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Nebraska Public Records Statutes
The Nebraska Public Records Statutes provides citizens of this state with the guarantee that public government records stay public.& The description below details NEB. REV. STAT. -- 84-712 THROUGH 84-712.09 (1999, CUM. SUPP. 2006, Supp. 2007).
BASIC PROVISIONThe basic rule for open public records in ' 84-712. That statute provides: "Except as otherwise expressly provided by statute, all citizens of this state, and all other persons interested in the examination of the public records . . . are hereby fully empowered and authorized to (a) examine the same, and make memoranda, copies using their own copying or photocopying equipment . . . and abstracts therefrom, all free of charge, during the hours the respective offices may be kept open for the ordinary transaction of business and (b) except if federal copyright law otherwise provides, obtain copies of public records . . . during the hours the respective offices may be kept open for the ordinary transaction of business."
1. History. The basic language of this statute has been in effect since 1866. It was amended in 1961 to provide that the public may make memoranda and abstracts from public records. It was also amended in 2000 to provide for an express right for citizens and interested persons to obtain copies of public records.
2. Purpose. The purpose of this statute is "to guarantee that public government records are public." Introducer's Statement of Purpose for LB 505, 72nd
3. Neb. Rev. Stat. ' 25-1280 (1995) also provides that public officials must provide a certified copy of public records upon request and upon payment of the legal fees therefore.
4. Section 84-712 does not require a public agency to review documents and create abstracts or other lists, to answer questions or to create documents which do not otherwise exist. Op. Att'y Gen. No 94092 (November 22, 1994); Op. Att'y Gen. No. 94035 (May 11, 1994); Op. Att'y Gen. No. 87104 (October 27, 1987).
5. Both ' 84-712 and ' 84-712.01 state that public records may be reviewed by members of the public and copies obtained except where statutes expressly provide to the contrary.
6. Section 84-712 applies to citizens of
7. Section 84-712 does not require any showing by a person requesting access to public records of the reason for his or her review of those records. As noted in State ex rel. Sileven v. Spire, 243
8. The Public Records Statutes authorizing the examination of public records at government offices do not require the State Department of Correctional Services to transport a prison inmate to the DCS office where food service contracts are located so that the inmate might examine those contracts. Russell v. Clarke, 15 COPIES OF PUBLIC RECORDSPrior to 2000, the Public Records Statutes did not expressly provide that citizens and interested persons had a right to obtain copies of public records. That situation was changed with the passage of 2000 noted above, citizens and interested persons are now authorized by statute to make copies of public records using their own copying or photocopying equipment, and to obtain copies of public records from public agencies unless federal copyright law provides otherwise.
1. Under ' 84-712(2), copies of public records made by citizens or other persons using their own copying or photocopying equipment must be made on the premises of the custodian of the public records or at a location mutually agreed to by the requester and the custodian.
2. Section 84-712(3) (a) states that a custodian of public records is required to make copies of public records only if the custodian has copying equipment reasonably available. That same section also states that copies of public records may be obtained in any form designated by the requester in which the public record is maintained or produced, including printouts, electronic data, discs, tapes and photocopies.
3. Section 84-712(3)(c) provides that a public body or the custodian of a public record is not required by the Public Records Statutes to produce or generate any public record in a new or different form or format modified from that of the original public record.
4. Fees for Copies of Public Records. The custodian of a public record may charge a fee for providing copies of such record, and that fee shall not exceed the actual cost of making the copies available. ' 84-712(3)(b).
a. Section 84-712(3)(b) defines actual costs as follows:
i. For photocopies, the actual cost of making the copies available shall not exceed the amount of the reasonably calculated actual cost of the photocopies.
ii. For printouts of computerized data on paper, the actual cost of making the copies shall include the reasonably calculated actual cost of computer run time and the cost of materials for making the copy.
iii. For electronic data, the actual cost of making the copies available shall include the reasonably calculated actual cost of the computer run time, any necessary analysis and programming, and the production of the report in the form furnished to the requester.
b. State agencies which provide electronic access to public records though a gateway service must obtain approval of their fees for such access to records from the State Records Board under the appropriate statutes, and the actual cost of making copies of records available in that format may include the approved fee for the gateway service.
c. If copies of records requested under the Public Records Statutes are estimated by the custodian of those records to cost more than $50, the custodian may require the requester to furnish a deposit prior to fulfilling the copy request. ' 84-712(3)(d).
d. The legislative history of LB 628 indicates that the actual cost charged by public bodies for making copies of public records available may include the actual cost of the staff time of the public employees involved in that process, including the time necessary to pull the records, separate out any portions of the records that may be kept confidential, copy the records and return them to the proper files. Floor Debate on LB 628, 96th
e. In Op. Att=y Gen. No. 01029 (August 2, 2001), the Attorney General indicated that the actual costs which may be charged for photocopies of public records include the cost of copy paper, toner, copy machine rental, etc., plus an appropriate amount for the staff time of public employees involved in locating the records, making copies and returning the records to the proper files, not to exceed the amount of time reasonably needed to perform those tasks in a particular case. In that same opinion, the Attorney General indicated that it was his enforcement policy not to question charges of up to 10 cents per page for making photocopies of public records for members of the public. While public officials could charge more than 10 cents a page for making photocopies of public records in a particular instance, they must be able to demonstrate, under the Attorney General=s enforcement policy, that the actual cost of making the records in that case, including a reasonable labor charge for the time of public employees involved, equaled or was greater than the fee being charged for the copies. As an example of his enforcement threshold with respect to charges for photocopies, the Attorney General stated, A. . . if half an hour were reasonably required to locate and copy 50 pages and the hourly rate of the person making the copies is $10 per hour, then a maximum charge of $10 (50 copies x $0.10 + $5 for a half hour of time) would not be challenged by the Attorney General.@ Op. Att=y Gen. No. 01029 at 2.
f. Under the Attorney General=s current enforcement policy, the Office of the Attorney General will not question copying charges of up to 25 cents per page for copies of public records in addition to the other allowable charges discussed in Op. Att=y Gen. No. 01029. DEFINITION OF PUBLIC RECORDNeb. Rev. Stat. ' 84-712.01 defines public records for purposes of the public records statutes. Under that section, except where other statutes expressly provide that a record shall not be made public, public records are all records and documents, regardless of physical form, of or belonging to the state and its various political subdivisions, departments, boards, and commissions. Under this definition, public records are broadly defined, and the scope of the bodies covered is also wide. Data which is a public record in its original form remains so when maintained in a computer.
1. History. Prior to 1979, there was no definition of public record with respect to ' 84-712, and other statutory definitions and statements from case law in other contexts were used to provide a definition. See 1975-76 Rep. Att'y Gen. 289 (Opinion No. 208, dated March 18, 1976); 1963-64 Rep. Att'y Gen. 203 (Opinion No. 121, dated August 27, 1963). In 1979, LB 86 was passed specifically to provide a definition of public record for the public records statutes. See Introducer's Statement of Purpose, LB 86, 86th
2. The intent of LB 86 in 1979 was to require that all documents of public bodies be public records unless another statute expressly provided otherwise or unless those documents fell under one of the exceptions listed later in the bill. [Those exceptions are codified at Neb. Rev. Stat. ' 84-712.05]. Hearing on the Government, Military and Veterans' Affairs Committee on LB 86, 86th
3. The Attorney General has considered the point in time when "draft" documents or work in progress become records and documents which are subject to disclosure under the Public Records Statutes. In Op. Att'y Gen. No. 91054 (June 17, 1991), the Attorney General indicated that this determination must be made on a case-by-case basis. Notes and drafts of documents within an agency which remain subject to approval by upper management and which have not been issued are preliminary materials which are not "records" or "documents." On the other hand, materials which have been through the formation process within an agency and have left the agency are more obviously "records" or "documents," even though they may require further approval and are arguably in "draft" form. The Attorney General has also informally indicated that "briefing papers" which have been circulated to the members of a public body prior to a meeting of the body are not "drafts," but rather are public records subject to disclosure.
4. Records "of" or "belonging to" state agencies under ' 84-712.01 are those records "owned" by the agencies or those records for which the state agencies possess title or an ownership interest. Op. Att'y Gen. No. 97033 (June 8, 1997). The mere fact that a record is in the possession of a public officer or a public agency does not make it a public record of that officer or agency.
5. The Attorney General has indicated informally that the Acustodian@ of a particular public record is the public officer who, by virtue of his office, is the legal custodian for all papers, books and records of that office, including that particular record. Custody over a record requires supervision or control over the document, or legal responsibility for its care, keeping or guardianship.
6. Examples of items which are public records:
a. The numerical index of instruments affecting the title of real estate in the office of the county clerk. State v. Sovereign, 17
b. The fee book of the clerk of the district court. State v. Meeker, 19
c. The docket of a justice of the peace where judgments are recorded. State v. Elsworth, 61
d. Hunting and fishing permits. 1977-78 Rep. Att'y Gen. 30 (Opinion No. 20, dated February 14, 1977).
e. Records maintained by the Crime Victims' Reparations Board. 1979-80 Rep. Att'y Gen. 191 (Opinion No. 136, dated July 25, 1979).
f. Records of official actions taken by the State Tax Commissioner. 1979-80 Rep. Att'y Gen. 241 (Opinion No. 171, dated November 26, 1979).
g. Records maintained by a county in connection with a lottery. Op. Att'y Gen. No. 212 (June 8, 1984).
h. Applications for a Pardon become public records when they are filed with the Secretary of the Nebraska Board of Pardons. Op. Att'y Gen. No. 92030 (March 2, 1992).
i. Records maintained by a county agricultural society are subject to the public records statutes. Op. Att'y Gen. No. 91007 (January 29, 1991).
j. Applications for absentee ballots are public records and are open to examination until, following the canvass of votes cast, they are deposited in the office of the county clerk or election commissioner for safe keeping. Op. Att'y Gen. No. 90035 (October 4, 1992).
k. The list of uncashed state warrants maintained by the Nebraska State Treasurer constitutes a public record. Op. Att'y Gen. No. 95025 (March 31, 1995).
l. Completed Claim for Injury or Damage forms filed with the State Risk manager are public records. Op. Att'y Gen. No. 93068 (August 19, 1993).
m. Proposals in connection with Education Innovation Fund grants awarded by the Governor and the Excellence in Education Council are public records. Op. Att'y Gen. No. 94092 (November 22, 1994).
n. Institutional profiles along with preliminary and prioritized lists of educational institutions referred by the U.S. Department of Education to the Nebraska Coordinating Commission for Postsecondary Education acting as the State Postsecondary Education Review Entity under federal law are public records. Op. Att'y Gen. No. 94095 (November 28, 1994).
o. In Op. Att'y Gen. No. 94035 (May 11, 1994), the Attorney General indicated that records revealing the identities of applicants for positions with the Nebraska Department of Education, including the position of Commissioner of Education, are public records which should be made available to the public. That opinion also indicated that materials accompanying such applications including resumes, letters of recommendation, and so forth are public records to the extent that they are in the possession of the state agency. [Neb. Rev. Stat. ' 84-712.05(15), passed as a part of LB 137 in 1999, affects the conclusion set out in that opinion. See ' E 4 o below.]
p. Computer data bases, computer programs, and computer instructions, manipulations and routines collected, formulated and produced by the Nebraska Department of Education in accordance with the Tax Equity and Educational Opportunities Support Act are public records under the Public Records Statutes. Op. Att'y Gen. No. 96074 (November 13, 1996). On the other hand, computer "source files" or "dynamic application text files" which contain primarily alphanumeric characters, including punctuation and/or special characters used to control printing are not public records.
q. The records of a court-appointed receiver which are directly related to the receivership are public records which are subject to the Public Records Statutes. Op. Att=y Gen. No. 97055 (October 16, 1997).
r. Reports by County Drug Law Enforcement and Education Fund Boards to the Auditor of Public Accounts under Neb. Rev. Stat. ' 28‑1439.03 (1995) are public records under the Public Records Statutes. Op. Att=y Gen. No. 99034 (July 29, 1999). Those reports summarize the use of forfeiture funds during each year. However, the Auditor=s working papers with respect to those reports are not subject to disclosure.
s. The Attorney General has indicated informally that first reports of injury filed with the Workers' Compensation Court, with the exception of the portions of those reports containing an employer's unemployment insurance account number and any social security numbers, are public records.
t. Records of or belonging to the judicial department of state government, including briefs and legal memoranda, are public records under the Public Records Statutes. Op. Att'y Gen. No. 04030 (December 27, 2004). However, the Attorney General has also indicated that courts may take the position that any obligation which they have to produce records, including briefs and legal memoranda, under the Public Records Statutes is subject to the courts' supervisory power over their own records and files.
7. Examples of other statutes which provide that certain public records shall be confidential and which apparently would control over ' 84-712:
a. Neb. Rev. Stat. ' 48-612 concerning employee information obtained from employers by the Department of Labor. 1973-74 Rep. Att'y Gen. 170 (Opinion No. 128, dated January 17, 1974).
b. 42 U.S.C. ' 405(c)(2)(C) concerning information regarding social security numbers. Op. Att'y Gen. No. 93042 (June 1, 1993); Op. Att'y Gen. No. 239 (December 10, 1984).
c. Neb. Rev. Stat. ' 77-4104(2)(d) concerning applications and supporting information for tax incentives under the Employment and Investment Growth Act. Op. Att'y Gen. No. 87093 (July 30, 1987).
d. Those statutes which are a part of the Nebraska Rules of Evidence which create evidentiary privilege may create an exception to the public records statutes. Evidentiary privilege is granted in Chapter 27, Article 5 of the Nebraska Statutes for several types of communications. Included, for example, are attorney-client communications, physician-patient communications and husband-wife communications.
8. Under LIBERAL CONSTRUCTION FOR FISCAL RECORDSSection 84-712.01 provides that the public records statutes shall be liberally construed when the fiscal records of a public body are involved so that citizens shall have full access to information on the public finances of government. EXCEPTIONS TO DISCLOSUREThe public records statutes are not absolute, and they provide for exceptions to disclosure by express and special provisions. Orr v. Knowles, 215 337 N.W.2d 699 (1983).
1. Section 84-712.05 describes records which may be withheld from the public by their lawful custodian unless disclosed in open court, in an open administrative proceeding, an open meeting, or pursuant to the duties of the public body. Records have been Adisclosed@ in that context only when the public body has, in its official capacity, already made them available to the public. State ex rel. Nebraska Health Care Association v. Dept. of Health and Human Services Finance and Support, 255 Neb. 784, 587 N.W.2d 100 (1998). Also, the exceptions listed in ' 84-712.05 simply permit nondisclosure; they do not require confidentiality for those categories of records. Burlington Northern Railroad Company v. Omaha Public power District, 703 F. Supp. 826 (D. Neb. 1988); aff'd Burlington Northern Railroad Company v. Omaha Public Power District, 888 F.2d 1228 (8th Cir. 1989).
2. The initial exceptions to the public records statutes which became ' 84‑712.05 were enumerated in LB 86, passed by the Legislature in 1979.
3. The Attorney General has concluded that the provisions of ' 84-712.05 do not create "exemptions" to the public records statutes, i.e., the various categories of records set out in that section are still "public records." However, even though they are public records, they may be kept confidential at the discretion of their custodian agency. Op. Att'y Gen. No. 94080 (October 14, 1994). The Attorney General has also concluded that § 84‑712.05 applies to the public's right to access public records, and does not affect the right of the Legislature's Performance Audit Committee to review confidential records as a part of a performance audit. Op. Att'y Gen. No. 04022 (August 13, 2004).
4. The current version of ' 84-712.05 permits a custodian of public records to keep the following categories of documents confidential:
a. 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. 1232 g, as such section existed on January 1, 2003. Under the federal statute, directory information is defined as: the student=s name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous educational agency or institution attended by the student.
b. Medical records, other than records of births and deaths and certain investigatory records discussed below, in any form concerning any person, records of elections not to be bound by the Nebraska Hospital Medical Liability Act under Neb. Rev. Stat. ' 44-2821, and patient safety work product under the Patient Safety Improvement Act.
i. The Attorney General has concluded that fiscal records kept by a county ambulance service are subject to examination, but that the names of patients and the types of services rendered to those patients are medical records which may be kept confidential. Op. Att'y Gen. No. 116, (July 22, 1985).
ii. Birth and death records should be made available to the public under the public records statutes. Op. Att'y Gen. No. 91004, (January 28, 1991); Op. Att'y Gen. No. 90039 (November 20, 1990). The federal Health Insurance Portability and Accountability Act of 1996 or AHIPPA@ does not restrict the cause of death from being disclosed as a part of a death record, and death certificates which list the cause of death as a communicable disease may not be kept confidential under the Public Records Statutes. Op. Att=y Gen. No.04018 (April 20, 2004).
iii. In Op. Att'y Gen. No. 91039 (May 16, 1991), the Attorney General discussed the confidentiality of a number of records maintained by the Nebraska Office of Risk Management including materials relating to Workers' Compensation claims, State Claims Board claims, Reports on Unsafe Conditions, and correspondence from the Attorney General's Office. The bulk of those documents could be kept confidential.
c. Trade secrets, academic and scientific research work in progress and unpublished, and other proprietary or commercial information which would give advantage to business competitors and serve no public purpose if released.
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