Midwest Newsroom

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Can a state organization charge $44,000 for emails? A lawsuit may answer that

Nebraska Public Media | By Daniel Wheaton

Published February 1, 2023 at 4:00 AM CST

Water resources technicians Josh Schnitzler, who works for the Lower Elkhorn Resources District in Norfolk, Nebraska, takes a water sample from a monitoring well near the north fork of the Elkhorn River. He was working at a nested location of 3 wells that run from shallow to more deep and are used to monitor ground water for nitrates and other substances like solids and sulfates. The wells are located about 10 miles northwest of Elkhorn.

A Nebraska regulator is asking a news organization to pay thousands of dollars for the to compile a public records request.

The Flatwater Free Press, a Nebraska-based non-profit news organization, is suing the Nebraska Department of Environment and Energy over a public records request related to nitrates in Nebraska’s waterways.

While state organizations are allowed to charge for the work of completing a records request, the amount that NDEE is asking for — more than 44-thousand dollars — is an amount that Matt Wynn, executive director of the Nebraska Journalism Trust, said is “absurd.”

“This is a system that was set up for all Nebraskans, not just journalists,” Wynn said. “It’s mostly non-journalists that do records requests like this.”

Matt Wynn, the executive director of the Nebraska Journalism Trust.

The hearing is scheduled for Feb. 2, in Lancaster County District Court in Lincoln, Nebraska.

During the past several months, Flatwater has been reporting on the prevalence of nitrates in Nebraska’s waterways. The fertilizer is key for farming, but the chemical leaches into the state’s waterways: increasing the chances for childhood cancer.

In a November post announcing the lawsuit, Wynn explained the request: Emails sent by the NDEE that contain these keywords: nitrate, nitrogen, nutrient and fertilizer.

The records are being sought to confirm a tip Flatwater received. The news organization is seeking to explain how the NDEE communicates with Nebraskans who use nitrates.

In emails submitted to the court, the Office of the Chief Information Officer told Flatwater that the department could run the search and provide the records. However, in order to complete the request, NDEE would ask each employee to review their emails and decide if they can be released to the public. That collective time of those employees would cost $44,103.11.

Nebraska public records law allows for agencies to charge people requesting records a fee, typically the cost of an employee’s time to run a specific query or do a physical search.

The Midwest Newsroom reached out to the Nebraska Department of Environment and Energy to comment on the case. A spokesperson said the department does not provide comment on pending litigation.

In a brief filed in late January, NDEE defended its decision by arguing that the search was too broad and it justifies the total cost in accordance with current law.

Daniel Gutman, the attorney representing Flatwater, said that typically a lawyer would review the documents and make a determination if it is a public record or not. Agencies can’t charge the public for the time associated with a legal review. Typically charges only involve the cost of office materials.

“They can charge for providing documents,” Gutman said. “But they can’t charge for withholding them.”