Nebraska

Open Government Guide

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Author

Shawn D. Renner
Cline, Williams, Wright
Johnson & Oldfather
1900 U.S. Bank Building
233 South 13th Street
Lincoln, NE 68508
(402) 474-6900
srenner@clinewilliams.com

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Foreword

The public records statutes in Nebraska (Neb. Rev. Stat. §§84-712—84-712.09 (Reissue 2016 and 2017 Cum. Supp.)) employ the same basic format as the federal Freedom of Information Act, although the substance and some of the procedural mechanisms differ significantly. In other words, the Nebraska public records statutes begin with the presumption that all records belonging to the government are available for public inspection and copying, and then except out certain categories of records that need not be produced by government.

While access to government records in Nebraska is relatively straightforward, the reader should be aware that mere consultation of the specific statutes dealing with record access may be insufficient to resolve any given access question. The statute defining the basic public record framework excepts from public inspection particular information or records that other statutes make confidential. These statutory exceptions are not contained solely in the public records statutes, and are in fact scattered throughout the Nebraska Revised Statutes. No attempt has been made to address every conceivable record that might not be available to the public in this outline. Exceptions creating the most serious and frequent problems are addressed in detail, however, and the exceptions expressly contained in the public records statutes themselves are addressed.

The Nebraska Open Meetings Act, Neb. Rev. Stat. §§84-1408 to 84-1414 (Reissue 2014 and 2017 Supp.), was initially enacted in 1975. In enacting the Open Meetings Act, the Nebraska Legislature expressed its intent "that the formation of public policy is public business and may not be conducted in secret." Neb. Rev. Stat. §84-1408 (Reissue 2014). This "statutory commitment to openness in government" guarantees that "there will be development and maintenance of confidence, as well as participation, in our form of government as a democracy." Grein v. Board of Education, 216 Neb. 158, 163, 343 N.W.2d 718, 722 (1984).

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Open Records

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I. Statute

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A. Who can request records?

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1. Status of requester

Neb. Rev. Stat. §84-712 allows "all citizens of this state, and all other persons interested in the examination of the public records," to examine public records. Furthermore, Neb. Rev. Stat. §84-712.03 allows "any person" to seek redress for the wrongful withholding of records. Generally, the use of the term "person" in Nebraska statutes "includes bodies politic and corporate, societies, communities, the public generally, individuals, partnerships, joint stock companies, and associations." Neb. Rev. Stat. §49-801(16) (Reissue 2010).

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2. Purpose of request

The Nebraska public records statutes do not condition access on the purpose for which records are sought.

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3. Use of records

The statutes impose no specific limitations on use of information that is provided to the public.

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4. Can an individual request records on behalf of a third party or organization?

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B. Whose records are and are not subject to the Act

Neb. Rev. Stat. §84-712.01(1) provides that the term "public 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," unless any other statute expressly provides that particular records shall not be made public.

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1. Executive branch

As noted above, all records of all agencies are public unless there is a specific statute to the contrary. No statute specifies whether records of the executive department head (e.g., governor or mayor) are also included. To the extent such records are records belonging to the state, county or municipality, rather than to the executive, they should be considered public records.

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2. Legislative bodies

The definition of public records above appears to include records of legislative bodies as well. Neb. Const. Art. III, §11, however, provides "the Legislature shall keep a journal of its proceedings and publish them (except such parts as may require secrecy)."

The Legislature enacted an express exception to the public records statutes for “correspondence, memoranda, and records of telephone calls related to the performance of duties by a member of the Legislature, in whatever form.” Neb. Rev. Stat. §84-712.05(12). Creation of an exception for certain legislative records implies that the Legislature considers itself subject to the public records statutes.

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3. Courts

The definition of public records above appears to include records of courts as well. There is old Nebraska case law holding that the public records statutes apply to courts. See State ex rel. Griggs v. Meekes, 19 Neb. 106, 26 N.W. 620 (1886). Certain court records may be sealed pursuant to statute of Nebraska Supreme Court rule. The Attorney General has opined that briefs submitted to a judge are public records even though such documents are not filed with the Clerk of the Court. Neb. Op. Att'y Gen. 04030 (12-27-04).

In State ex rel. Veskrna v. Steel, 296 Neb. 581, 894 N.W.2d 788 (2017), the Court rejected an argument that the separation of powers doctrine precludes the Legislature from making judicial records subject to the public records statutes. The requester in the Steel case sought Judicial Branch Education records and the Court held that such records are public records unless some statute specifies that they are not, or unless the particular record sought falls under the “judicial deliberations privilege.”

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4. Nongovernmental bodies

Records of "tax-supported districts" that are not counties, cities, villages or political subdivisions are public records. Neb. Rev. Stat. §84-712.01(1). To the extent a group or body contains a quorum of a public body and the group reviews documents, those documents are probably public records pursuant to Neb. Rev. Stat. §84-1412(8).

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5. Multi-state or regional bodies

No law regarding records. The Attorney General has indicated that the Central Interstate Low-Level Radioactive Waste Commission, the administrative arm of an interstate compact, is not subject to the open meeting law. Presumably, the same rationale would apply to the public records law.

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6. Advisory boards and commissions, quasi-governmental entities

Records of advisory boards and commissions are public records to the extent they fit the definition in Neb. Rev. Stat. §84-712.01(1) which provides that the term "public records" "shall include all records and documents, regardless of physical form, of or belonging to . . . any agency, branch, department, board, bureau, commission, council, subunit, or committee of any of the foregoing," unless any other statute expressly provides that particular records shall not be made public.

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7. Others

Other subunits of state or local government must maintain public records to the extent they fit the definition in Neb. Rev. Stat. §84-712.01(1), which provides that the term "public records" "shall include all records and documents, regardless of physical form, of or belonging to . . . any agency, branch, department, board, bureau, commission, council, subunit, or committee of any of the foregoing," unless any other statute expressly provides that particular records shall not be made public.

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C. What records are and are not subject to the act?

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1. What kinds of records are covered?

The public records law defines public records in terms of records "belonging to" the state or its subdivisions. Thus, records in possession of the state or its subdivisions are public, regardless of how those records were acquired.

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2. What physical form of records are covered

Public records are defined "regardless of physical form." Neb. Rev. Stat. §84-712.01(1). "Data which is a public record in its original form shall remain a public record when maintained in computer files." Id.

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3. Are certain records available for inspection but not copying?

Unless some statute provides otherwise, persons interested may examine public records, request copies of them, or copy the records themselves. Neb. Rev. Stat. §84-712. If a person uses his own copying equipment to make copies, such copying must be done at the agency during normal business hours or at a location agreed to by the custodian. Neb. Rev. Stat. §84-712(1) and (2).

Neb. Rev. Stat. §25-1280 provides that public officials must provide a certified copy of public records upon request and payment of legal fees therefor.

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4. Telephone call logs

There is no express exception to the public records statutes for telephone call logs, although to the extent a call log would constitute a record of telephone calls related to the performance of duties by a member of the Legislature, it may be withheld pursuant to Neb. Rev. Stat. §84-712.05(12).

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5. Electronic records (e.g., databases, metadata)

“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(1). Requesters can obtain records in the form and media in which they are maintained, including “electronic data, discs [and] tapes . . . .” Id. If a record is maintained on the custodian’s website, the custodian need not provide a copy of it so long as he provides “the location of the public record on the internet to the requester.” Id. If a requester does not have reasonable access to the internet due to lack of computer, lack of internet availability or inability to use a computer or internet, the custodian must produce copies for the requester. Id.

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a. Can the requester choose a format for receiving records?

Yes. The party requesting the document 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 the state’s comprehensive website, Nebraska.gov.

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b. Can the requester obtain a customized search of computer databases to fit particular needs

Yes, for those agencies whose records are available through Nebraska.gov.

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c. Does the existence of information in electronic format affect its openness?

No. Neb. Rev. Stat. §84-712.01 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(3)(b) specifically contemplates that requesters may obtain “electronic data,” although the custodian may charge “reasonably calculated added cost of computer run time, any necessary analysis and programming . . . and the production of the report in the form furnished to the requester.”

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d. Online dissemination

Neb. Rev. Stat. §84-712(3)(b) acknowledges that electronic records can be disseminated online but provides no other guidance.

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6. Email

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7. Text messages and other electronic messages

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9. Computer software

Computer software is not addressed in the public records statutes. The Attorney General has opined that computer software is generally considered to be public record, subject to the exceptions contained in the public records statutes. Op. Atty. Gen. No. 96074 (Nov. 13, 1996). The Attorney General Opinion advises agencies that there may be “significant legal restrictions imposed by any copyright or trademark pertaining to the computer codes. . . .” Id. No statute, case law or Attorney General opinion addresses whether computer file metadata is a public record.

Metadata is not addressed in the public records statutes.

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10. Can a requester ask for the creation or compilation of a new record?

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D. Fee provisions

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1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

Neb. Rev. Stat. §84-712.01 allows the custodian to charge for copies, including the custodian's time involved in actually reproducing the documents, as long as the amount is the "actual cost." If persons make their own copies using their own equipment, there is no charge for making copies. Neb. Rev. Stat. §84-712.01(2) addresses methods of reproduction that may be used, such as electronic record storage, although the statute does not require any particular type of electronic storage of public records. The fee that the custodian may charge, however, will depend on the type of record requested and the form in which the record is stored.Photocopies: If the custodian has copying equipment that is reasonably available, the custodian may copy the public record and charge for the copies, but the fee may not exceed the reasonably calculated actual cost of the photocopies. The Attorney General has a policy of accepting any photocopy charge of $0.25 per page or less as the “actual cost.”

Computerized Data: If the reproduction is of computerized data or printouts on paper, the fee may not exceed the reasonably calculated actual cost of computer run time and the cost of the materials for making the copy.
Computerized Data: If the reproduction is of computerized data or printouts on paper, the fee may not exceed the reasonably calculated actual cost of computer run time and the cost of the materials for making the copy.
Electronic Data: The custodian may charge for the reproduction of electronic data, although the custodian, depending on how the electronic data is stored, may determine the cost of reproduction in one of two ways, but in either case, the custodian's charges may not exceed the reasonably calculated actual cost of reproduction:
1. the reasonably calculated actual cost or
2. by determining the cost of the following:
  1. the computer run time,
  2. any necessary analysis and programming, and
  3. the production of the report in the form furnished to the requester.
Modem: Counties that transmit a public record by modem may charge a reasonable fee for "such specialized service." The fee must be reasonable and may include a portion of the amortization of the cost of computer equipment and software necessary to provide the service. Although a county may transmit via modem, counties are not required to obtain specialized equipment to do so.
State Gateway Services: If a state agency provides electronic access to public records through a gateway service, the agency may obtain approval of the fee charged pursuant to Neb. Rev. Stat. §§84-1205.02 and 84-1205.03. The approved fee may include the cost for the gateway service.

Also, if the cost of production of documents is estimated by the custodian to exceed fifty dollars ($50), the custodian may require a deposit prior to fulfilling the request. Neb. Rev. Stat. §84-712(1)(d).

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2. Particular fee specifications or provisions

Persons may obtain copies of any public record, although custodians may charge the reasonably calculated actual cost for reproducing public records, which may include a "reasonably calculated" fee for the custodian's time to reproduce requested documents. Certified copies are available upon payment of cost of duplication, plus $1 for certificates. Neb. Rev. Stat. §25-1280 (Reissue 2016). Certified copies of birth, death, or marriage certificates cost $16. Neb. Rev. Stat. §71-612 (Reissue 2009). Claimants before the U.S. Veteran's Bureau or U.S. Bureau of Pensions may obtain certified copies free of charge. Neb. Rev. Stat. §84-712.02. The cost used as the basis for calculating a fee for records shall not include any charge for the salary or pay of a public employee with respect to the first four hours of searching, identifying, redacting or copying, but may charge a “special service charge” reflecting those labor costs for time required in excess of four cumulative hours. Id.

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3. Provisions for fee waivers

None. Neb. Rev. Stat. §84-712 provides that custodians “may” charge a fee for providing copies of public records, and some agencies decline to charge fees for requests that are not extensive or expensive to satisfy.

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4. Requirements or prohibitions regarding advance payment

If the cost of reproducing the records is estimated to exceed $50, the custodian may require the requester to furnish a deposit before fulfilling the request. Neb. Rev. Stat. §84-712(3)(f).

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5. Have agencies imposed prohibitive fees to discourage requesters?

“Prohibitive” is relative; some requesters have opined that some agencies sometimes charge excessive fees in order to discourage requesters. Under Neb. Rev. Stat. §84-712.01(2), it is a violation of statute to impose a fee that exceeds the reasonably calculated actual cost for reproducing the requested documents.

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6. Fees for electronic records

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E. Who enforces the Act?

The public records statutes can be enforced by a lawsuit brought by a dissatisfied requester or by the Attorney general. Neb. Rev. Stat. §84-712.03.

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1. Attorney General's role

Any person denied access to a record may petition the attorney general to review the matter to determine whether the record may be withheld from public inspection. The attorney general may order the custodian to disclose the record. If the custodian refuses, the requester may file suit or may demand that the attorney general do so. Neb. Rev. Stat. §84-712.03.

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2. Availability of an ombudsman

Nebraska has a State Ombudsman, but he has no role in enforcing the public records statutes.

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3. Commission or agency enforcement

No such provision in the law.

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F. Are there sanctions for noncompliance?

In a suit brought by a requester, the court may award attorney fees if the requester has "substantially prevailed." Neb. Rev. Stat. §84-712.07. Violation of the public records statutes is a Class III misdemeanor, and any official who violates the statutes may be removed or impeached. Neb. Rev. Stat. §84-712.09.

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G. Record-holder obligations

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1. Search obligations

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2. Proactive disclosure requirements

Agencies and public bodies are allowed, but generally not required, to make categories of information available on a website, without request. A substantial exception to that general principle is the Taxpayer Transparency Act, Neb. Rev. Stat. § 84-602.01 to 84-602.04. That Act requires the State Treasurer to develop and maintain a website “with information on state receipts, expenditures of state funds, and contracts which is accessible by the public at no cost to access . . . .” Specifically:

(b) The State Treasurer shall, in appropriate detail, cause to be published on the web site:

(i) The identity, principal location, and amount of state receipts received or expended by the State of Nebraska and all of its state entities;

(ii) The funding or expending state entity;

(iii) The budget program source;

(iv) The amount, date, purpose, and recipient of all expenditures of state funds; and

(v) Such other relevant information as will further the intent of enhancing the transparency of state government financial operations to its citizens and taxpayers. The web site shall include data for fiscal year 2008-09 and each fiscal year thereafter, except that for any state entity that becomes subject to this section due to the changes made by Laws 2018, LB 851, the web site shall include data for such state entity for fiscal year 2016-17 and each fiscal year thereafter.

Neb. Rev. Stat. § 84-602.04(2)(b).

The Treasurer’s website must contain a link to the website of the State Department of Administrative Services, which website must contain:

(i) A data base that includes a copy of each active contract that is a basis for an expenditure of state funds, including any amendment to such contract and any document incorporated by reference in such contract. For purposes of this subdivision, amendment means an agreement to modify a contract which has been reduced to writing and signed by each party to the contract, an agreement to extend the duration of a contract, or an agreement to renew a contract. The data base shall be accessible by the public and searchable by vendor, by state entity, and by dollar amount. All state entities shall provide to the Department of Administrative Services, in electronic form, copies of such contracts for inclusion in the data base beginning with contracts that are active on and after January 1, 2014, except that for any state entity that becomes subject to this section due to the changes made by Laws 2016, LB 851, such state entity shall provide copies of such contracts for inclusion in the data base beginning with contracts that are active on and after January 1,2017; and

(ii) A data base that includes copies of all expired contracts which were previously included in the data base described in subdivision (4)(a)(i) of this section and which have not been disposed of pursuant to policies and procedures adopted under subdivision (4)(e) of this section. The data base required under this subdivision shall be accessible by the public and searchable by vendor, by state entity, and by dollar amount.

Neb. Rev. Stat. § 84-602.04(4)(a)(i) and (ii). There are numerous contracts which are exempted from these requirements, and information otherwise made confidential state or federal law must be redacted from contracts.

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3. Records retention requirements

The Nebraska Records Management Act, Neb. Rev. Stat. §84-1201 et seq. (Reissue 2014) designates the Secretary of State as the State Records Administrator and requires him to review and approve record retention schedules for State agencies.

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4. Provisions for broad, vague, or burdensome requests

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II. Exemptions and other legal limitations

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A. Exemptions in the open records statute

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1. Character of exemptions

The public records statutes presume that government records are public, "except where any other statute expressly provides that particular information or records shall not be made public." Neb. Rev. Stat. §84-712.01(1) (emphasis added). The attorney general has opined that the list of records that may be withheld from public inspection under Neb. Rev. Stat. §84-712.05 are not "exemptions" to the public record statutes; i.e., the categories of records set out in that section (and discussed below) are still public records, but they may be kept confidential at the discretion of their custodian. Op. Att'y. Gen. No. 94080 (Oct. 14, 1994). Additionally, various other statutes dealing with particular records exist. There is no general "public interest" exception for withholding records.

The exceptions contained in the public records statutes are discretionary. Records falling within those exceptions "may be withheld from the public by the lawful custodian of the records." Neb. Rev. Stat. §84-712.05. Records that might otherwise be withheld must be made available for inspection if they have been "publicly disclosed in an open court, open administrative proceeding, or open meeting, or disclosed by a public entity pursuant to its duties." Id. Record withholding pursuant to specific statutes other than the public records statutes may be either discretionary or mandatory.

The exceptions are not directly patterned after the Federal Freedom of Information Act.

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2. Discussion of each exemption

The following types of records, unless previously disclosed in "an open court, open administrative proceeding, or open meeting, or disclosed by a public entity pursuant to its duties," may be withheld from the public (Neb. Rev. Stat. §84-712.05(1) to (20)):

"Personal information in records regarding a student, prospective student, or former student of any educational institution or exempt school that has effectuated an election not to meet state approval or accreditation requirements pursuant to section 79-1601 when such records are maintained by and in the possession of a public entity, other than routine directory information specified and made public consistent with 20 U.S.C. 1232g, as such section existed on February 1, 2013, and regulations adopted thereunder."
"Medical records, other than records of births and deaths and except as provided in subdivision (5) of this Section, in any form concerning any person, and also records of elections filed under section 44-2821 and patient safety work product under the Patient Safety Improvement Act;"
"Trade secrets, academic and scientific research work which is in progress and unpublished, and other proprietary or commercial information which if released would give advantage to business competitors and serve no public purpose;"
"Records which represent the work product of an attorney and the public body involved which are related to preparation for litigation, labor negotiations, or claims made by or against the public body, or which are confidential communications as defined in section 27-503 [attorney/client privilege];"
"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 law enforcement training, except that this subdivision shall not apply to records so developed or received relating to the presence of and amount or concentration of alcohol or drugs in any body fluid of any person;"
"Appraisals or appraisal information and negotiation records, concerning the purchase or sale, by a public body, of any interest in real or personal property, prior to completion of the purchase or sale;"
"Personal information in records regarding personnel of public bodies other than salaries and routine directory information;"
"Information solely pertaining to protection of the security of public property and persons on or within public property, such as specific, unique vulnerability assessments or specific unique response plans, either of which is intended to prevent or mitigate criminal acts the public disclosure of which would create a substantial likelihood of endangering public safety or property; computer or communications network schemes, passwords, and user identification names; guard schedules; lock combinations; or public utility infrastructure specifications or design drawings the public disclosure of which would create a substantial likelihood of endangering public safety or property, unless otherwise provided by state or federal law;"
"The security standards, procedures, policies, plans, specifications, diagrams, access lists, and other security-related records of the Lottery Division of the Department of Revenue and those persons or entities with which the division has entered into contractual relationships. Nothing in this subdivision shall allow the division to withhold from the public any information relating to amounts paid persons or entities with which the division has entered into contractual relationships, amounts of prizes paid, the name of the prize winner, and the city, village, or county where the prize winner resides;"
"With respect to public utilities and except as provided in sections 43-512.06 and 70-101, personally identified private citizen account payment and customer use information, credit information on others supplied in confidence, and customer lists;"
"Records or portions of records kept by a publicly funded library which, when examined with or without other records, reveal the identity of any library patron using the library's materials or services;"
"Correspondence, memoranda, and records of telephone calls related to the performance of duties by a member of the Legislature. The lawful custodian of such correspondence, memoranda, and records of telephone calls, whether created prior to, on, or after April 2, 1993, upon approval of the Executive Board of the Legislative Council, shall release such correspondence, memoranda, and records of telephone calls which are not designated as sensitive or confidential in nature pursuant to subsection (3) of section 81-1120.27 to the person the Executive Board of the Legislative Council has contracted with pursuant to section 50-401.04. A member's correspondence, memoranda, and records of telephone calls related to the performance of his or her legislative duties shall only be released to any other person with the explicit approval of the member;"
"Records or portions of records kept by public bodies which would reveal the location, character, or ownership of any known archaeological, historical, or paleontological site in Nebraska when necessary to protect such site from a reasonably held fear of theft, vandalism, or trespass. This section shall not apply to the release of information for the purpose of scholarly research, examination by other public bodies for the protection of the resource or by recognized tribes, the Unmarked Human Burial Sites and Skeletal Remains Protection Act, or the federal Native American Graves Protection and Repatriation Act;"
"Records or portions of records kept by public bodies which maintain collections of archaeological, historical, or paleontological significance which reveal the names and addresses of donors of such articles of archaeological, historical, or paleontological significance unless the donor approves disclosure, except as the records or portions thereof may be needed to carry out the purposes of the Unmarked Human Burial Sites and Skeletal Remains Protection Act or the federal Native American Graves Protection and Repatriation Act."
"Job application materials submitted by applicants, other than finalists or a priority candidate for a position described in Section 85-106.06 selected using the enhanced public scrutiny process in Section 85-106.06, who have applied for employment by any public body as defined in section 84-1409. For purposes of this subdivision, (a) job application materials means employment applications, resumes, reference letters, and school transcripts, and (b) finalist means any applicant who is not an applicant for a position described in Section 85-106 and (i) who reaches the final pool of applicants, numbering four or more, from which the successful applicant is to be selected, (ii) who is an original applicant when the final pool of applicants numbers less than four, or (iii) who is an original applicant and there are four or fewer original applicants;”
“Records obtained by the Public Employees Retirement Board pursuant to Section 84-1512;”
"Social security numbers, credit card, charge card, or debit card numbers and expiration dates; and financial account numbers supplied to state and local governments by citizens."
“Information exchanged between a jurisdictional utility and city pursuant to section 66-1867.”
“Draft records obtained by the Nebraska Retirement Systems Committee of the Legislature and the Governor from Nebraska Public Employees Retirement Systems pursuant to subsection (4) of section 84-1503;” and
“All prescription drug information submitted pursuant to Section 71-2454, all data contained in the prescription drug monitoring system, and any report obtained from data contained in the prescription drug monitoring system.”

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B. Other statutory exclusions

The provisions of the public records law may be overridden "where any other statute expressly provides that particular information or records shall not be made public." Neb. Rev. Stat. §84-712.01(1) (emphasis added).

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C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

There are no court-derived or common law exclusions or exceptions to the public records law. But see the Nebraska Supreme Court rule dealing with sealing certain court documents in connection with closing a hearing to the public and the Nebraska Supreme Court's "Guidelines For Use By Nebraska Courts in Determining When and Under What Conditions a Hearing Before Such Court May Be Closed In Whole or In Part To The Public" (1986).

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D. Protective orders and government agreements to keep records confidential

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E. Interaction between federal and state law

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1. HIPAA

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2. DPPA

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3. FERPA

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4. Other

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F. Segregability requirements

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G. Agency obligation to identify basis of redaction or withholding

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III. Record categories - open or closed

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A. Autopsy and coroners reports

No specific exception. Autopsy reports may not be public if the autopsy is performed as part of a law enforcement investigation. No statute directly addresses access to coroner’s reports. Some counties have taken the position that such reports are not public under the medical records exception and investigation exception.

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B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)

No specific exception. To the extent an inspection or investigation is conducted by a law enforcement agency or other public body charged with duties of examination of persons, institutions or businesses, investigative records may be withheld. Neb. Rev. Stat. §84-712.05(5).

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C. Bank records

The public records statutes provide no access to records in the possession of a bank, as a bank is generally not considered to be part of government. To the extent bank records are in the possession of some governmental agency other than the Department of Banking, they may be withheld from the public if an exception described in Neb. Rev. Stat. §84-712.05 applies. The name of a depositor or debtor of a bank and the amount of his deposit or debt to anyone may not be disclosed by the Nebraska Department of Banking and Finance, except that the department may give information regarding a borrower's total indebtedness to any bank owning obligations of the borrowers. Neb. Rev. Stat. §8-112 (Cum. Supp. 2017).

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D. Budgets

Budget documents relating to government bodies ought to be public records, as no statutory exceptions would apply.

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E. Business records, financial data, trade secrets

Trade Secrets may be withheld.

Proprietary or commercial information in the hands of government is excepted from public record access if release "would give advantage to business competitors and serve no public purpose." Neb. Rev. Stat. §84-712.05(3). In Aksamit Resource Management, LLC v. Nebraska Public Power District, 299 Neb. 114, 907 N.W.2d 301 (2018), the Supreme Court made it clear that the “no public purpose” language does not permit balancing competitive advantage with possible public purposes, and if a public purpose is identified, proprietary information may not be withheld. Business records and financial data relating to government operations are ordinarily open for public inspection:

"Sections 84-712 to 84-712.03 shall be liberally construed whenever any state, county or political subdivision fiscal records, audit, warrant, voucher, invoice, purchase order, requisition, payroll, check, receipt or other record of receipt, cash or expenditure involving public funds is involved in order that the citizens of this state shall have full rights to know of, and have full access to information on the public finances of the government and the public bodies and entities created to serve them." Neb. Rev. Stat. §84-712.01(2).

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F. Contracts, proposals and bids

"Appraisals or appraisal information and negotiation records, concerning the purchase or sale, by a public body, of any interest in real or personal property, prior to completion of the purchase or sale" are exempt from disclosure. Neb. Rev. Stat. §84-712.05(6).

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G. Collective bargaining records

"Records which represent the work product of an attorney and the public body involved which are related to preparation for litigation, labor negotiations, or claims made by or against the public body, or which are confidential communications as defined in section 27-503 [attorney/client privilege]" are exempt from disclosure. Neb. Rev. Stat. §84-712(05)(4).

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H. Economic development records

No statute addresses public status of economic development records. In Frederick v. City of Falls City, 289 Neb. 864, 857 N.W.2d 569 (2015), the Supreme Court adopted a “functional equivalency test” and concluded that a non-profit corporation which had an economic development relationship with a city was not subject to the public records statues.

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I. Election Records

Lists of all persons voting in a county are open to public inspection. Neb. Rev. Stat. §32-937 (Reissue 2016). Applications for absentee ballots and absentee voter books are open to public inspection. Neb. Rev. Stat. §32-948 (Reissue 2016).

The Voter Registration Register is available for public inspection but may not be copied. Neb. Rev. Stat. §32-330 (Reissue 2016). A list of registered voters minus personal identification information is available for sale by the Secretary of State.

Returns may not be released until polls close. Neb. Rev. State. §32-1545 (Reissue 2016). Election results are public record although the Secretary of State may charge a fee. Neb. Rev. Stat. §32-1036 (Reissue 2016).

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J. Emergency Medical Services records

No statutory or case law.

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K. Gun permits

Information concerning an applicant or permitholder under the Concealed Handgun Permit Act is not public record. Neb. Rev. Stat. §69-2444 (Reissue 2009).

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L. Homeland security and anti-terrorism measures

The recent amendment of an existing exception to the Act, Neb. Rev. Stat. sec. 84-712.05(8), which has been in existence for many years, now allows the withholding of:

Information solely pertaining to protection of the security of public property and persons on or within public property, such as specific, unique vulnerability assessments or specific, unique response plans, either of which is intended to prevent or mitigate criminal acts the public disclosure of which would create a substantial likelihood of endangering public safety or property; computer or communications network schema, passwords, and user identification names; guard schedules; lock combinations; or public utility infrastructure specifications or design drawings the public disclosure of which would create a substantial likelihood of endangering public safety or property, unless otherwise provided by state or federal law.

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M. Hospital reports

Fiscal records of state, county or city hospitals are public. Medical records of individuals are not. Reports relating to Peer Reviews are not public. Neb. Rev. Stat. §25-12,123 (Reissue 2016).

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N. Personnel records

Personal information in records regarding personnel of public bodies other than salaries and routine directory information is not public. Neb. Rev. Stat. §84-712.05(7).

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1. Salary

Salaries of public employees are public record. Neb. Rev. Stat. §84-712.05(7).

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2. Disciplinary records

May be withheld. Neb. Rev. Stat. §84-712.05(7).

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3. Applications

Job application materials for persons who are finalists for employment by public bodies are public. Neb. Rev. Stat. §84-712.05(15). Job application materials of applicants for positions of CEO of the University of Nebraska and Chancellors of the four University campuses are not public. Id.

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4. Personally identifying information

May be withheld. Neb. Rev. Stat. §84-712.05(7).

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5. Expense reports

There is no law on point.

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6. Evaluations/performance reviews

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7. Complaints filed against employees

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8. Other

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O. Police records

To the extent police records constitute part of an examination, investigation, intelligence information, citizen complaints or inquiries, informant identification or strategic information used in law enforcement training, they are not public. Neb. Rev. Stat. §84-712.05(5).

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1. Accident reports

Accident reports prepared by law enforcement officers are public records, but reports prepared by persons involved in the accident are not. Neb. Rev. Stat. §60-699(4) (Reissue 2009).

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2. Police blotter

Police blotters are public records. Neb. Rev. Stat. §29-3521 (Reissue 2016).

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3. 911 tapes

911 tapes may be withheld to the extent that they constitute investigatory records.

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4. Investigatory records

Investigatory records may be withheld from the public. Neb. Rev. Stat. §84-712.05(5).

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5. Arrest records

Arrest records should be public after an arrest warrant has been served.

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6. Compilations of criminal histories

Complete criminal history record information is generally public, Neb. Rev. Stat. §29-3520 (Reissue 2016), although criminal history information may be made non-public under certain circumstances when a prosecution does not result in a conviction.

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7. Victims

There is no law on point. To the extent victim information is part of an investigative record it may be withheld.

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8. Confessions

There is no law on point. To the extent a confession is part of an investigative record it may be withheld.

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9. Confidential informants

There is no law on point. To the extent information about a confidential informant is part of an investigative record it may be withheld.

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10. Police techniques

There is no law on point.

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11. Mugshots

Mug shots are public. Neb. Rev. Stat. §29-3521 (Reissue 2014).

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12. Sex offender records

Information obtained under the Sex Offender Registration Act is generally not confidential, although certain information may only be disclosed to law enforcement agencies. Neb. Rev. Stat. §29-4009 (Reissue 2014).

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13. Emergency medical services records

There is no law on point.

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14. Police video (e.g, body camera footage, dashcam videos)

“Records developed or received by law enforcement agencies and other public bodies” in the course of investigations, for intelligence purposes, pursuant to citizen complaints, with respect to law enforcement training, or in the course of identifying an informant are exempt from disclosure, presumably including records constituting body-worn camera footage. Neb. Rev. Stat. Ann. § 84-712.05(5). However, it is incumbent upon the agency to release any “reasonably segregable public portion of a record,” meaning that exempt body-worn camera footage must be redacted and the rest released, where appropriate. Neb. Rev. Stat. Ann. § 84-712.06. As recently as 2023, Nebraska lawmakers led a push to enact legislation that would significantly expand public access to body-worn camera footage through the state’s public records law, though the bill was not passed.

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15. Biometric data (e.g., fingerprints)

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16. Arrest/search warrants and supporting affidavits

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17. Physical evidence

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P. Prison, parole and probation reports

Individual prisoners’ files are confidential. Neb. Rev. Stat. §83-178 (Reissue 2014). Reports regarding conditions of confinement should be public record. See Neb. Rev. Stat. §83-4,131 (Reissue 2014). Pre-sentence investigation reports are confidential. Neb. Rev. Stat. §29-2261(6) (Reissue 2014).

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Q. Professional licensing records

Not addressed in public records statutes.

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R. Public utility records

Personally identified private citizen account payment and customer use information, credit information on others supplied in confidence, and customer lists are not public. Neb. Rev. Stat. §84-712.05(10).

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S. Real estate appraisals, negotiations

Appraisals or appraisal information and negotiation records concerning the purchase or sale, by a public body, of an interest in real or personal property, prior to completion of the purchase or sale. Neb. Rev. Stat. §84-712.05(6) (Reissue 2014).

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1. Appraisals

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2. Negotiations

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3. Transactions

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4. Deeds, liens, foreclosures, title history

Are public records.

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5. Zoning records

Are public records.

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T. School and university records

Personal information in records regarding students is not public, other than routine directory information. Neb. Rev. Stat. §84-712.05(1) (Reissue 2014)

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1. Athletic records

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2. Trustee records

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3. Student records

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4. School foundation/fundraising/donor records

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5. Research material or publications

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6. Other

There is no law on point.

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U. State guard records

Investigation records maintained by the Nebraska State Patrol may be withheld from the public. Neb. Rev. Stat. § 84-712.05(5).

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V. Tax records

Tax records possessed by the Nebraska Tax Commissioner are generally confidential. Neb. Rev. Stat. § 77-2115.

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W. Vital Statistics

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1. Birth certificates

Are public records, although requester must have a “proper purpose.” Neb. Rev. Stat. §71-612 (Reissue 2009).

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2. Marriage and divorce

Marriage records are public. Neb. Rev. Stat. §71-612 (Reissue 2009). Court records concerning divorces are public.

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3. Death certificates

Are public records, although requester must have a “proper purpose.” Neb. Rev. Stat. §71-612 (Reissue 2009).

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4. Infectious disease and health epidemics

Medical records of individuals are not public. Otherwise, not addressed by public records statutes.

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IV. Procedure for obtaining records

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A. How to start

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1. Who receives a request?

Requests should be made to persons with custody of the desired record(s). If the custodian is unknown, the request should be directed to the director of the agency or head of public body.

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2. Does the law cover oral requests?

Nothing in the law prohibits oral requests. For a variety of practical reasons, however, written requests are preferable.

Inspection of documents must occur during ordinary business hours. If someone copies documents using their own photocopying equipment, the copies must be made on the premises of the custodian or at a location mutually agreed to by the custodian and the person requesting the copies. Neb. Rev. Stat. §84-712(2).

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3. Required contents of a written request

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4. Can the requester choose a format for receiving records?

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5. Availability of expedited processing

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B. How long to wait

Neb. Rev. Stat. §84-712(4) specifies that the custodian must respond to a written record request "as soon as practicable and without delay, but not more than four business days after actual receipt of the request." Although the custodian may have as many as four days following the receipt of the records request, a response may come more quickly, particularly if the request is routine or not exceptionally difficult or extensive.

There is an exception to Neb. Rev. Stat. §84-712(4) for requests that cannot with reasonable good faith efforts be fulfilled within the four-day deadline because the request is exceptionally difficult to fulfill or the request is too extensive. In this case, the custodian must, within the four-day time frame, provide a written explanation of why the custodian cannot comply with the deadline and must identify (1) the earliest practicable date for furnishing the copies, (2) an estimate of the expected cost, and (3) an opportunity for the requester to modify or prioritize the request.

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1. Statutory, regulatory or court-set time limits for agency response

Neb. Rev. Stat. §84-712(4) specifically requires an agency to comply with a written request "as soon as is practicable and without delay, but not more than four business days after actual receipt of the request."

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2. Informal telephone inquiry as to status

Not addressed in public records statutes, but may be useful.

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3. Is delay recognized as a denial for appeal purposes?

As long as the custodian sends a written explanation within four business days after actual receipt of the request that explains the reason for the delay in complying with the request, the delay will not be treated as a denial for litigation purposes.

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4. Any other recourse to encourage a response

If an agency refuses to respond to a written request for documents, there are several options:

File an action in district court for speedy relief by a mandamus action.
File a petition with the attorney general to review the matter to determine whether the custodian has failed to comply with the public records statutes. If the attorney general orders the custodian to disclose the record, and the agency fails to do so, the individual denied may sue in court or demand in writing that the attorney general sue the agency within fifteen (15) days.

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C. Administrative appeal

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1. Time limit to file an appeal

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2. To whom is an appeal directed?

There is no statutory procedure for appeal within the agency denying the request. An informal "appeal," initiated by writing in a letter to the superior of the person denying the request, is occasionally effective.

There is no state commission or ombudsman to handle or oversee public records issues.

A person denied rights under the public records law may "petition the attorney general to review the record and determine whether it may be withheld from public inspection." Neb. Rev. Stat. §84-712.03. There are no formal requirements for this "petition," but it should identify the record withheld, include a copy of the agency's denial letter, refer to any statutory authority that the requester feels compels access and request action pursuant to §84-712.03. The "petition" may simply be a letter to the attorney general.

Under §84-712.03, the attorney general must determine whether access should be granted within 15 calendar days of submission of the petition. If it is determined that the record may not be withheld, the attorney general must order the public body to immediately disclose the record. Id. If the public body continues to withhold the record, the requester may bring suit or demand, in writing, that the attorney general bring suit in the name of the state. If such demand is made, the attorney general must bring suit within 15 calendar days. The requester has an absolute right to intervene in any suit brought by the attorney general. Id.

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3. Fee issues

None specified.

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4. Contents of appeal

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5. Waiting for a response

Not addressed.

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6. Subsequent remedies

If the public body continues to withhold the record, the requester may bring suit or demand, in writing, that the attorney general bring suit in the name of the state.

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D. Additional dispute resolution procedures

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1. Attorney General

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2. Ombudsperson

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3. Other

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E. Court action

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1. Who may sue?

"Any person" denied rights granted by the public records law may seek a writ of mandamus, compelling disclosure of the record. Neb. Rev. Stat. §84-712.03(1). In addition, under §84-712.03(2), if the attorney general determines that withheld records should be made public, he must demand that the custodian disclose the records. If the custodian does not comply with the attorney general's direction, the attorney general must bring suit in the name of the state. The requester has an absolute right to intervene in any suit brought by the attorney general. Id.

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2. Priority

Neb. Rev. Stat. §84-712.03 provides in part: "Proceedings arising under this section, except as to the cases the court considers of greater importance, shall take precedence on the docket over all other cases and shall be assigned for hearing, trial, or argument at the earliest practicable date and expedited in every way."

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3. Pro se

Action may be brought pro se. It is probably better to petition the attorney general rather than to bring a pro se action.

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4. Issues the court will address

"In any suit filed under this section, the court has jurisdiction to enjoin the public body from withholding records, to order disclosure, and to grant such other equitable relief as may be proper." Neb. Rev. Stat. §84-712.03.

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a. Denial

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b. Fees for records

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c. Delays

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d. Patterns for future access (declaratory judgment)

No law.

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5. Pleading format

No statutory provision regarding pleading of public record violation. See Neb. Rev. Stat. §25-2156 to 25-2169 (Reissue 2016) for general mandamus requirements.

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6. Time limit for filing suit

No limitation period is stated in public records statutes. A four-year statute of limitations probably applies. See Neb. Rev. Stat. §25-212 (Reissue 2016) ("An action for relief not hereinbefore provided for can only be brought within four years after the cause of action.") A requester failing to bring suit within a reasonable time may be guilty of laches.

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7. What court?

Suit must be filed "in the district court within whose jurisdiction the state, county, or political subdivision officer who has custody of the public record can be served." Neb. Rev. Stat. §84-712.03.

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8. Burden of proof

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9. Judicial remedies available

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10. Litigation expenses

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a. Attorney fees

The court can assess reasonable attorney fees in a case in which the complainant has substantially prevailed. Neb. Rev. Stat. § 84-712.07.

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b. Court and litigation costs

The court can assess litigation costs reasonably incurred by the complainant if he or she has substantially prevailed.

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11. Fines

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12. Other penalties

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13. Settlement, pros and cons

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F. Appealing initial court decisions

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1. Appeal routes

From district court to Nebraska Court of Appeals. See Neb. Rev. Stat. §24-1106 (Reissue 2016).

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2. Time limits for filing appeals

Notice of appeal and docket fee must be filed with clerk of district court within one month after judgment. Neb. Rev. Stat. §25-1912 (Reissue 2016). For time limits on filing transcript, bill of exceptions and briefs in Court of Appeals, see Neb. Rev. Stat. §25-1912 (Reissue 2016) and Neb. Sup. Ct. R.§§ 2-104, 2-105 and 2-109.

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3. Contact of interested amici

Neb. Court of Appeals may allow amici participation, at its discretion. See Neb. Sup. Ct. R. 9 and 11. Persons seeking amici assistance should contact Nebraska Press Association and Nebraska Broadcasters Association. In addition, the Reporters Committee for Freedom of the Press sometimes files amicus briefs in cases involving significant media law issues before a state's highest court.

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G. Addressing government suits against disclosure

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Open Meetings

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I. Statute - basic application

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A. Who may attend?

"The public" has a right to attend all or any part of a meeting of a "public body," except closed sessions as defined by statute. Neb. Rev. Stat. §84-1412. There is no statutory or court definition of "the public," but the phrase does include "the media." Grein v. Board of Education, 216 Neb. 158, 163, 343 N.W.2d 718, 722 (1984).

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B. What governments are subject to the law?

The Open Meetings Act (Neb. Rev. Stat. §§84-140 to 1414 (Reissue 2014 and 2017 Cum. Supp) applies to various "public bodies" (see below) of state, county and local governments, including "governing bodies" of all political subdivisions, the governing bodies of all agencies of the executive department that are created pursuant to state law, and all independent boards, commissions, bureaus, committees, councils, subunits or any other bodies created pursuant to state law. Neb. Rev. Stat. §84-1409.

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1. State

See above.

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2. County

See above.

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3. Local or municipal

See above.

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C. What bodies are covered by the law?

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1. Executive branch agencies

The statute does not specifically address application to chief executive officers, such as governor or mayor, but would apply to such individuals to the extent they are members of bodies referred to below. Statute applies to "governing bodies" of all state executive agencies, Neb. Rev. Stat. §84-1409 (1)(a)(ii), "governing bodies" of all political subdivisions, executive or otherwise, §84-1409 (1)(a)(i), all study or advisory committees of the executive department of the state, §84-1409 (1)(a)(iv), and advisory committees of "governing bodies" of all political subdivisions, executive or otherwise, §84-1409 (1)(a)(v).

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a. What officials are covered?

The Open Meetings Act applies to “public bodies,” not individual officials.

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b. Are certain executive functions covered?

See above.

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c. Are only certain agencies subject to the act?

See above.

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2. Legislative bodies

The Nebraska Legislature and its committees are not expressly subject to the Open Meetings Act, although one writer has opined to the contrary. See Note, Nebraska Unicameral Rule 3, Section 15: To Whom Must the Door Be Open? 64 Neb. L. Rev. 282 (1985). Neb. Const. Art. III, §11, provides "the doors of the Legislature and of Committees of the Whole, shall be open, unless when the business shall be such as ought to be kept secret." Rule 3, §16, Rules of Nebraska Unicameral Legislature (2018), provides that executive sessions of legislative committees may be closed to general public, but open to "members of the news media."

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3. Courts

The Open Meetings Act does not apply to courts, "unless a court or other judicial body is exercising rulemaking authority, deliberating, or deciding upon the issuance of administrative orders." Neb. Rev. Stat. §84-1409. The Nebraska Attorney General has opined that quasi-judicial proceedings conducted by entities that would otherwise be considered "public bodies" are not subject to the Open Meetings Act. See Op. Att'y Gen. No. 99046 (11-15-99); Op. Att'y Gen. No. 93065 (7-27-93); Op. Att'y Gen. No. 210 (5-11-84). Neb. Const. Art. I, §13, states "All courts shall be open . . . ." Neb. Rev. Stat. §24-1001 provides, "All judicial proceedings of all courts established in this state must be open to the attendance of the public unless otherwise specified by statute." Nebraska Supreme Court has promulgated "Guidelines For Use By Nebraska Courts in Determining When and Under What Conditions a Hearing Before Such Court May Be Closed In Whole or In Part To The Public" (1986).

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4. Nongovernmental bodies receiving public funds or benefits

County agricultural societies, which are private corporations that receive tax funds, are public bodies subject to Open Meetings Act. Nixon v. Madison Co. Ag. Soc'y, 217 Neb. 37, 348 N.W.2d 119 (1984). Rule of cited case appears to have broad application. The Open Meetings Act includes within the definition of "public body" "instrumentalities exercising essentially public functions." Neb. Rev. Stat. §84-1409(1)(vi).

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5. Nongovernmental groups whose members include governmental officials

No law. To the extent the non-governmental group includes governmental officials who constitute a quorum of some “public body”, the meetings would probably be considered a meeting of the public body and the Public Meetings Law would apply.

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6. Multi-state or regional bodies

No case law. There is a serious federal constitutional question whether a state can unilaterally enforce its laws against an agency created by an interstate compact of which the state is a member and to which Congress has given its consent. The Nebraska Attorney General has opined that the open meeting law does not apply to the Central Interstate Low-Level Radioactive Waste Commission, an administrative body created by an interstate compact. Op. Att'y Gen. No. 89008 (2-14-89).

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7. Advisory boards and commissions, quasi-governmental entities

Advisory Committees of public bodies at both state and local level are subject to the Open Meetings Act. Neb. Rev. Stat. §84-1409(1)(a)(v).

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8. Other bodies to which governmental or public functions are delegated

"Instrumentalities exercising essentially public functions" are subject to law. Neb. Rev. Stat. §84-1409(1)(a)(vi).

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9. Appointed as well as elected bodies

Open Meetings Act draws no distinctions between elected and appointed positions or bodies. The Open Meetings Act applies to appointed bodies, as well as elected bodies. §84-1409(1)(a)(iii) and (iv).

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D. What constitutes a meeting subject to the law

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1. Number that must be present

Open Meetings Act does not define number of members of public body that must be present, nor does it define a quorum, or the effect of absence of a quorum. The Open Meetings Act does not apply to subcommittees of public bodies "unless a quorum of the public body attends a subcommittee meeting." Nev. Rev. Stat. §84-1409(1)(b)(i). Particular statutes governing individual boards, agencies or public bodies may define such requirements.

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a. Must a minimum number be present to constitute a "meeting"?

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b. What effect does absence of a quorum have?

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2. Nature of business subject to the law

Meetings of public bodies "for the purposes of briefing, discussion of public business, formation of tentative policy, or the taking of any action by the public body," are subject to Open Meetings Act. Neb. Rev. Stat. §84-1409(2).

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a. "Information gathering" and "fact-finding" sessions

If a quorum of the public body is present, the open meetings law applies to information gathering or fact-finding sessions. "Meeting means all regular, special, or called meetings, formal or informal, of any public body for the purposes of briefing, discussion of public business, formation of tentative policy, or the taking of any action of the public body." Neb. Rev. Stat. §84-1409(2).

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b. Deliberation toward decisions

These should be covered by the Open Meetings Act. See above ("discussion of public business" and "formation of tentative policy").

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3. Electronic meetings

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a. Conference calls and video/Internet conferencing

Neb. Rev. Stat. §84-1411(2) (Cum. Supp. 2017) allows videoconference meetings for various statewide public bodies, subject to certain restrictions (i.e., no more than one-half of bodies' meetings in a calendar year may be by videoconference, and at least one member of body must be present at each site of the videoconference). Neb. Rev. Stat. §84-1411 (3) allows the telephonic meetings for various or regional state-wide bodies, subject to similar restrictions. Emergency meetings of public bodies may be held "by means of electronic or teleconferencing equipment." Neb. Rev. Stat. §84-1411(4) (Cum. Supp. 2017).

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b. E-mail

No law, but Neb. Rev. Stat, §84-1411(5) (Cum. Supp. 2017) allows emergency meetings by "electronic . . . equipment."

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c. Text messages

There is no law on point. The Attorney General has opined that text messages exchanged by the Mayor and members of the Omaha City Council during a Council Meeting are public records. Disposition Letter, Leslie Donley to Michael Cox, dated 5-14-15.

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d. Instant messaging

There is no law on point.

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There is no law on point.

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E. Categories of meetings subject to the law

Neb. Rev. Stat. §84-1409(2) makes "all regular, special, or called meetings, formal or informal, of any public body for the purposes of briefing, discussion of public business, formation of tentative policy, or the taking of any action of the public body," subject to the terms of the Open Meetings Act.

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1. Regular meetings

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a. Definition

The definition of regular meetings, together with notice publication requirements, are sometimes contained in separate statutes governing each individual board, agency, etc.

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b. Notice

Public bodies subject to Open Meetings Act must give "reasonable advance publicized notice of the time and place of each meeting by a method designated by each public body and recorded in its minutes." Neb. Rev. Stat. §84-1411(1) (Cum. Supp. 2017).

Open Meetings Act requires only that "reasonable advance . . . notice" be given. What is reasonable remains a question of interpretation, but should be more than a posting in three public places at 10:00 p.m. the evening before a special meeting. Pokorny v. City of Schuyler, 202 Neb. 334, 275 N.W.2d 281 (1979). Separate statutes governing particular public bodies may contain more specific requirements.

Notice must be given to "public" generally. Additionally, "the secretary or other designee of each public body shall maintain a list of the news media requesting notification of meetings and shall make reasonable efforts to provide advance notification to them of the time and place of each meeting and the subjects to be discussed at the meeting." Neb. Rev. Stat. §84-1411(4) (Cum. Supp. 2017).

Notice must contain agenda of subjects known at time of publicized notice, or else statement that current agenda is available for public inspection at principal office of public body. Neb. Rev. Stat. §84-1411(1) (Cum. Supp. 2017). Agenda may not be altered within 24 hours of meeting, except for "items of an emergency nature." Id.

Meeting held pursuant to inadequate notice may be declared void by district court. Neb. Rev. Stat. §84-1414(1) (Cum. Supp. 2017); Pokorny v. City of Schuyler, 202 Neb. 334, 275 N.W.2d 287 (1979). Court may award attorney fees to party successfully attacking inadequate notice. §84-1414(3). Knowing violation of statute by member of public body is a Class IV misdemeanor for first violation, Class III misdemeanor for second and subsequent violations. Neb. Rev. Stat. §84-1414(4).

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c. Minutes

Minutes must show time, place, members present and absent, and the substance of all matters discussed. Neb. Rev. Stat. §84-1413(1). Minutes must state how each member voted on roll call vote. Neb. Rev. Stat. §84-1413(2).
Minutes are public records. "The minutes of all meetings and evidence and documentation received or disclosed in open session shall be public records and open to public inspection during normal business hours." Neb. Rev. Stat. §84-1413(4). Minutes are available for public inspection within 10 working days after meeting or prior to next convened meeting, whichever is earlier. Neb. Rev. Stat. §84-1413(5).

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2. Special or emergency meetings

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a. Definition

No specific definition of special or emergency meeting. However, the nature of the emergency must be stated in the minutes. Neb. Rev. Stat. §84-1411(5) (Cum. Supp. 2017).

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b. Notice requirements

No specific notice requirements for emergency meetings, except news media must be informed. Neb. Rev. Stat. §84-1411(5) (Cum. Supp. 2017).

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c. Minutes

In addition to the time, place, members present and absent, the substance of all matters discussed and how each member voted on roll call vote, the nature of emergency and any formal action taken must be listed in minutes and must be available to public no later than end of the next business day following the emergency meeting. Neb. Rev. Stat. §84-1411(5) (Cum. Supp. 2017).

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3. Closed meetings or executive sessions

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a. Definition

"Any public body may hold a closed session by the affirmative vote of a majority of its voting members if a closed session is clearly necessary for the protection of the public interest or for the prevention of needless injury to the reputation of an individual and if such individual has not requested a public meeting." Neb. Rev. Stat. §84-1410(1). Statute offers nonexclusive, illustrative examples of reasons for closed session. See Section II of this outline below.

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b. Notice requirements

Proposed closed session should be included in agenda, unless it is properly considered an emergency. Neb. Rev. Stat. §84-1411(1) (Cum. Supp. 2017).

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c. Minutes

"The vote of each member on the question of holding a closed session, the reason for the closed session, and the time when the closed session commenced and concluded shall be recorded in the minutes." Neb. Rev. Stat. §84-1410(2). While the minutes must include the information detailed in Neb. Rev. Stat. §84-1410(2), no other information needs to be provided in the minutes of a closed meeting. See Neb. Op. Att'y Gen. No. 98045 (11-3-98) (providing that minutes of all matters discussed need not be kept when a public body is meeting in closed or executive sessions).

The Nebraska Attorney General ruled that a public body in closed session need not keep minutes of the closed meeting discussion in part because the minutes are a matter of public record and therefore would defeat the purpose of a closed meeting. Neb. Op. Att'y Gen. No. 98045 (11-3-98).

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d. Requirement to meet in public before closing meeting

"The vote to hold a closed session shall be taken in open session." Neb. Rev. Stat. §84-1410(2).

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e. Requirement to state statutory authority for closing meetings before closure

Yes. “The subject matter and the reason necessitating the closed session shall be identified in the motion to close.” Neb. Rev. Stat. §84-1410 (1). "The entire motion, the vote of each member on the question of holding a closed session, and the time when the closed session commenced and concluded shall be recorded in the minutes." Neb. Rev. Stat. §84-1410(2) (Reissue 2014). “If the motion to close passes, then the presiding officer immediately prior to the closed session shall restate on the record the limitation of the subject matter of the closed session.” Neb. Rev. Stat. §84-1410(2).

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f. Tape recording requirements

The Open Meetings Act does not require a public body to tape record closed sessions.

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F. Recording/broadcast of meetings

All or any part of a meeting of a public body, except for closed sessions, discussed below, may be videotaped, televised, photographed, broadcast, or recorded by any person in attendance by means of a tape recorder, camera, video equipment, or any other means of pictorial or sonic reproduction or in writing. Neb. Rev. Stat. §84-1412(1). Public body may make and enforce "reasonable rules" regarding conduct of persons attending, videotaping, televising, photographing, broadcasting or recording its meetings. Neb. Rev. Stat. §84-1412(2).

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1. Sound recordings allowed

All or any part of a meeting of a public body, except for closed sessions may be videotaped, televised, photographed, broadcast, or recorded by any person in attendance by means of a tape recorder, camera, video equipment, or any other means of pictorial or sonic reproduction or in writing.

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2. Photographic recordings allowed

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G. Access to meeting materials, reports and agendas

“Public bodies shall make available at the meeting…for examination and copying by members of the public at least one copy of all reproducible written material to be discussed at an open meeting.” Neb. Rev. Stat. §84-1412(8).

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H. Are there sanctions for noncompliance?

Neb. Rev. Stat. sec. 84-1414(4) makes it a Class IV misdemeanor for first offense and a Class III misdemeanor for second and subsequent offenses for any member of a public body who knowingly violates or conspires to violate the open meetings law, or who remains at a meeting knowing that the public body is violating the law.

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II. Exemptions and other legal limitations

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A. Exemptions in the open meetings statute

The exemption provision of Open Meetings Act, allowing closed or executive sessions, is contained in Neb. Rev. Stat. §84-1410 (Cum. Supp. 2004).

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1. Character of exemptions

Closed session is allowed generally by majority vote of members of public body, "if a closed session is clearly necessary for the protection of the public interest or for the prevention of needless injury to the reputation of an individual and if such individual has not requested a public meeting." Neb. Rev. Stat. §84-1410(1). The law provides that, "[c]losed sessions may be held for, but shall not be limited to, such reasons as" those listed in the specific exemptions. Neb. Rev. Stat. §84-1410(1).

The "public interest" under §84-1410, "is that shared by citizens in general and by the community at large concerning pecuniary or legal rights and liabilities." Grein v. Board of Education, 216 Neb. 158, 164, 343 N.W.2d 718, 723 (1984). Where public finances are involved, the "public interest" ordinarily demands an open meeting. Id. The reputation to be protected may not be that of the public body, and "slight discomfort" to an individual is insufficient to overcome the presumption of openness. Id.

Closure is discretionary with the public body, subject to the limits of the Open Meetings Act. The Open Meetings Act does not require closure. Neb. Rev. Stat. §84-1410(4).

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2. Description of each exemption

Open Meetings Act allows for closed sessions where the closed session is "clearly necessary for the protection of the public interest or for the prevention of needless injury to the reputation of an individual." The Open Meetings Act then lists nonexclusive examples deemed to meet this standard. Those examples are discussed below.

Strategy sessions. Neb. Rev. Stat. §84-1410(1)(a) allows public body to meet in closed session for "[s]trategy sessions with respect to collective bargaining, real estate purchases, pending litigation, or litigation which is imminent evidenced by communication of a claim or threat of litigation to or by the public body."

Discussion of security. Neb. Rev. Stat. §84-1410(1)(b) allows public body to meet in closed session for "[d]iscussion regarding deployment of security personnel or devices."

Investigating crime. Neb. Rev. Stat. §84-1410(1)(c) allows public body to meet in closed session for "[i]nvestigative proceedings regarding allegations of criminal misconduct."

Job performance evaluation. Neb. Rev. Stat. §84-1410(1)(d) allows public body to meet in closed session for "[e]valuation of the job performance of a person when necessary to prevent needless injury to the reputation of a person and if such person has not requested a public meeting."

Election or appointment of new member. A closed session may not be held for purposes of "discussion of the appointment or election of a new member to any public body." Neb. Rev. Stat. §84-1410(1).

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B. Any other statutory requirements for closed or open meetings

Closed sessions may be held only upon the affirmative vote of a majority of members of the public body, in open session. The entire motion, the vote of each member on the closure question, and the time when the closed session commenced and concluded, must be stated in the minutes. Closed session discussion is restricted to consideration of matters set forth in minutes as reason for closed session. Open session must be reconvened before any formal action may be taken. An individual member of the public body may challenge closure if discussion exceeds stated reason for closed session. A public body may not fail to invite members, or rely on chance meetings, social gatherings or electronic communications to circumvent statutory provisions. Neb. Rev. Stat. §84-1410.

A vote in open session without discussion, following closed session, may be mere rubber stamping of decisions actually reached in closed session, and violates Open Meetings Act. Grein v. Board of Education, supra. Good faith motivation is not cure for noncompliance with Open Meetings Act, nor is it defense to lawsuit seeking nullification of action taken at illegal closed session. Id.

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C. Court mandated opening, closing

There are no statutory provisions for court mandated closing of meetings.

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III. Meeting categories - open or closed

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A. Adjudications by administrative bodies

Neb. Rev. Stat. §84-1409(1)(b)(ii) provides that “entities conducting judicial proceedings” are not public bodies for purposes of the public meeting laws. In McQuinn v. Douglas County School District No. 66, 259 Neb. 720, 612 N.W. 2d 198 (2000), the Court held that a school board exercises judicial functions when it decides a question of adjudicative fact or if a statute requires it to act in a judicial manner, and concluded that a school board holding a hearing to decide whether or not to renew a probationary teacher’s conflict acts judicially and that such hearing is not subject to the Open Meetings Act. Neb. Rev. Stat. §84-1410(1) states that a closed session is allowed generally by majority vote of members of public body, "if a closed session is clearly necessary for the protection of the public interest or for the prevention of needless injury to the reputation of an individual and if such individual has not requested a public meeting."

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1. Deliberations closed, but not fact-finding

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2. Only certain adjudications closed, i.e. under certain statutes

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B. Budget sessions

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C. Business and industry relations

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D. Federal programs

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E. Financial data of public bodies

No specific exemption. But, the "public interest" ordinarily demands that discussions of financial data be open to the public. Grein v. Board of Education, 216 Neb. 158, 164, 343 N.W.2d 718, 723 (1984).

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F. Financial data, trade secrets, or proprietary data of private corporations and individuals

No specific exemption, but see Grein v. Board of Education, 216 Neb. 158, 164, 343 N.W.2d 718, 723 (1984). Where public finances are involved, the "public interest" ordinarily demands an open meeting. Id. The reputation to be protected may not be that of the public body, and "slight discomfort" to an individual is insufficient to overcome the presumption of openness. Id.

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G. Gifts, trusts and honorary degrees

No specific exemption.

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H. Grand jury testimony by public employees

No specific exemption. However, a closed session is allowed generally by majority vote of members of public body, "if a closed session is clearly necessary for the protection of the public interest or for the prevention of needless injury to the reputation of an individual and if such individual has not requested a public meeting." Neb. Rev. Stat. §84-1410(1).

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I. Licensing examinations

No specific exemption.

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J. Litigation, pending litigation or other attorney-client privileges

Neb. Rev. Stat. §84-1410(1)(a) allows public body to meet in closed session for "[s]trategy sessions with respect to collective bargaining, real estate purchases, pending litigation, or litigation which is imminent evidenced by communication of a claim or threat of litigation to or by the public body." Id.

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K. Negotiations and collective bargaining of public employees

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1. Any sessions regarding collective bargaining

See above.

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2. Only those between the public employees and the public body

See above.

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L. Parole board meetings, or meetings involving parole board decisions

No specific exemption. However, the privacy exemption might apply. See Neb. Rev. Stat. §84-1410(1). The Nebraska Attorney General has opined that parole hearings before the Nebraska Parole Board are quasi-judicial proceedings that are not subject to the Open Meetings Act. Op. Att'y Gen. No. 63065 (7-27-93).

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M. Patients, discussions on individual patients

No specific exemption.

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N. Personnel matters

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1. Interviews for public employment

No specific exemption. However, a closed session is allowed generally by a majority vote of members of public body, "if a closed session is clearly necessary for the protection of the public interest or for the prevention of needless injury to the reputation of an individual and if such individual has not requested a public meeting." Neb. Rev. Stat. §84-1410(1). The attorney general has opined that interviews by public bodies of applicants for public employment must take place in open session. Op. Att'y Gen. No. 94035 (5-11-94).

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2. Disciplinary matters, performance or ethics of public employees

Neb. Rev. Stat. §84-1410(1)(d) allows a public body to meet in closed session for "[e]valuation of the job performance of a person when necessary to prevent needless injury to the reputation of a person and if such person has not requested a public meeting."

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3. Dismissal, considering dismissal of public employees

Neb. Rev. Stat. §84-1410(1)(d) allows public body to meet in closed session for "[e]valuation of the job performance of a person when necessary to prevent needless injury to the reputation of a person and if such person has not requested a public meeting."

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O. Real estate negotiations

Negotiations for purchase of land need not be conducted at an open meeting, but deliberations of public body as to whether an offer to purchase real estate should be made should take place in an open meeting. Pokorny v. City of Schuyler, supra.

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P. Security, national and/or state, of buildings, personnel or other

Neb. Rev. Stat. §84-1410(1)(b) allows public body to meet in closed session for "[d]iscussion regarding deployment of security personnel or devices."

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Q. Students, discussions on individual students

No specific exemption. However, the provision allowing a closed session for prevention of needless injury to the reputation of an individual might apply. See Neb. Rev. Stat. §84-1410(1).

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IV. Procedure for asserting right of access

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A. When to challenge

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1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?

Open Meetings Act does not provide for pre-meeting challenge of contemplated closed session, although request to attorney general may operate in that way.

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2. When barred from attending

Closed meeting is void if successful suit filed within 120 days of meeting. Closed meeting is voidable if successful suit filed after 120 days from meeting, but before one year after meeting. Suit is time-barred if not filed within one year of meeting. Neb. Rev. Stat. §84-1414(1).

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3. To set aside decision

Actions taken may be voidable if successful suit filed after 120 days from meeting, but before one year after meeting. Suit is time-barred if not filed within one year of meeting. Neb. Rev. Stat. §84-1414(1).

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4. For ruling on future meetings

Open Meetings Act does not provide for ruling on future meetings. As a matter of equity law, court may not enjoin future violations of Open Meetings Act unless reasonable probability of specific future violations is proved. Grein v. Board of Education, 343 N.W.2d 718 (1984).

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5. Other

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B. How to start

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1. Where to ask for ruling

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a. Administrative forum

No specific administrative forum provided, although letter to public body pointing out violation is occasionally successful.

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b. State attorney general

The county attorney for the county in which the public body meets and the Nebraska Attorney General "shall enforce the provisions of" the Open Meetings Act. Neb. Rev. Stat. §84-1414(2). There is no specific enforcement procedure stated. A letter informing the county attorney or attorney general of violations should be sufficient.

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c. Court

"Any citizen of this state" may sue in district court in the county in which the public body meets to seek compliance with Open Meetings Act. Neb. Rev. Stat. §84-1414(3).

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2. Applicable time limits

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3. Contents of request for ruling

No statutory requirements as to contents. Rules issued by the Nebraska Supreme Court, "Nebraska Rules of Pleading in Civil Actions," govern pleadings in civil cases. If complaining party files suit, such action must comply with general rules governing civil cases.

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4. How long should you wait for a response

No time limits for response stated in statute. A two-to-three week response period should be sufficient in administrative forum. Issuance of a Disposition Letter by the Attorney General ordinarily takes a month or so. Resolution on merits in court will take longer.

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5. Are subsequent or concurrent measures (formal or informal) available?

No statutory authority. Ultimate subsequent measure is filing suit in district court.

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C. Court review of administrative decision

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1. Who may sue?

"Any citizen of this state" may sue in district court in county in which public body meets to seek compliance with Public Meeting Law. Neb. Rev. Stat. §84-1414(3).

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2. Will the court give priority to the pleading?

No provision for expedited review. Depends on judge.

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3. Pro se possibility, advisability

Complaining party may bring case pro se. It is probably wiser to ask the county attorney or attorney general to bring suit. Members should inquire to Nebraska Press Association or Nebraska Broadcasters Association.

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4. What issues will the court address?

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a. Open the meeting

Although there is no specific statutory authority, it is possible that a party may be able to obtain a temporary restraining order against a contemplated violation of Open Meetings Act.

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b. Invalidate the decision

A court may declare a decision that violates law void. Neb. Rev. Stat. §84-1414(1).

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c. Order future meetings open

Probably not.

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5. Pleading format

Nebraska Rules of Pleading in Civil Actions govern pleadings in civil cases. If complaining party files suit, such action must comply with general rules governing civil cases.

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6. Time limit for filing suit

Suit is time-barred if not filed within one year of meeting. Neb. Rev. Stat. §84-1414(1).

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7. What court?

District court for county in which public body meets. Neb. Rev. Stat. §84-1414(3).

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8. Judicial remedies available

A court may declare decision in illegal closed session void. Neb. Rev. Stat. §84-1414(1). Although there is no specific statutory authority, a party may be able to obtain a temporary restraining order against a contemplated violation of Open Meetings Act.

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9. Availability of court costs and attorney's fees

Court may award court costs and attorney’s fees to successful plaintiff. Neb. Rev. Stat. §84-1414(3).

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10. Fines

Knowing violation of Open Meetings Act is Class IV misdemeanor for first violation and Class III misdemeanor for second and subsequent violations. Neb. Rev. Stat. §84-1414(4). Maximum penalty for Class IV misdemeanor is $500 fine; no imprisonment available. Neb. Rev. Stat. §28-106(1). Maximum penalty for Class III misdemeanor is three months imprisonment, $500 fine, or both. Id.

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11. Other penalties

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D. Appealing initial court decisions

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1. Appeal routes

From district court to Nebraska Court of Appeals. See Neb. Rev. Stat. §24-1106 (Reissue 2016).

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2. Time limits for filing appeals

Notice of appeal and docket fee must be filed with clerk of district court within one month after judgment. Neb. Rev. Stat. §25-1912(Reissue 2016). For time limits on filing transcript, bill of exceptions and briefs in Court of Appeals, see Neb. Rev. Stat. §25-1912 (Reissue 2016) and Neb. Sup. Ct. R. §§2-101, 2-102, 2-104, 2-105 and 2-109.

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3. Contact of interested amici

Neb. Court of Appeals may allow amici participation, at its discretion. See Neb. Sup. Ct. R. §§2-109 and 2-111. Persons seeking amici assistance should contact Nebraska Press Association and Nebraska Broadcasters Association. In addition, the Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state's highest court.

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V. Asserting a right to comment

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A. Is there a right to participate in public meetings?

The public has the right to attend and the right to speak at meetings of public bodies except for closed sessions. Neb. Rev. Stat. §84-1412(1). The governing body, however, is authorized to make and enforce "reasonable rules and regulations regarding the conduct of persons attending, speaking at . . . its meetings" and may choose to prevent citizen comments at a meeting. But, the body "may not forbid public participation at all meetings." Neb. Rev. Stat. §84-1412(2). The public body may not refuse admission to any member of the public for failure to identify themselves, but the public body may require any member of the public to identify himself or herself before addressing the public body. Neb. Rev. Stat. §84-1412(3).

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B. Must a commenter give notice of intentions to comment?

No statutory requirement to give notice of intentions to comment, although an individual public body may make and enforce reasonable rules and regulations regarding the conduct of citizens attending or speaking at the meeting, which, if reasonable, may include the requirement that the commentator give notice of intention to comment. Neb. Rev. Stat. §84-1412(2).

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C. Can a public body limit comment?

Presumably, a public body can limit comment if the public body determines that this is a reasonable rule or regulation regarding the meeting. Neb. Rev. Stat. §84-1412(2).

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D. How can a participant assert rights to comment?

No statutory guidance, although a public body may establish reasonable rules and regulations regarding how a participant asserts his or her rights to comment.

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E. Are there sanctions for unapproved comment?

No authority.

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Appendix

Model letter for records request

Dear [Custodian of Records]:

This is a request for [access to] [copies of] the public records described below, made pursuant to the Nebraska public records statutes, Neb. Rev. Stat. §§84-712 et seq. [and, if applicable, the Nebraska Criminal History Information Act, Neb. Rev. Stat. §§29-3520 and 3521].

I desire [access to] [copies of] the following records:

[Here, describe the records sought with as much detail as possible.]

I understand that you may charge a fee not exceeding the actual cost of making the copies available, and I agree to pay such fee. If the cost of the copies sought in this request will exceed $____________, please let me know that before making the copies.

Pursuant to Section 84-712, you are required to provide the [access] [copies] requested in this letter within four business days from your receipt of this letter, or else provide the written explanation required by that statute.

While I am confident that the records requested are public records under the statutes, if for any reason you deny this request, please provide the information required by Section 84-712.04, specifically:

(a) A description of the contents of the records withheld and a statement of the specific reasons for the denial, correlating specific portions of the records to specific reasons for the denial, including citations to the particular statute and subsection thereof expressly providing the exception under section 84-712.01 relied on as authority for the denial;

(b) The name of the public official or employee responsible for the decision to deny the request; and

You may transmit the copies to the address listed above. I am preparing news information for current publication and it is therefore important to me that I receive the requested records in a timely manner. If there is anything I can do to clarify this request for you, or otherwise assist your fulfillment of this request, you can reach me at [telephone number].

Thank you for your attention.

Sincerely,

[Name]

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Open Government Guide

Author

Foreword

Open Records

I. Statute

A. Who can request records?

1. Status of requester

2. Purpose of request

3. Use of records

4. Can an individual request records on behalf of a third party or organization?

B. Whose records are and are not subject to the Act

1. Executive branch

2. Legislative bodies

3. Courts

4. Nongovernmental bodies

5. Multi-state or regional bodies

6. Advisory boards and commissions, quasi-governmental entities

7. Others

C. What records are and are not subject to the act?

1. What kinds of records are covered?

2. What physical form of records are covered

3. Are certain records available for inspection but not copying?

4. Telephone call logs

5. Electronic records (e.g., databases, metadata)

a. Can the requester choose a format for receiving records?

b. Can the requester obtain a customized search of computer databases to fit particular needs

c. Does the existence of information in electronic format affect its openness?

d. Online dissemination

6. Email

7. Text messages and other electronic messages

8. Social media posts

9. Computer software

10. Can a requester ask for the creation or compilation of a new record?

D. Fee provisions

1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

2. Particular fee specifications or provisions

3. Provisions for fee waivers

4. Requirements or prohibitions regarding advance payment

5. Have agencies imposed prohibitive fees to discourage requesters?

6. Fees for electronic records

E. Who enforces the Act?

1. Attorney General's role

2. Availability of an ombudsman

3. Commission or agency enforcement

F. Are there sanctions for noncompliance?

G. Record-holder obligations

1. Search obligations

2. Proactive disclosure requirements

3. Records retention requirements

4. Provisions for broad, vague, or burdensome requests

II. Exemptions and other legal limitations

A. Exemptions in the open records statute

1. Character of exemptions

2. Discussion of each exemption

B. Other statutory exclusions

C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

D. Protective orders and government agreements to keep records confidential

E. Interaction between federal and state law

1. HIPAA

2. DPPA

3. FERPA

4. Other

F. Segregability requirements

G. Agency obligation to identify basis of redaction or withholding

III. Record categories - open or closed

A. Autopsy and coroners reports

B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)

C. Bank records

D. Budgets

E. Business records, financial data, trade secrets

F. Contracts, proposals and bids

G. Collective bargaining records

H. Economic development records

I. Election Records

J. Emergency Medical Services records

K. Gun permits

L. Homeland security and anti-terrorism measures

M. Hospital reports

N. Personnel records

1. Salary