Here we were, patiently waiting for flowers to bloom and tee sheets to open. Now we’ve got snow, cold, and dispositive Unicameral activity in late March. We didn’t sign up for this.
Last week with the passage of LB 43 (another smash-6-into-1 bill), the Unicameral made changes to Nebraska’s two “sunshine” laws on open meetings and public records. Here’s the TLDR: while you’ll hear a lot about LB 43 in the coming months and during policy update time, it’s unlikely anything in LB 43 will change your policies or practices…yet.
Beginning in July, the Open Meetings Act will require each public body to “allow members of the public an opportunity to speak at each meeting.” There may be some exceptions that school lawyers figure out for narrow special meetings, such as for things like personnel hearings and student discipline appeals, but you should plan on allowing for public comment as a matter of course at the vast majority of your meetings.
The public records law changes are a mixed bag. The good news for schools is that beginning in July, you will be able to charge for all hours (including the first 4) for employees “searching, identifying, physically redacting, copying, or reviewing” records responsive to requests made by individuals who are not residents of Nebraska or by entities (like SmartProcure). Schools will also be able to charge these requestors for attorney time needed to “review the requested public records.” This is a big deal when those statewide requests come in from entities outside of Nebraska with incredibly broad scopes.
However, that’s a tradeoff for the changes made when the request is from a “resident” of Nebraska. Once the changes are effective in July, schools will not be allowed to charge any fee for searching, identifying, redacting, or copying until after the first 8 hours of employee time. Nor can you charge a fee for an attorney “or any other person” to review the request seeking a legal basis to withhold records. How this will square with a fairly new Nebraska Supreme Court case on the issue of time spent “reviewing” records is unclear. More on that soon during policy update time for KSB policy subscribers.
LB 43 contains a few other important items of note for schools and ESUs. It establishes the “First Freedom Act,” which protects religious expression and exercise with particular protections for wearing tribal regalia on school grounds and at school functions. It also adds an exception to disclosure of public records containing cybersecurity measures of the state and political subdivisions, along with a couple other new laws we’ll hit on at a later date.
For now, don’t believe everything you’ve read about LB 43, unless you read it here or in Justin Knight’s (of the Perry Firm) nice summary from last Friday. Administrators, you should touch base with your board members or forward this like it’s hot, just in case they’ve only seen the (incorrect) summaries of LB 43 in the media, which are saying that all these changes are effective immediately. If you have any other questions about LB 43 or the existential despair set on by our 4th winter in Nebraska this year, reach out to us at ksb@ksbschoollaw.com.