative of a law enforcement agency where he or she serves in an undercover investigative capacity.
This concern about jeopardizing an ongoing investigation presumably prompted your third and fourth questions.
The pertinent portion of §
The answer to your question regarding whether you are permitted to refuse to make a report available to the Patrol which contains information which might jeopardize on ongoing investigation turns upon whether there is some statute which expressly allows you to keep the information in question confidential.1 In that regard, §
Records developed or received by law enforcement agencies and other public bodies charged with duties of investigation or examination of persons, institutions or businesses, when the records constitute a part of the examination, investigation, intelligence information, citizen complaints or inquiries, informant identification, or strategic or tactical information used in laws enforcement training, . . .
Assuming that you have authority to investigate or examine the books and records of a county Drug Law Enforcement and Education Fund Board in the event that the Board's annual report evidenced a need for such an examination or investigation, we do not believe that the Board's annual report itself is a part of that investigation. Nor do we believe that the Board's report under those circumstances would otherwise fall under the provisions of §
Question No. 4. "Under the circumstances described above, would the Auditor of Public Accounts be permitted or required to refuse to disclose to a member of the public a report filed pursuant to Neb. Rev. Stat. §
28-1439.03 (1995) when, in the judgment of the Auditor of Public Accounts the report contains information which had the potential of jeopardizing an investigation?"
As we discussed above, the Patrol's right to access the reports at issue is based upon the Public Records Statutes, and the Patrol's rights in that regard are the same as the rights of interested members of the public. Consequently, our response to your Question No. 4 with respect to a member of the public is the same as our response to your Question No. 3 with respect to the Patrol. We do not believe that you are required or permitted to refuse to disclose a report filed pursuant to Neb. Rev. Stat. §
Question No. 5. "Is the Auditor of Public Accounts_required to disclose to the Nebraska State Patrol any working papers relating to reports that have been filed pursuant to Neb. Rev. Stat. §
28-1439.03 (1995) ?"
We understand that your Question No. 5 goes to the working papers of your staff related to reports filed pursuant to Neb. Rev. Stat. §
(1) All final audit reports issued by the Auditor of Public Accounts shall be maintained permanently as a public record in the office of the Auditor of Public Accounts. Working papers and other audit files maintained by the Auditor of Public Accounts are not public records and are exempt from sections
84-712 to84-712.05 . The information contained in working papers and audit files prepared pursuant to a specific audit is not subject to disclosure except to a county attorney or the Attorney General in connection with an investigation made or action taken in the course of the attorney's official duties. . . . .(2) If the Auditor of Public Accounts or any employee of the Auditor of Public Accounts knowingly divulges or makes known in any manner not permitted by law any records, document, or information, the disclosure of which is restricted by law, he or she is subject to the same penalties provided in section
84-712.09 .2
Based upon the clear language of §
Question No. 6. "Is the Auditor of Public Accounts permitted to disclose to the Nebraska State Patrol any working papers relating to reports that have been filed pursuant to Neb. Rev. Stat. §28-1439.03 (1995) ?"
Based upon the clear language of §
Sincerely yours,
DON STENBERG Attorney GeneralDale A. Comer Assistant Attorney General
Approved by:
Don Stenberg Attorney General 05-88-10.14