By Deena Winter | Nebraska Watchdog
Updated 12:14 p.m. Feb. 25
LINCOLN — Charging thousands of dollars for public records could be a thing of the past in Nebraska, but it’s going to be a battle.
Sen. Bill Avery said one reason he introduced a plan to crack down down on the fees public agencies can charge people for public records is a situation where the state health department told a person it would cost $126,340 for the records they wanted.
To be fair, sometimes people make unreasonable requests, like asking to see every email an agency has ever sent or received. But Avery said he introduced his bill, LB363, to address public agencies that have been charging hundreds, sometimes thousands of dollars to people seeking copies of public documents — sometimes in an attempt to dissuade the person asking.
“Public records are owned by the people,” Avery said during debate on his bill Friday in the Nebraska Legislature. “The public entities are the custodians, not the owners.”
He said some government agencies are charging exorbitant fees for accident reports — using them to raise money. Others charge for staffers’ time or attorneys’ time to go through the documents and look for information that can be redacted under the law.
“They are making public records inaccessible to the ordinary citizen,” Avery said. “They’re making a mockery of our public records law.”
Nebraska law allows government agencies to charge for the actual cost of making copies of records, and a law passed in 2000 allows them to charge for staff time. Avery said that change 13 years ago “was probably a mistake,” but was meant to address unreasonable, “sometimes harassing” records requests.
Avery said the attorney general told him that at one point he had 15 people in his office working on open records requests while he was in the U.S. Senate race.
Avery’s bill allows the government to charge a fee for making copies, but it cannot exceed its “reasonably calculated actual added costs” for things such as paper, toner and equipment. Public agencies would no longer be able to charge for the first six hours of employees’ time gathering the documents and making copies. After six hours, a special service fee can be charged for employees’ time — but not for attorneys’ time, since “you don’t have to have a legal degree to be able to do that,” Avery said.
However, late opposition to the bill from county assessors in rural counties — who said they didn’t have the staff to not charge for those first six hours — prompted Avery to promise to amend the bill to four hours. The bill passed the first round of voting Monday with that promise.
Once an estimated cost of a records request is given, the person making the request would have 10 days to decide if they still want the records or want to narrow the request, under the bill. If the person requesting documents doesn’t respond within 10 days, the agency is not required to fulfill the request.
Gretna Sen. John Murante said officials in smaller, rural counties may not have the staff to deal with requests if they lose the ability to charge for the first six hours of staff time. But Avery stood firm, saying he negotiated down to that number.
“I agreed to six hours very reluctantly,” he said. “This was a long, difficult and painful negotiation because frankly, a lot of these public entities didn’t want any change in the law at all.”
Omaha Sen. Ernie Chambers railed against public employees who try to conceal public information by charging high fees, saying they should be criminally sanctioned.
“They are trying to manipulate the law,” he said. “If they don’t want to comply with the law, get out of that position. If these lazy employees don’t want to do that work, fire them.”
But Cedar Rapids Sen. Kate Sullivan said she’s heard from some county assessors who have limited staff to respond to records requests.
“Larger counties, quite frankly, have the resources and have the additional staff,” she said, “but in a county office with one or two employees … that’s nearly a whole day of work.”
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