Evertson v. City of Kimball, 278 Neb. 1

Summary

The Supreme Court of Nebraska considered whether investigative records held by private investigators were public records under Nebraska's public records statutes after the City of Kimball delegated an investigation of alleged racial profiling. The court held that the records were public records because the investigators performed a delegated government function and the City was entitled to possess the materials, but ruled that the records were exempt from disclosure under Neb. Rev. Stat. § 84-712.05(5). The court also reversed the award of attorney fees and affirmed in part, reversed in part, and remanded with directions.

Holdings

1. Materials in a private party's possession are public records under § 84-712.01 when a public body delegated a governmental function to the private party, the private party prepared the records under that delegation, the public body was entitled to possess the materials to monitor performance, and the records were used to make a decision affecting the public interest. Actual physical possession by the public body is not required.
2. The investigative materials were exempt from disclosure under Neb. Rev. Stat. § 84-712.05(5). An investigation of a public body's employee is for law-enforcement purposes when it focuses on specifically alleged illegal acts, even if the Legislature has not provided civil or criminal enforcement provisions for the alleged violation.
3. The appellees were not entitled to attorney fees under § 84-712.07 because, after the investigatory exemption applied, they had not substantially prevailed.
4. The court could review the otherwise moot appeal under the public interest exception because the issues concerned recurring public-records questions and authoritative guidance for public officials was desirable.

Questions Presented

1. Whether written investigative materials prepared by private investigators retained by a city are public records under Neb. Rev. Stat. § 84-712.01 when the city delegated a governmental investigative function to the investigators and did not take physical possession of the materials.
2. Whether the investigative materials were exempt from disclosure under Neb. Rev. Stat. § 84-712.05(4), (5), or (7), particularly the investigatory-records exemption in subsection (5).
3. Whether the appeal should be reviewed under the public interest exception to mootness after the district court had disclosed the records.
4. Whether the appellees were entitled to attorney fees under Neb. Rev. Stat. § 84-712.07.

Disposition

reversed_and_remanded