We have had several clients report that they have received requests under Nebraska’s Public Records Act from people seeking a long list of various types of bonds and insurance policies. The letters are based on a suggested format from a national website.
Do Not Panic. Despite the fact that the letters refer to two Nebraska statutes, the letters also request numerous documents which Nebraska school districts are not required to have. If you look down the list of requested documents and you know that you do not possess many of these documents, that does not mean that your district has done anything wrong.
Call Your Lawyer. As we noted above, these letters are based on samples from a nationwide website that mixes and matches laws from numerous states as well as federal and even international law. We think most public records requests can be handled locally. However, we believe this specific request will likely require you to get help from your school district’s attorney to formulate a compliant response.
Response Within Four Business Days. 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.
Fees for Gathering and Copying These Documents. As we read these requests, we believe it is highly possible that you will have to expend significant staff time in responding to these requests. Nebraska law allows you to charge for staff time in responding to public records requests after the first four hours. Neb. Rev. Stat. § 84-712(3)(c). Alternatively, if you have to pay a third party to find and produce 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. The person making the request will then have 10 days either to narrow the scope of the request or to provide you with the requested deposit.
And one more thing . . . Although these public records requests will require time and effort to respond, we want the education community to be cautious in the conversations we have about them. The public policy of our state gives people the right to request these documents. We certainly do not want to discourage school district patrons from being interested in the operation of their local schools. We also want to make sure that schools scrupulously comply with the letter of the law in responding to these requests. If you have any questions or concerns about navigating requests under Nebraska’s Public Records Act, feel free to call Karen, Steve, Bobby, Coady, Tyler, Sara, or Jordan, or email all of us using ksb@ksbschoollaw.com.