Seeing Red Nebraska has previously covered abuses of our state open records law. Open records laws (also called FOIA, though technically FOIA is federal) are important instruments of governmental transparency–in theory. In practice, some of the most powerful officials avoid open records laws either by exempting themselves from the law–as is the case with federal congresspersons and our state legislators–or by using private calendars and email accounts to hide communications from any possibility of being discovered–as our governor does. The governor has even attempted to exempt records pertaining to execution drugs from public view. Meanwhile, open records requests are increasingly used by rightwing political groups to scrutinize the email of individuals who happen to be employed by the state (like me) in the hope of finding anything that can be weaponized against them to curtail their private speech (such as this blog). This is not what ORRs and FOIA were meant to do.
The latest abuses are coming from city officials. When Chris Dunker of the Lincoln Journal Star–who has been doing the kind of high quality reporting on recent political protests that is all too rare in our state–submitted an open records request to the Lincoln Police Department for communications and other records pertaining to crowd control equipment, the city responded by saying they would bill him $95,000 in computer run time and take nine to ten months beyond the statutory guidance of four days to produce the results.
Similarly but less dramatically, Nebraskans Against Gun Violence (which Seeing Red Nebraska’s Melody Vaccaro and I help lead) recently requested emails sent to the Lincoln Board of Education and Superintendent Steve Joel concerning school resource officers during a one-month time period in 2020. LPS responded that they would charge almost $700 for this fairly modest request and would take an undisclosed amount of additional time to produce the records. When Vaccaro modified the request to include fewer recipients, LPS replied that they would still charge almost $300 and take an undisclosed amount of additional time. Vaccaro requested an explanation of the cost, to which LPS responded, “The modified email search you requested resulted in 85 emails matching the criteria you provided. The staff time required to review each email for anything that is protected employee or student information or that staff determine is attorney-client privilege is what makes up the charge. The amount is an estimate calculated by a certain number of minutes per email.”
Well, this is illegal.
The Nebraska open records statute specifies that “the fee for records shall not include any charge for the services of an attorney to review the requested public records seeking a legal basis to withhold the public records from the public.” Perhaps LPS is going to claim that they have someone other than an attorney performing a legal review of emails?
Additionally, governmental entities may not charge for the first four hours of any other labor required to respond to the request, and must explain any delay that causes them to exceed the four-day deadline.
As our nation and city suffer from a pandemic and economic woes, and as we struggle to advance racial equity, it is crucial that we take note of the many different ways our democracy is being eroded. The electoral college, gerrymandering, voter ID, and restrictions on people with felonies are a few ways that those in power seek to keep it at all costs, and playing games with laws meant to empower the public to watch the government is another.