a. Section 84-712(3)(b) further defines actual added costs as follows:

i. For photocopies, the actual added cost of making the copies available shall not exceed the amount of the reasonably calculated actual added cost of the photocopies, which may include a reasonably apportioned cost of the supplies, such as paper, toner and equipment, used in preparing the copies, as well as any additional payment obligation of the custodian for time of contractors necessarily incurred to comply with the request for copies.

 

ii. For printouts of computerized data on paper, the actual added cost of making the copies available shall include the reasonably calculated actual added cost of computer run time and the cost of materials for making the copy.

 

iii. For electronic data, the actual added cost of making the copies available shall include the reasonably calculated actual added cost of the computer run time, any necessary analysis and programming by the public body, public entity, public official, or third-party information technology services company contracted to provide computer services to the public body, public entity, or public official, and the production of the report in the form furnished to the requester.

b. Under amendments to § 84-712(3)(c) contained in 2024 Neb. Laws LB 43, for residents of Nebraska, the actual added cost used as the basis for calculation of a fee for copies of public records cannot include any charge for the existing salary or pay obligation to public officers or public employees with respect to the first eight cumulative hours of searching for, identifying, physically redacting, or copying public records responsive to a particular records request.  A special service charge representing the time required in excess of eight cumulative hours to search for, identify, physically redact, and copy records responsive to a particular records request can be imposed for providing copies of public records, since a large records request may delay or otherwise disrupt the operation of the custodian’s office.  The fee for copies of public records may not include any charge for the services of an attorney or any other person to review requested public records to determine if there is a legal basis to withhold the public records from the public.

i. In Nebraska Journalism Trust v. Nebraska Dept. of Env’t and Energy, 316 Neb. 174, 3 N.W.3d 361 (2024), the Nebraska Supreme Court reversed a trial court decision which determined the special service charge “did not ‘permit a fee for nonattorney employees to review’ documents” since the Legislature did not include “reviewing” with the terms “searching, identifying, physically redacting or copying” listed in the statute.  Id. at 180, 3 N.W.3d at 367.  The court noted that “review is intrinsic” to the items in the list, and that identifying or physically redacting documents “would require some level of review.”  Id. at 193, 3 N.W.3d at 374.  “To the extent review is needed to ensure that the public record is responsive to the request or that portions of the record are not exempt from disclosure, the review is part of the ‘actual added cost used as the basis for the calculation of a fee for records.’”  Id.

c. For purposes of the Public Records Statutes, “resident means a person domiciled in this state and includes news media without regard to domicile.”  Neb. Rev. Stat. § 84-712(5).

d. For nonresidents, the actual added cost used as the basis for the calculation of a fee for records may include a charge for the proportion of the existing salary or pay obligation to the public officers or employees, including a proportional charge for the services of an attorney to review the requested public records, for the time spent searching, identifying, physically redacting, copying, or reviewing such records.  Neb. Rev. Stat. § 84-712(3)(d).

 

e. Public bodies may not charge a special service charge or fee to produce copies of blank forms or pages that have all meaningful information redacted.  Neb. Rev. Stat. § 84-712(3)(c).

f. State agencies which provide electronic access to public records though a portal established under § 84-1204 must obtain approval of their fees for such access to records from the State Records Board under the appropriate statutes, and the actual added cost of making copies of records available in that format may include the approved fee for the portal.

g. Section 84-712(3)(f) 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.

h. 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.  Neb. Rev. Stat. § 84-712(3)(gf).

i. Section 84-712(3)(h) provides that the custodian of records may waive or reduce any fee authorized in § 84-712 if such waiver or reduction would be in the “public interest.”  A fee waiver or reduction is deemed in the public interest when “disclosure of the public record at issue is likely to contribute to the understanding of the operations or activities of government and is not primarily in the commercial interest of the person requesting such records.”  2024 Neb. Laws LB 43.  While § 84-712(3)(h) authorizes fee waivers and reductions, public bodies have always had the discretion to decide whether to assess a fee to produce public records.

j. The legislative history of LB 628 from 2000 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, 96^th Neb. Leg., 2^nd Sess. 10051-10053 (Mar. 8, 2000) (Statement of Sen. Coordsen).  In that regard, the Legislature deleted portions of the original bill which specifically provided that the actual cost of making copies of public records could not include the cost of salaries of public employees. Legislative Journal, 96^th Neb. Leg., 2^ndSess. 757-758 (Feb. 22, 2000) and 836 (Feb. 28, 2000); Floor Debate on LB 628, 96^thNeb. Leg., 2^nd Sess. 10050 (March 8, 2000).  2013 Neb. Laws LB 363 limits charges for staff time to the time expended in excess of the first four cumulative hours spent in providing copies.

k. 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, “. . . 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.

l. Under the Attorney General’s current enforcement policy, this office 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 and permitted under the provisions of 2024 Neb. Laws LB 43.

 

m. In Nebraska Journalism Trust v. Nebraska Dept. of Env’t and Energy, 316 Neb. 174, 3 N.W.3d 361 (2024), the Nebraska Supreme Court held that a public body may charge a special service charge for time spent by nonattorney employees, in excess of four cumulative hours, reviewing requested public records for a statutory basis to withhold, even when the requested records are emails obtained using a keyword computer search.  This holding was legislatively superseded with the enactment of 2024 Neb. Laws LB 43, which eliminated the ability of nonattorneys to charge for their time to review requested public records seeking a basis to withhold.  Neb. Rev. Stat. § 84-712(3)(c).

a. The numerical index of instruments affecting the title of real estate in the office of the county clerk.  State v. Sovereign, 17 Neb. 173, 22 N.W. 353 (1885).

 

b. The fee book of the clerk of the district court.  State v. Meeker, 19 Neb. 106, 26 N.W. 620 (1886).

 

c. The docket of a justice of the peace where judgments are recorded.  State v. Elsworth, 61 Neb. 444, 85 N.W. 439 (1901).

 

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 safekeeping.  Op. Att’y Gen. No. 90035 (October 4, 1990).

 

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.5.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.  Id. 

 

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.  Id. 

 

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.  Id. 

 

u. Applying the functional equivalency test set out in Frederick v. City of Falls City, 289 Neb. 864, 857 N.W.2d 569 (2015), to facts pertinent to the Metropolitan Entertainment & Convention Authority (MECA), the Attorney General concluded that MECA was a hybrid public/private entity subject to the Public Records Statutes.  Op. Att’y Gen. No. 15-016 (October 29, 2015).

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.

 

e. Under Neb. Rev. Stat. § 29-2261, presentence reports are privileged, and are not public records as defined in Neb. Rev. Stat. § 84-712.01.  State ex rel. Unger v. State of Nebraska, 293 Neb. 549, 878 N.W.2d 540 (2016).

 

f. In State ex rel. Veskrna v. Steel, 296 Neb. 581, 894 N.W.2d 788 (2017), the court considered whether certain Judicial Branch Education (JBE) records could be withheld under Neb. Rev. Stat. § 24-205.01(2)(a), which authorizes the JBE Advisory Committee to develop, subject to review by the Supreme Court, standards and rules relating to the confidentiality of records, among other things.  Steel also asserted that (1) the court’s inherent power to establish JBE made the Public Records Statutes inapplicable to the records at issue and (2) the judicial deliberative process privilege extended to JBE records.  The court found that the committee’s unwritten policy regarding the confidentiality of JBE records was insufficient to keep the records confidential under § 24-205.01(2)(a), which contemplated that confidentiality rules be adopted and promulgated by the court.  The court also found “no undue interference in disclosing the records at issue” in a separation of powers context.  Id. at 596, 894 N.W.2d at 799.  While the court formally adopted a judicial deliberations privilege, it found that that records at issue did not fall under the privilege because “[f]undamentally, the records do not relate to particular cases under deliberation.”  Id. at 603, 894 N.W.2d at 803.

 

g. In State ex rel. BH Media Group, Inc. v. Frakes, 305 Neb. 780, 943 N.W.2d 231 (2020), the court considered whether certain records relating to the Department of Correctional Services’ purchase of drugs for use in the lethal injection execution protocol could be withheld under Neb. Rev. Stat. § 83-967(2).  Under the statute, “[t]he identity of all members of the execution team, and any information reasonably calculated to lead to the identity of such members” was confidential and exempt from disclosure under the Public Records Statutes.  The court clarified that a statute is an “other statute” for purposes of § 84-712(1) when its plain language “makes it clear that a record, or portions thereof, is exempt from disclosure in response to a public records request.”  Id. at 794, 943 N.W.2d at 243-244.  It found that while § 83-967(2) qualified as an “other statute,” it did “not provide a complete exception to the public records statutes.”  Id. at 794-795, 943 N.W.2d at 244.  The court found “that Frakes failed to prove by clear and conclusive evidence that any of the requested records are reasonably calculated to lead to the identity of an executive team member,” thus requiring disclosure.  Id. at 801, 943 N.W.2d at 247-248.

 

h. In Jacob v. Nebraska Bd. of Parole, 313 Neb. 109, 982 N.W.2d 815 (2022), the Nebraska Supreme Court considered whether Jacob’s petition for writ of mandamus, which sought records pertaining to his first-step parole review proceeding, was properly denied.  The court determined that the interview conducted as part of the proceeding was an investigatory record and could be withheld under § 84-712.05(5).  The court also found that § 83-1,125.01(2), pertaining to the confidentiality of an individual’s file under the jurisdiction of the Board of Parole, was an “other statute” under § 84-712(1).  Thus, Jacob’s record contained in his individual file and reviewed during the proceeding was “not, in the first instance, a public record.”  Id. at 126, 982 N.W.2d at 830.  The court determined that since Jacob could not articulate which records he was seeking from his individual file, “no court can determine whether the Board of Parole abused its discretion in placing the information in the individual file and thereby improperly sheltered it from public disclosure.”  Id. at 130, 982 N.W.2d at 832.

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. 1232g, as such section existed on February 1, 2013, and regulations adopted thereunder.  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. In State ex rel. Adams County Historical Society v. Kinyoun, 277 Neb. 749, 765 N.W.2d 212 (2009), the court considered whether burial records for patients at the Hastings Regional Center which included the patient’s name, date of death, and medical record number were “medical records” which could be kept confidential under the federal Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and the Public Records Statutes.  The court concluded that the records at issue were records of deaths which could not be kept confidential.

 

ii. 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).

 

iii. 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 “HIPAA” 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).

 

iv.  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.

i. In Aksamit Resource Mgmt. v. Nebraska Pub. Power Dist., 299 Neb. 114, 907 N.W.2d 301 (2018), the court considered whether public records belonging to the Nebraska Public Power District (NPPD) relating to energy costs, expenditures, revenue, and annual output could be withheld under the proprietary or commercial information exception.  In order for the exception to become operative, “NPPD had the burden to show both that the information would give advantage to competitors and that the information would serve no public purpose.”  Id. at 124, 907 N.W.2d at 309.  The court further held that “[i]nformation which would give a business competitor an advantage may be withheld only if it would ‘serve no public purpose.’ There is no requirement that the public purpose to be served outweigh the competitive harm caused.”  Id. at 125, 907 N.W.2d at 309-10.  The court concluded that while NPPD demonstrated that release of the information would give an advantage to competitors, it was not entitled to withhold records under the exception since it failed to establish that disclosing the information would serve no public purpose.  Id. at 127, 907 N.W.2d at 310.

 

ii. A trade secret under § 84-712.05 is defined in Burlington Northern Railroad Company v. Omaha Public Power District, 703 F. Supp. 826 (D. Neb. 1988).  However, that case preceded the effective date of the Nebraska Trade Secrets Act adopted in 1988.  [Neb. Rev. Stat. §§ 87-501 through to 87‑507]  That Act contains a definition of “trade secret” which could be the definition used in the future for purposes of Section 84-712.05(3).  In addition, that Act contains some positive prohibitions upon the dissemination of trade secrets which may go beyond the provisions of the Public Records Statutes.

 

iii. In Op. Att’y Gen. No. 92068 (May 7, 1992), the Attorney General discussed withholding records involving "proprietary or commercial information which would give advantage to business competitors and serve no public purpose if released."  The Attorney General concluded that:  (a) Section 84‑712.05(3) does not impose any requirement of “substantial” competitive injury or advantage to make the exception from disclosure available, (b) a bare assertion by the provider of commercial information that such information is confidential is insufficient to justify nondisclosure, and (c) nondisclosure must be based upon a showing that a specified competitor may gain a demonstrated advantage by disclosure rather than a mere assertion that some unknown business competitor may gain some unspecified advantage.  The Attorney General reaffirmed those requirements for assertion of the proprietary and commercial information exception to disclosure in Op. Att'y Gen. No. 97033 (June 8, 1997).

 

iv. he Attorney General has indicated informally that a study of Mexican American sentencing trends conducted for a state agency by a college professor which was in uncompleted form constituted academic or scientific research work which could be withheld from the public.

 

d. Records which represent the work product of an attorney and the public body involved which are related to preparation for litigation, labor negotiations or claims made by or against the public body, or records which are subject to the attorney/client evidentiary privilege.

 

e. Records developed or received by law enforcement agencies and other public bodies with duties of investigation or examination when the records are part of the examination, investigation, intelligence information, complaints or inquiries from Nebraska residents or other interested persons, informant identification, or information used in law enforcement training.  Under LB 590 passed in 1993, and LB 1061 passed in 1994, this exception does not apply to investigatory records developed or received relating to the presence of and amount or concentration of alcohol or drugs in any body fluid of any person.  In 2018, the exception was further amended to exempt records relating to the cause of or circumstances surrounding the death of an employee arising out of employment when requested by a family member of the deceased employee after an investigation is concluded.  2018 Neb. Laws LB 859, § 1.

 

i. A public record is an investigatory record where:  (1) the activity giving rise to the document sought is related to the duty of investigation or examination with which the public body is charged, and (2) the relationship between the investigation or examination and that public body’s duty to investigate or examine supports a colorable claim of rationality.  Jacob v. Nebraska Bd. of Parole, 313 Neb. 109, 982 N.W.2d 815 (2022); Evertson v. The City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009); 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).  When a document is compiled ancillary to an agency’s administrative function, then it is not protected from disclosure as an investigatory record.  Id.  However, when an inquiry by an administrative agency departs from the routine and focuses with special intensity on a particular party, an investigation is underway for purposes of the investigatory records exception to disclosure.  Id.

 

ii. In Evertson v. The City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009), the court discussed application of the investigatory records exception when a public body investigates its own employees.  The court stated that investigation of a public body’s employee is “for law enforcement purposes” if the alleged acts of the employee could result in civil or criminal sanctions.  In addition, the investigatory records exception only applies to an investigation of a public body’s employees if the investigation focuses on specifically alleged illegal acts.  General agency monitoring of a public body’s own employees is arguably not covered by the exception.

 

iii. The Attorney General has concluded that the results of examinations conducted by the State Board of Examiners for Professional Engineers and Architects and files relating to certification of construction companies as Minority Business Enterprises are records which may be kept confidential under this section.  Op. Att'y Gen. No. 123 (June 10, 1983); Op. Att'y Gen. No. 128 (July 6, 1983).

 

iv. In State ex rel. Sileven v. Spire, 243 Neb. 451, 500 N.W.2d 179 (1993), the Court considered whether the following records could be withheld under this provision:  records in the possession of the Attorney General concerning an investigation and prosecution of violations of the Nebraska Political Accountability and Disclosure Act, records in the possession of the Attorney General concerning an investigation by the State Patrol into fraudulent business activities, and records in the possession of the Attorney General concerning an investigation by the Missouri Attorney General's office into fraudulent activities.  The Court concluded that these various records fell within the plain and ordinary meaning of § 84-712.05(5), and could be kept confidential.

 

v. In Fourcloud v. City of Fremont, 1993 WL 259351 (Neb. Ct. App. 1993) (not approved for publication), the Nebraska Court of Appeals held that “offense reports” and “incident reports” which are public records under § 29-3521 of the Nebraska Security, Privacy, and Dissemination of Criminal History Information Act, Neb. Rev. Stat. §§ 29-209, 29-210, 29-3501 to 29-3528 and 81-1423 (1995, Cum. Supp. 2006), may still be withheld from the public if they are part of intelligence or investigative information under § 84-712.05(5).  The public body in possession of such records has the burden to demonstrate that the records in question are intelligence or investigative information.

 

vi. The Attorney General has indicated that tape recordings made by the Nebraska Equal Opportunity Commission as a part of an investigation of employment or housing discrimination could be kept confidential under § 84-712.05(5).  Op. Att'y Gen. No. 94004 (January 11, 1994).

 

vii. Institutional profiles and preliminary 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 may be withheld from public review as investigatory records.  Op. Att'y Gen. No. 94095 (November 28, 1994).

 

viii.  In Op. Att’y Gen. No. 00037 (October 20, 2000), the Attorney General indicated that records received by the State Department of Education pursuant to its duties of examining persons for the purpose of issuing teaching and administrative certificates to qualified applicants could be kept confidential under § 84-712.05(5).  The Attorney General stated that the application records at issue were records developed or received as a part of an “examination,” and distinguished those records from the investigatory records at issue in 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).

 

xi. The exception was amended in 2024 Neb. Laws LB 43, § 11 (operative date March 28, 2024), to include complaints and inquiries from Nebraska residents and other interested persons.

 

f. The identity and personal identifying information of an alleged victim of sexual assault or sex trafficking as provided in § 29-4316.  2022 Neb. Laws LB 1246, § 5.

 

g. Appraisals and appraisal information and negotiation records concerning the purchase or sale by a public body of real or personal property prior to the completion of the purchase or sale.

 

h. Personal information in records regarding personnel of public bodies other than salaries and routine directory information.

 

i. The Attorney General has indicated that employee evaluations from personnel files and lists of employees receiving bonuses may be kept confidential.  On the other hand, fiscal records which would allow a determination of which public employees received a bonus must be revealed.  Op. Att'y Gen. No. 90015 (February 27, 1990).

 

ii. Social Security numbers of state employees are not salaries or routine directory information which must be released under the Public Records Statutes, and those numbers cannot be released under the State Personnel Rules.  Therefore, state employees' social security numbers cannot be provided by the State Department of Personnel to the Department of Motor Vehicles for checks of the driving records of state employees. Op. Att'y Gen. No. 93042 (June 1, 1993).

 

iii. In Steckelberg v. Nebraska State Patrol, 294 Neb. 842, 885 N.W.2d 44 (2016), the Nebraska Supreme Court held that records relating to the interview and selection process for a  position with the Nebraska State Patrol could be withheld under § 84-712.05(8).

 

i. Information solely pertaining to protection of the security of public property and persons on or within public property, such as specific, unique vulnerability assessments or specific, unique response plans, either of which is intended to prevent or mitigate criminal acts the public disclosure of which would create a substantial likelihood of endangering public safety or property; computer or communications network schema, passwords, and user identification names; guard schedules or lock combinations.  Under 2011 Neb. Laws LB 230, § 1, the following records were added to this exception to disclosure in 2011:  public utility infrastructure specifications or design drawings the public disclosure of which would create a substantial likelihood of endangering public safety or property, unless otherwise provided by state or federal law.

 

i. The language of this exception was also amended and broadened by LB 276, passed by the Legislature in 2002.

 

j. Information containing details of physical and cyber assets of critical energy or electric infrastructure, including the identity of certain personnel if a reasonable person with knowledge of the electric utility or energy industry would conclude that the disclosure of such identity could create a substantial likelihood of risk to physical or cyber assets. Personnel not subject to the exception include a chief executive officer, general manager, vice president, or board member of a public entity that manages critical energy or electric infrastructure.  The lawful custodian of the records must provide a detailed job description for any personnel whose identity is withheld under this exception.  This provision was added by 2019 Neb. Laws LB 16, § 1.

 

k. The security-related records of the Lottery Division of the Nebraska Department of Revenue and those persons or entities with which the Division has entered into contractual relationships.  This provision does not allow the Lottery Division to withhold information relating to amounts paid to lottery contractors, amounts of prizes paid, and the name of any prize winner whose award is less than $250,000, and the city, village county where the prize winner resides.  Amended by 2024 Neb. Laws LB 1204, § 37.

 

l. Information from public utilities including personally identified private customer account payment and customer use information, credit information, and customer lists.  This provision was added by LB 108 passed by the Legislature in 1983.  Under LB 1224, passed in 1994, public utilities must still furnish county attorneys, authorized attorneys and the Department of Health and Human Services any information which they have detailing the names, addresses, social security numbers and employers of individuals for the purposes of collecting unpaid child, spousal and medical support payments.  1994 Neb. Laws LB 1224, § 44 [codified at Neb. Rev. Stat. § 42-358.08].  This provision was also amended by 2011 Neb. Laws LB 230, § 1; and 2024 Neb. Laws LB 43, § 11.

 

m. Records of publicly funded libraries which reveal the identities of patrons using the library’s services.  This exception was added by LB 108, passed by the Legislature in 1983.

 

n. Correspondence, memoranda, and records of telephone calls, related to performance of duties by a member of the Legislature in whatever form.  This exception was originally added by LB 565 in 1983 as a direct result of an opinion by the Attorney General that correspondence and memoranda of state senators were public records.  Op. Att'y Gen. No. 46 (March 14, 1983).  The legislative history of LB 565 indicates that the provisions relating to the confidentiality of legislative phone calls originally pertained to the identity of the caller and not to the cost or the date of the call.  Government, Military and Veterans Affairs Committee Hearing on LB 565, 88^th Nebraska Legislature, First Session (1983) at 44.

 

i. The Attorney General has indicated that this exception must be read to prevent public access to legislative phone records, and not necessarily to prevent access by other governmental officials under other statutes which separately grant access. Op. Att'y Gen. No. 94080 (October 14, 1994).  Op. Att'y Gen. No. 92116 (October 8, 1992).

 

ii. Under Neb. Rev. Stat. § 81-1120.27, any member of the Legislature may, at his or her sole discretion, designate any long-distance telephone call as sensitive or confidential in nature.  If such a designation is made, any record of the call used in an audit shall contain only the date of the call and the cost of the call.   No other disclosure with respect to that call can be required.  "Sensitive and confidential" in this context means that either the member of the Legislature or the caller would reasonably expect that the nature or the content of the call would not be disclosed without the consent of the member and the caller.

 

iii. Under LB 509, passed in 1995, the lawful custodian of legislative correspondence, memoranda and records of telephone calls shall, upon approval of the Legislature's Executive Board, release those records, with the exception of records of telephone calls designated as sensitive or confidential by individual legislators, to any person performing an audit of the Legislature.  A member's correspondence, memoranda and records of confidential telephone calls related to the performance of his or her duties may be released to any other person only with the explicit approval of the member of the Legislature.

 

o. Records kept by public bodies which would reveal the location, character, or ownership of any known archaeological, historical, or paleontological site in Nebraska when necessary to protect such site from a reasonably held fear of theft, vandalism or trespass.  This section does not apply to release of information for scholarly research, examination by other public bodies for the protection of the resource or by recognized tribes, the Unmarked Human Burial Sites and Skeletal Remains Protection Act, or the federal Native American Graves Protection and Repatriation Act.

 

p. Records kept by public bodies which maintain collections of archaeological, historical, or paleontological significance which would reveal the names and addresses of donors of such articles of archaeological, historical, or paleontological significance unless the donor approves disclosure.  This section does not apply to records needed to carry out the purposes of the Unmarked Human Burial Sites and Skeletal Remains Protection Act, or the federal Native American Graves Protection and Repatriation Act.

 

q. Library, archive, and museum materials acquired from nongovernmental entities and preserved solely for reference, research, or exhibition purposes, when the transfer of the materials to the records custodian is conditioned on the materials being kept confidential for a specified period of time.  This provision was added by 2019 Neb. Laws LB 375, § 1.

 

r. Job application materials submitted by applicants, other than finalists, who have applied for employment by any public body as that term is defined in the Open Meetings Act at Neb. Rev. Stat. § 84-1409.  “Job application materials” in this context means employment applications, resumes, reference letters, and school transcripts.  A “finalist” is any job applicant (i) who reaches the final pool of applicants, numbering four or more, from which the successful applicant is to be selected, (ii) who is an original applicant when the final pool of applicants numbers less than four, or (iii) who is an original applicant and there are four or fewer original applicants.  This exception to disclosure was added in 1999 as a result of 1999 Neb. Laws LB 137, and amended in 2007 as a result of 2007 Neb. Laws LB 389.

 

i. Under LB 1109, passed in 2016, “finalist” does not include any applicant for the chief executive officer of the University of Nebraska, or the chief administrative officers of the University of Nebraska-Lincoln, the University of Nebraska at Omaha, the University of Nebraska at Kearney, and the University of Nebraska Medical Center.  However, job application materials for a “priority candidate,” selected under the enhanced public scrutiny process set out in Neb. Rev. Stat. § 85-106.06, are subject to disclosure.  See 2016 Neb. Laws LB 1109.

 

s. Records obtained by the Public Employees Retirement Board (PERB) pursuant to Neb. Rev. Stat. § 84-1512.  Section 84-1512 allows PERB to receive, for purposes of administering the various retirement systems under its jurisdiction, such information from the Department of Administrative Services and other employers as is necessary for the efficient and accurate administration of those systems.  2009 Neb. Laws LB 188 added this exception to disclosure to the statute.  In 2019 Neb. Laws LB 33, § 6, this exception was expanded to include retirement records maintained by a Class V board of education and obtained by a board of trustees administering a retirement system under the Class V School Employees Retirement Act pursuant to Neb. Rev. Stat. § 79-989.  It was further expanded in 2021 to include records also maintained by PERB.  2021 Neb. Laws LB 147, § 44.

 

i. Express language in § 79-989, added by 2019 Neb. Laws LB 33, § 5, indicates that the records added to the exception in s. above “shall not be considered public records subject to sections 84-712 to 84-712.09 . . . .” However, members’ names and the dates of participation in the retirement system shall be considered public records.  See § 79-989(3), amended 2021 Neb. Laws LB 147, § 22.

 

t. Social security numbers, credit card, charge card or debit card numbers and expiration dates; and financial account numbers supplied to state and local governments.

 

i. This category was added to § 84-712.05 by LB 276 which was passed by the Legislature in 2002, and amended by 2024 Neb. Laws LB 43, § 11.

 

u. Information exchanged between a jurisdictional utility and city pursuant to the State Natural Gas Regulation Act, Neb. Rev. Stat. §§ 66-1801 through 66-1868.  This exception to disclosure was added as a result of 2009 Neb. Laws LB 658, § 7.

 

v. Draft records obtained by the Legislature’s Nebraska Retirement Systems Committee and the Governor from the Nebraska Public Employees Retirement Systems pursuant to § 84-1503(4), relating to experience studies.  This exception to disclosure was added as a result of 2016 Neb. Laws LB 447, § 45.

 

w. All prescription drug information submitted pursuant to § 71-2454, all data contained in the prescription drug monitoring system, and any report obtained from data contained in the prescription drug monitoring system.

 

i. This category was added to § 84-712.05 by LB 471, which was passed by the Legislature in 2016.  However, express language in the operative act indicates that the records enumerated in (w) above “are not public records.”  See § 71-2454(5).

 

x. Information obtained by any governmental entity relating to firearm registration, possession, sale, or use, that is obtained by the entity for purposes of an application or contained in the permit or license issued by the entity.  Any law enforcement agency may obtain this information upon request.  This exception was added by LB 902 in 2018.

 

y. The security standards, procedures, policies, plans, specifications, diagrams, and access lists and other security-related records of the State Racing and Gaming Commission (Commission), those persons or entities with which the commission has entered into contractual relationships, and the names of any individuals placed on the list of self-excluded persons with the commission as provided in section 9-1118.  The Commission may not withhold from the public any information relating to the amount paid any person or entity with which the commission has entered into a contractual relationship, the amount of any prize paid, the name of the prize winner, and the city, village, or county where the prize winner resides.  2022 Neb. Laws LB 876, § 25.

 

z. Records relating to the nature, location, or function of cybersecurity by the State or political subdivision or any other public entity subject to the Public Records Statutes, including, but not limited to, devices, programs, or systems designed to protect computer, information technology, or communications systems against terrorist or other attacks.  2024 Neb. Laws LB 43, § 11.

 

aa. Vital event records, unless all information designated as confidential under the Vital Statistics Act or all personally identifiable information is redacted by the Department of Health and Human Services.

 

bb. Information or records from historical indexes within 100 years after the event date of the information or record.

 

cc. The certificate number for any vital event certificate.

 

i. The exceptions in aa, bb, and cc were added as a result of 2024 Neb. Laws LB 1074, § 98, and become operative on January 1, 2025.

 

a. “The statutory language [in § 84-712(3)(c)] evinces the Legislature’s attempt to balance the public’s interest in the right of access to public records with the public body’s interest in not being unduly burdened in providing such access.”  Nebraska Journalism Trust v. Nebraska Dept. of Env’t and Energy, 316 Neb. 174, 190, 3 N.W.3d 361, 372 (2024).  By allowing a special service charge for labor in excess of four hours, the Legislature “recognized that voluminous requests could be disruptive to the public body.”  Id. at 190, 3 N.W.3d at 373.

 

a. When a writ of mandamus is sought pursuant to § 84-712.03 concerning the denial of access to public records, the party seeking the writ must first show:  (1) that the party is a citizen of the state or other person interested in the examination of the public records, (2) that the document sought by the party is a public record as defined by § 84-712.01, and (3) that the requesting party has been denied access to the public record guaranteed by § 84-712.  Jacob v. Nebraska Bd. of Parole, 313 Neb. 109, 982 N.W.2d 815 (2022); State ex rel. BH Media Group, Inc. v. Frakes, 305 Neb. 780, 943 N.W.2d 231 (2020); Huff v. Brown, 305 Neb. 648, 941 N.W.2d 515 (2020); Steckelberg v. Nebraska State Patrol, 294 Neb. 842, 885 N.W.2d 44 (2016); State ex rel. Unger v. State of Nebraska, 293 Neb. 549, 878 N.W.2d 540 (2016); Frederick v. City of Falls City, 289 Neb. 864, 857 N.W.2d 569 (2015); and Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009). 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).

 

b. A relator's showing in a mandamus action seeking public records is a threshold burden and not a matter of standing and jurisdiction; disapproving 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).  State ex rel. BH Media Group, Inc. v. Frakes, 305 Neb. 780, 789-790, 943 N.W.2d 231, 241 (2020).

 

c. After the relator’s threshold burden is met, if the public body holding the record wishes to oppose the issuance of a writ of mandamus, the public body must show, by clear and convincing evidence, that the public record at issue is exempt from the disclosure requirement under one of the exceptions set out in § 84-712.05 or § 84-712.08.  State ex rel. BH Media Group, Inc. v. Frakes, 305 Neb. 780, 943 N.W.2d 231 (2020); Huff v. Brown, 305 Neb. 648, 941 N.W.2d 515 (2020); Steckelberg v. Nebraska State Patrol, 294 Neb. 842, 885 N.W.2d 44 (2016); State ex rel. Unger v. State of Nebraska, 293 Neb. 549, 878 N.W.2d 540 (2016); Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009); 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).

 

d. When a writ of mandamus is sought pursuant to § 84-712.03 “regarding the denial or content of a fee estimate,” the party seeking the writ “has the burden to satisfy three elements:  (1) The requesting party is a citizen of the state or other person interested in the examination of the public records, (2) the requesting party sought to obtain a copy of a public record as defined by § 84-712.01, and (3) the requesting party was denied a fee estimate or was provided with a fee estimate that includes a fee the requesting party asserts is unauthorized by § 84-712(3).  Thereafter, if the public body holding the record wishes to oppose the issuance of a writ of mandamus, the public body must show, by clear and conclusive evidence, that the fees charged are authorized by § 84-712(3).”  Nebraska Journalism Trust v. Nebraska Dept. of Env’t and Energy, 316 Neb. 174, 186, 3 N.W.3d 361, 370-71 (2024).  (“Resident” should likely replace citizen as a result of 2024 Neb. Laws LB 43, § 8.)