State ex rel. BH Media Group, Inc., d/b/a Omaha World-Herald v. Scott Frakes; State ex rel. Lee Enterprises, Inc., d/b/a Lincoln Journal Star v. Scott Frakes; State ex rel. Amy A. Miller and ACLU of Nebraska Foundation v. Scott Frakes

Summary

The Nebraska Supreme Court reviewed consolidated mandamus actions seeking disclosure under Nebraska’s public records statutes of records related to the Nebraska Department of Correctional Services’ acquisition of lethal-injection drugs. The court held that the relators established prima facie claims for access and that the director failed to prove that most requested records were exempt under the statute protecting execution-team identities. It affirmed in part, reversed in part, and remanded with directions regarding redaction and disclosure, while dismissing premature appeals.

Holdings

1. A requester seeking access to public records need establish only a prima facie claim that the requested material is a public record and that access was denied; whether the claim ultimately has merit is not a question of standing or subject matter jurisdiction. The relators had standing, and the district court had jurisdiction.
2. A requester must show that the requester is a citizen or interested person, that the requested material is a public record, and that access was denied. Once that prima facie showing is made, the public body must prove by clear and conclusive evidence that a statutory exemption applies.
3. Section 83-967(2) is an 'other statute' that creates a specific exemption from disclosure for execution-team identities and information reasonably calculated to lead to those identities, but it does not create a complete exception to the operation of Nebraska's public-records statutes.
4. Frakes failed to prove by clear and conclusive evidence that the communications, DEA forms, inventory logs, photographs, and invoices were reasonably calculated to lead to the identity of an execution-team member. The district court therefore properly ordered those records disclosed.
5. A timely motion to alter or amend is a terminating motion. When such a motion is filed, a notice of appeal filed before the trial court rules on the motion has no effect, and the district court retains jurisdiction to rule on the motion and award attorney fees and costs.
6. A prevailing public-records requester may recover reasonable attorney fees even when a third party has agreed to pay or reimburse those fees; the statute does not require that the fees be actually paid solely by the prevailing party.
7. An agency may not withhold an entire document merely because some information is exempt. It must disclose reasonably segregable nonexempt portions after redacting protected information, unless the exempt and nonexempt portions are inextricably intertwined.

Questions Presented

1. Whether the relators established a prima facie claim for mandamus relief under Nebraska's public-records statutes and whether the district court had jurisdiction.
2. Whether Neb. Rev. Stat. § 83-967(2) operates as a complete exception to the public-records statutes or instead as a narrow exemption from disclosure.
3. Whether Frakes proved by clear and conclusive evidence that the requested records were exempt because they identified, or were reasonably calculated to lead to the identity of, an execution-team member.
4. Whether a timely motion to alter or amend filed after the notice of appeal deprived the district court of jurisdiction to award attorney fees and costs.
5. Whether nonexempt portions of purchase orders and chemical-analysis reports had to be segregated, redacted, and disclosed under Neb. Rev. Stat. § 84-712.06.

Disposition

reversed_and_remanded