$44,000 to Find Out if Government Is Keeping Its Citizens Safe?

$44,000. That’s how much Nebraska state bureaucrats want to charge a journalist to access public records that could expose the government’s failure to keep its citizens safe. It’s not only wrong—it’s blatantly illegal, so the Goldwater Institute is urging the Nebraska Supreme Court not to let this injustice stand.

Flatwater Free Press reporter Yanqi Xu spent months investigating Nebraska’s abnormally high pediatric cancer rate (the highest west of Pennsylvania) and discovered that the likely cause is the state’s nitrate-laced drinking water. She reported that 59 community water supplies violated the Environmental Protection Agency’s (EPA) safe drinking water limit on nitrate over the previous 12 years, subjecting Nebraskans to drinking water with dangerously high amounts of this chemical. So, Xu did as any responsible journalist would and submitted a Nebraska Public Records Act (NPRA) request to verify information from a tip—that these dangerous conditions were a result of the government’s failure to do its job of keeping residents safe.

In April 2022, Xu sought emails from the Nebraska Department of Environment and Energy (NDEE) that contained the keywords “nitrate,” “nutrient,” “fertilizer,” or “nitrogen.” After discussions with the department, she narrowed her request twice, reducing the timeframe from 12 years to five and focusing on six specific divisions within the department.

It didn’t matter. Even after Xu made every effort to specify her request, the agency responded with an outrageous cost estimate of $44,103.11 to produce the emails, with the majority of labor fees attributed to “analyzing” records. This meant that individual employees would evaluate whether their own emails could be legally withheld.

The Nebraska Journalism Trust, the nonprofit that publishes the Flatwater Free Press, sued the NDEE, asking the court to order the agency to comply with the state’s public records statute. After all, that law allows agencies to charge for the costs of “searching, identifying, physically redacting, or copying” records, but not for reviewing them. The District Court of Lancaster County, Neb., ruled in favor of Nebraska Journalism Trust, concluding that the NDEE could not charge the Flatwater Free Press for time spent conducting a legal review of requested records. The Nebraska Supreme Court accepted immediate review of the case after the agency appealed, and our friends at the law firm Husch Blackwell filed a friend-of-the-court brief in this important government transparency case on behalf of Goldwater’s American Freedom Network of pro bono attorneys.

The U.S. Supreme Court has explained that the Freedom of Information Act’s “basic purpose…is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold governors accountable to the governed.” And in describing the Nebraska Public Records Act, Nebraska courts have said that “the welfare of the people is best served through liberal public disclosure of the records of the three branches of government,” and that the state legislature passed the public records statute so “that citizens of this state shall have the full right to know of and have full access to information on the public finances of…the public bodies and entities created to serve them.” This case provides a prime example of the type of information that the public should be able to access: records that reveal how government action may have led to severely detrimental health outcomes.

Government agencies around the nation have already shown that they’ll take advantage of any and all tools to keep potentially inconvenient records out of public view, even when the information sought is easy to produce.  For instance, in Joshua, Texas, the school district insisted that a concerned mother pay over $7,000 just to find out how often students were being bullied. Similarly, in Fort Worth, Texas, the district wanted $1,267.50 before producing a simple list of books that teachers were allowed to assign. In both cases, the school districts backed down only after Goldwater’s American Freedom Network stepped in to challenge these prohibitive charges. And in South Kingstown, RI,  a local mom faced a staggering $74,000 demand just to find out what her child would be learning in kindergarten.

The Goldwater Institute and its American Freedom Network will continue the fight for transparency around the country. But citizens should never be forced to seek legal counsel to obtain records they are entitled to, and the Nebraska Supreme Court must make this clear.

Oral arguments in this case are set for early February.

You can read our brief here.

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If you are interested in putting your legal skills and experience to practice in defense of liberty and would like to work on cases like this one as part of the Goldwater’s Institute’s American Freedom Network, please visit this page or contact Kamron Kompani at kkompani@goldwaterinstitute.org.

Kamron Kompani is the Legal Programs Manager at the Goldwater Institute.