The American Civil Liberties Union of Nebraska is conducting what they
describe as a “statewide survey about sex education courses as well as
district policies relating to pregnant and parenting students.” The
organization has send a lengthy public records request asking for a laundry
list of documents related to sex education; school policies and practices
related to pregnant and parenting students; and agencies to whom schools
refer pregnant and parenting students. The ACLU letter concludes by stating
that “[a]s you might know, Nebraska open records requests must be
provided within four (4) days of receipt of this letter, but we are willing to
give you fourteen (14) days to provide these materials.”
Response Within Four Business Days. We have reviewed ACLU
Nebraska’s letter and have consulted with the Nebraska Attorney General’s
Office about it. We are advising KSB clients that this is a valid public records
request which requires a response. However, we do NOT believe that the
ACLU has the power to unilaterally change the statutory timeline in the
Nebraska Public Records Act. Therefore, every school that received this
request today will have to respond no later than Monday, July 11.
The Public Records Act states that if the entire request cannot with
reasonable good faith efforts be fulfilled within four business days “due to
the significant difficulty or the extensiveness of the request,” you can
instead communicate back to the requester. That communication should
include a written explanation of why, including the earliest practicable date
for fulfilling the request, an estimate of the expected cost of any copies, and
an opportunity for the requester to modify or prioritize the items within the
request.
Cornhusker Plaza P: (402) 804-8000
301 S. 13 th St., Suite 210 F: (402) 804-8002
Lincoln, NE 68508 KSBSchoolLaw.com
Fees for Gathering and Copying These Documents. As we read
the ACLU’s requests, we believe it is highly likely that you will have to reach
out to every teacher in the district to ascertain whether they teach any unit
it will take your staff more than four hours to search, identify, redact or copy
these documents, you can charge for that staff time. NEB. REV. STAT. § 84-
712(3)(c). Alternatively, if you decide to pay a third party (an independent
contractor or even your educational service unit) to search your computer or
paper files and gather these documents, you can charge for all of that
additional expense. You may also charge a fee for your actual costs (e.g.
copying, printing, computer analysis) in responding. You are, however,
prohibited from charging the requester for the cost of your attorney
reviewing the public records response.
Deposit. You may request a deposit prior to producing the records if
you reasonably calculate that the total fee (including copying, staff, and
contractor costs) for providing the records would exceed $50.00. Mr. Fox
will then have 10 days either to narrow the scope of his request or to
provide you with the requested deposit.
If you would like assistance in preparing a response to Mr. Fox or if
you have questions about the public records statutes in general, you should
consult with your school district’s attorney or call Karen, Steve, or Bobby.