Nebraska

In the last few years, electronic issues in Nebraska have centered around whether an agency can hire a private contractor to handle its data. Debates on the issue began in 1995 after the State Library Commission contracted with a private entity to provide for electronic record access without first seeking legislative approval. In the 1996 legislative session, a law went into effect that created a committee charged with studying the entire area of access to electronic records. In 2000, the Nebraska Legislature passed a bill to deal specifically with electronic records. Because of the surrounding controversy, however, more legislation may continue to modify this area of the law. Since passage of the legislation, many questions have come up about what constitutes a “reasonable” fee for computer processing.

The law. Neb. Rev. Stat. § 84-712.01 defines public records for purposes of the public records statutes. Under that section, except where other statutes expressly provide that a record shall not be made public, public records are all records and documents, regardless of physical form, of or belonging to the state and its various political subdivisions, departments, boards and commissions. Under this definition, public records are broadly defined, and the scope of the bodies covered is also wide. Data that is a public record in original form remains so when maintained in a computer.
Legislation introduced in 2000 added information specifically about electronic records: Requesters have the statutory right to obtain copies of public records in any form in which the record is maintained or produced. This includes photocopies, print outs, electronic data, disks and tapes. Neb. Rev. Stat. § 84-712.01 (2000) provides in part: “Data which is a public record in its original form shall remain a public record when maintained in computer files.” Neb. Rev. Stat. § 84-712.01(2) more specifically provides that agencies may charge a fee for the reasonable cost of producing documents, including an approved fee for gateway services and other electronic media. By this reference, electronic data is included in the open records laws. Neb. Rev. Stat. § 84-712(3)(b).

A requester may designate any form in which the public record is maintained or produced, including, but not limited to, printouts, electronic data, discs, tapes and photocopies. Neb. Rev. Stat. § 84-712(3)(a). However, the agency need not produce or generate any record in a new or different form or format modified from the original form or format of the public record. Neb. Rev. Stat. § 84-712(3)(c). Also, persons may request copies only if the custodian has copying equipment reasonably available. Neb. Rev. Stat. § 84-712(3)(a). Persons also can choose a format for receiving records with regard to certain agencies whose records are available through Nebraska Online, a private online service.

An agency is not required to obtain computer capability to produce records “in a new or different form when that new form would require additional computer equipment or software not already possessed by the governmental entity.” § 84-712.01(2).

A requester may elect to receive a record in any form that the agency is capable of providing. No request may be denied on the grounds that the custodian has made or prefers to make the record available in another medium. Neb. Rev. Stat. § 84-1204 (1998).

An agency may deny a request for a record in a particular medium if the record is unreasonably complicated, if the medium is not one used by the agency, if complying with the request would cause undue time and expense or if the record in available from another source in the requested medium at a fee equal or lower to fees charged by the agency. § 84-1204.

A Task Force on Electronic Access to State Government assessed statutes and practices of state agencies regarding fees and access to records through electronic and other means. Neb. Rev. Stat. § 84- 713.05 (1998).

The legislature also has declared that agencies should use technology to provide access to records and cited the need for a uniform policy “regarding the management, operation and oversight of systems providing electronic access to records. § 84-1201 (1998). The State Records Board shall explore ways in which both the amount of records and accessibility may be improved through expanded electronic access. § 84-1204. The secretary of state may provide a computerized system for “inquiry and confirmation” of financing statement records. § 52-1316.

Cases & opinions. Except for source codes of computer programs, the computer database and all pertinent computer programming and instructions used by the state Department of Education pursuant to the Tax Equity and Educational Opportunities Support Act are public record. 1996 Neb. Op. Att’y. Gen. 74. On the other hand, computer “source files” or “dynamic application text files” which contain primarily alphanumeric characters, including punctuation and/or special characters used to control printing are not public records.

Birth and death records should be made available to the public under the public records statutes. Op. Att’y Gen. No. 91004, (Jan. 28, 1991); Neb. Op. Att’y Gen. No. 90039 (Nov. 20, 1990).

Fees. The statute mandates examination of records at no charge. § 84- 712.01 (1998). A custodian in a county with a population of 100,000 or more may charge a “reasonable fee” for transmitting a copy of a public record “from a modem to an outside modem.” The fee may include “a portion of the amortization of the cost of computer equipment, including software, necessarily added in order to provide such specialized service.” § 84-712.01(2). Fees will not be charged for inspection of financing statements on file for up to 10 name searches a day. Fees may be charged for each search in excess of 10 names a day. § 52-1316. The State Records Board may establish reasonable fees for electronic access to public records. The fees shall not exceed charges for records available through non-electronic means. State agencies may charge rates without board approval for unique, one-time requests for records “in an unusual format.” § 84-1204.

Section 84-712.01 (2) provides that the custodian of a public record of a county may charge a reasonable fee to members of the public for transmitting copies of public records held by that custodian from a modem to an outside modem. The fee in question must be based on the amortized portion of the cost of acquiring the computer equipment necessary to provide the service, and no county is required under the section to acquire new computer equipment or software to generate public records in a new or different form. This provision was added by LB 1275 in 1994 and amended by LB 628 in 2000.

Profit-making. The single greatest criticism of the contract between the Library Commission and Nebraska Online is that the private entity was allowed to set the fees for access. Future contracts will likely have fees set pursuant to legislation.

Special Cases. Motor vehicle records can be disclosed to the news media when the purpose fits within the general criteria of helping prevent crime or enhance safety. The law would also permit re-disclosure by publication of such information, if the story fits the criteria

Resources. Nebraska Attorney general guide to open records