Judge sides with Flatwater Free Press in public records case

LINCOLN, Nebraska (Nebraska) – A judge has ruled in favor of the Nebraska Journalism Foundation after they sued the state Department of Environment and Energy over a $44,000 public document requirement.

In court papers filed Tuesday, Lancaster County Judge Ryan Post said NDEE would have to provide a new cost estimate for those documents, agreeing with the Trust’s argument that the original estimate was illegal.

“This is a major victory for Flatwater, the press and the public,” said Matt Wynn, chief executive of Trust and Flatwater Free Press. “It’s about government transparency.”

The request was for emails from NDEE staff inboxes and emails containing several keywords related to the ongoing Flatwater Free Press investigation into nitrate levels in Nebraska’s water and the potential impact on children’s health.

While the NDEE did not outright reject the request, Wynn and his attorney, Daniel Gutman, argued that the cost estimate was essentially a denial. When Wynn spoke about 10/11, it had been the agency’s practice for years to put up high price tags to hide the records from prying eyes.

“We just shut it down,” Wynn said.

The NDEE argued that the cost was so high given the cost to each affected employee of reviewing their emails containing these keywords to see if they were public records and if they needed editing. State attorneys argued that because they did not use a lawyer to conduct this review, they could charge for it after the first four hours of work.

Judge Post disagreed.

“Nebraska law allows government officials to charge a fee for providing access to records under certain circumstances. But, with the exception of time spent on “physical editing,” Nebraska law does not allow state officials to charge for time spent determining whether records should be made inaccessible,” Post wrote in court documents.

The Post goes on to say that Flatwater Free Press is entitled to a valuation under state law.

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