Conrad Bill insists Nebraska residents have “the maximum possible access” to public records.

LINCOLN. Lincoln Senator Danielle Conrad, who in her previous position led the Nebraska chapter of the American Civil Liberties Union, often turned to public documents to back up the legal arguments of people who claim that state or local governments have crossed a line.

During her first tenure in the Legislature, from 2007 to 2011, she advocated the importance of inexpensive access to public records to help hold government agencies, employees, and elected officials accountable for their actions.

This year, Conrad proposed several changes to state public records laws that she and others say would make it harder for agencies to withhold public information or prevent people from receiving it by charging them more than necessary. The bill was considered on Thursday.

Among the proposals in Bill 366:

  • A requirement that public authorities’ estimates of the expected costs of complying with requests for the production of public documents be sworn in by the person responsible for oversight of the records. (Existing practices are informal and non-specific and may result in agencies charging exorbitant amounts.)
  • Increase the amount of time staff spend requesting documentation from four hours to eight hours before a government agency can charge a Nebraska resident for staff time. People outside of Nebraska looking for records will be charged after the first four hours. (County officials testified that many Nebraska counties are inundated with outside requests for information.)
  • Clarification that only the work of a lawyer can be attributed to legal costs. (Some state and local agencies have claimed “legal fees” for the time their employees spend reviewing their emails before sending them to a lawyer.)
  • Preventing agencies from charging for pages that are blank or mostly redacted and contain little or no information.
  • Adding a public interest exemption to the Public Records Act, which would allow government agencies the discretion to make public recordings available for little or no charge. (This provision is modeled after Oklahoma law.)
  • Requiring public release of video footage of deaths in custody from body-worn police cameras following the conclusion of the Nebraska grand jury process. (Currently, individual police agencies make their own decisions about releasing such videos.)

Why change is needed

Conrad testified that Legislative Bill 366 would reinforce the original purpose of the Nebraska Public Records Act by giving the public “the widest possible access to government records and government activities.”

She said the push is being driven by “an incredible sea change” in how government agencies respond to requests for state and local public records, often delaying the return of results, threatening excessive fees before requests are granted, or being denied access.

“It’s not one agency and it’s not one community,” Conrad said. “In previous years, you’ve been like, ‘Hey, I’d love to have this information about this… and you could actually get this information. We have really seen the hardening and destruction of this approach in a very short period of time.”

She and Rose Ann Shannon of Media of Nebraska gave several examples, including the lawsuit it took to get the name of the company that supplied the drugs used in the executions from the Nebraska Department of Corrections.

The Nebraska Department of Health and Human Services tried to charge State Senator Michaela Kavanaugh of Omaha $64,000 for public information she solicited for her work on the Legislative Assembly Committee on Health and Human Services.

Both Conrad and Shannon cited a recent lawsuit by Flatwater Free Press in an attempt to obtain public records of nitrates in Nebraska water without charging for the time staff spent reviewing email records to see if they could legally be shared.

Spike Eickholt of the ACLU in Nebraska pointed to anger from the political right and left as a symptom not of “distrust of the government” but of “frustration” that the government “seems inaccessible or opaque”.

He gave the example of the ACLU requesting public records from Lincoln Public Schools related to their sex education and human sexuality courses. He said the school district said the request would take 20 weeks and cost $31,000.

“For the general public, this is simply not achievable,” he said.

Protecting the status quo

The League of Nebraska Municipalities and the Association of Nebraska County Officials opposed a proposed increase in the number of free hours Nebraska residents would receive for public document requests. Beth Bazin Ferrell of NACO said they “would rather leave it at four o’clock.”

Christie Abraham of the League of Nebraska Municipalities has asked for a reduction in free hours for out-of-state interests.

“Is it possible that when we get these requests, we don’t have to give them four free hours of time, we can just charge them right away?” she asked.

She pointed to the amount of work that county employees do to fulfill requests from out-of-state companies that flip and sell information.

Abraham also expressed concern about what it would mean legally for city and county record keepers to assess costs “under oath.” But she said the league is open to more discussions about the measure.

Body cameras

Lancaster County Attorney Pat Condon led several law enforcement officials to testify against expanding access to body-worn video footage after every death in custody. He and Omaha Police Lt. Dan Marvin said they were concerned about how it would affect the officer’s right to a fair trial if charges were filed after such footage was released.

“Audio and video evidence from body-worn cameras is essential evidence in many fair trial trials regarding the rights of individuals,” Condon said.

Conrad dismissed Condon’s comment that the videos could increase liability or criminal risk for cities, counties, and officers. She said those risks would only increase if the officers on the tape did something wrong. She noted that jurors could be tested and isolated, and trials could be rescheduled.

Marvin and William Finn, deputy chief of the Douglas County Sheriff’s Department, argued that the decision to release bodycam footage should be left to law enforcement. Marvin said forcing the release of the footage could turn people against the officers before all the facts were known.

“We appreciate the mention that they have been put on hold until the grand jury,” Finn said. “However, even after being released after that, the layman is left to interpret things when they may not know what they are looking at.”

The ACLU’s Eickholt said that the release of such videos is necessary to give people confidence in the grand jury process already taking place behind closed doors. People “want to see it for themselves,” he said.

Bill LB 366, Konrad said, is not a political bill in the traditional conservative or liberal sense.

“These are the records of the people, not the government,” she said. “Our job is to make sure people have access to them.”

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