AGO Opinion 97052
1997 Neb. Laws LB 590; Amount of Fees for Electronic Access to Public Records; Necessity for Public Hearings on Such Fees
DATE: October 7, 1997
SUBJECT: 1997 Neb. Laws LB 590; Amount of Fees for Electronic Access to Public Records; Necessity for Public Hearings on Such Fees
REQUESTED BY: Scott Moore, Nebraska Secretary of State
Chairman, State Records Board
WRITTEN BY: Don Stenberg, Attorney General
Dale A. Comer, Assistant Attorney General
Under 1997 Neb. Laws LB 590, § 8, the State Records Board (the
"Board") "may establish reasonable fees for electronic access to
public records through the [electronic] gateway." Under § 9 of
that same bill, "[a]ny state agency desiring to enter into an
agreement to or otherwise provide electronic access to public
records through a gateway for a fee shall make a written request
for approval to the board." As we understand it from the materials
you provided to us, the Department of Motor Vehicles (the
"Department") has recently presented the Board with a request to
charge fees for electronic access to certain motor vehicle title
registration and lien information involving both fees for batch
processing of information requests and individual interactive
searches. That request from the Department has prompted you to
pose two questions to us, both of which are discussed below.
1. Permissible Fees Under LB 590.
Neb. Rev. Stat. § 60-308 (Cum. Supp. 1996) deals with certain
motor vehicle title records and provides, as is pertinent:
The Department of Motor Vehicles shall keep a record of
each vehicle registered, alphabetically by name of the
owner, with cross reference in each instance to the
registration number assigned to such vehicle. .
. . .
The department shall furnish a copy of the record of a
registered or titled vehicle to any applicant after
receiving from the applicant the name on the
registration, the license plate number, the vehicle
identification number, or the title number of a vehicle.
A fee of one dollar shall be charged for the copy.
The Department has now submitted an application to the Board which
proposes a total fee of $2.00 for individual motor vehicle record
searches through the electronic or internet access to those
records, based upon the statutory fee of $1.00 set out in § 60-308
and an additional $1.00 fee for electronic access. You are
concerned that this proposal is in contravention of that portion of
§ 8 of LB 590 which provides that "[t]he fees [for electronic
access to public records through the electronic gateway] shall not
exceed the statutory fee for distribution of the public records in
other forms." Accordingly, you have posed the following question
May the total fee for electronic access to information
exceed the statutory fee for accessing the record in
other forms where such a fee exists? Or in this
particular case is the Department of Motor Vehicles
limited to charging $1.00 total for the record (the fee
set in statute) or may they charge $2.00 total, $1.00 for
the statutory fee plus an electronic access fee of $1.00,
which does not exceed the statutory fee?
In Nebraska, in the absence of anything indicating to the
contrary, statutory language should be given its plain and ordinary
meaning, and when the words of a statute are plain and unambiguous,
no interpretation is necessary to ascertain their meaning. Van
Ackeren v. Nebraska State Board of Parole, 251 Neb. 477, 558 N.W.2d
48 (1997). As noted above, 1997 Neb. Laws LB 590, § 8 states, in
relation to the fees which may be charged for electronic access to
public records, that "[t]he fees [for electronic access to public
records through the electronic gateway] shall not exceed the
statutory fee for distribution of the public records in other
forms." It seems to us that this language is plain and
unambiguous, and must be given its plain and ordinary meaning. As
a result, since § 60-308 provides for a fee of $1.00 for a hard
copy of the motor vehicle title records at issue, we believe that,
under § 8 of LB 590, the maximum fee for electronic access to that
same information is also one dollar. The $2.00 fee proposed by the
Department is, therefore, impermissible under § 8 of LB 590.
Our conclusion is amply supported by the legislative history
of LB 590. The language at issue from § 8 of LB 590 was added to
the original bill presented out of committee as a result of
Amendment No. FA164 proposed by Senator Coordsen. At the beginning
of the floor discussion on that amendment, Senator Coordsen stated:
The committee amendment [which brings this bill to the
floor] provides that the [state records] board may charge
reasonable fees for electronic access to public
information through the [electronic] gateway. Now I
happen to believe that what it is referencing to or what
we ought to be referencing in that are those cases in
which there is not an access fee established, an
information fee established in statute. Where there is
a fee established in statute, by either definition or
implied by allowing a mechanism, that that (sic) fee
ought to be the same to the public without regard to the
method that the member of the public receives the
information, whether its hard copy, whether it's coming
into an office, whether it's mailing in a request asking
for something to come back, or if accessed through what
is currently the Nebraks@ Online site, that may, in the
future, be some other site, through a home or business
computer and then printed off on your own . . . on your
own printer in your office or home, that fee where there
is a legislative determined fee ought to be the same and
we ought not to raise that fee for any other . . . by any
amount for different forms of access.
Floor Debate on LB 590, 95th Neb. Leg., 1st Sess. 4721 (April 21,
1997) (Statement of Senator Coordsen) (emphasis added).
Later in the discussion on the amendment, Senator Coordsen
So it's my belief that the additional [electronic access
fee] requirement here is somewhat loading up on the
system, and in drafting I simply do not believe that an
additional fee, more than what we've ever otherwise
provided for, is necessary. That any place that there is
a statutory fee established by the Legislature for
information or forms or pyramids, or whatever, that those
fees stay the same as they are statutorily without regard
to the method of providing that service.
Floor Debate on LB 590, 95th Neb. Leg., 1st Sess. 4722 (April 21,
1997) (Statement of Senator Coordsen) (emphasis added).
Finally, in his closing summary on the amendment, Senator
It's my belief that this particular language [from the
form of LB 590 submitted by committee] that I'm striking
is somewhat of a holdover from the earlier idea, and from
the green copy where I think it was taken out in most
other cases, and that . . . where there's a statutory fee
established, that would be the charge, no matter what the
means of accessing that information was.
Floor Debate on LB 590, 95th Neb. Leg., 1st Sess. 4738 (April 21,
1997) (Statement of Senator Coordsen) (emphasis added). As a
result, we believe that the maximum fee which may be charged for
electronic access to the motor vehicle title information at issue
is $1.00, in light of the pertinent portions of LB 590 and § 60-
2. Necessity for a Public Hearing on Fee Determinations.
Your second question goes to the public hearing requirements
which are set out in § 9 of LB 590 pertaining to a request for
approval of a fee for electronic access to public records. You
If there is a statutory fee set for a record and an
agency proposes to charge that fee for electronic access
to the record does the State Records Board still have to
have a hearing and make a finding that the fee is
"reasonable" or is there a presumption that the fee is
reasonable if it is at or less than the statutory fee?
The portion of 1997 Neb. Laws LB 590, § 9 which is pertinent
to your inquiry states:
Any state agency desiring to enter into an agreement to
or otherwise provide electronic access to public records
through a gateway for a fee shall make a written request
for approval to the [State Records] board. . . .
The board shall take action on such request in accordance
with section 8 of this act and after a public hearing
within thirty days after receipt.
Two rules of statutory construction apply to your second
question. First, as noted above, statutory language should
ordinarily be given its plain and ordinary meaning. Van Ackeren v.
Nebraska State Board of Parole, supra. Second, the word "shall" in
a statute is considered mandatory and inconsistent with the idea of
discretion. Moyer v. Douglas & Lomanson Co., 212 Neb. 680, 325
N.W.2d 648 (1982); Neb. Rev. Stat. § 49-802 (1993).
Even though we might agree with the premise implied in your
question that there seems to be little need for a public hearing on
a fee proposal when that fee is at or less than the fee established
by statute, the language in § 9 of LB 590 pertaining to the
necessity for a public hearing seems clear. Moreover, since that
statute provides that the board "shall" take action on fee
applications after a public hearing, and no specific disposition is
made for fee applications where there is a maximum fee already set
by statute, we believe that the Board should proceed with a public
hearing in each instance where an agency requests the Board to set
a fee for electronic access to public records.
Dale A. Comer
Assistant Attorney General