Legislature Passes Bill to Change the Nebraska Public Records Statutes and Open Meetings Act

Less than one week after the Nebraska Supreme Court issued an important decision for public entities in Nebraska Journalism Trust v. Nebraska Department of Environment, the Legislature passed a bill nullifying a key piece of the Court’s decision and making other changes to the Nebraska Public Records Statutes and Open Meetings Act. On March 14, 2024, the Court held that a public entity may charge a fee for nonattorney staff time spent reviewing documents for responsiveness and whether the documents may be withheld pursuant to the Public Records Statutes.  On March 21, 2024, the Legislature passed LB 43, which states that for requests made by a Nebraska resident, defined as including a person domiciled in Nebraska and news media without regard to domicile, a public entity may not charge a fee for attorney or nonattorney time to review the requested records to determine whether the records may be withheld from the request.  The Governor signed the bill on March 27, 2024, and the bill went into immediate effect. Public entities should begin following the fee restrictions set out in LB 43 immediately.

New Additions to the Public Records Statutes

LB 43’s amendments to the Public Records Statutes distinguish the fees that a public entity may charge depending on the domicile of the person who submits the request.  For residents of Nebraska, which again, are defined as including news media regardless of location, the public entity may charge for staff time spent searching, identifying, physically redacting, or copying records.  The amendments explicitly state that no fee may be charged for the services of an attorney or other person reviewing the records to determine whether the record may be withheld from the request.  The bill also increases the amount of free staff time that must be excluded for any charge from four (4) hours to eight (8) hours. 

For requests made by nonresidents of Nebraska, the public entity may charge for the time spent by nonattorney staff or an attorney for “searching, identifying, physically redacting, or reviewing” the records.  The bill does not require that the public entity exclude any staff time for the charges.

LB 43 adds a new justification to withhold records “relating to the nature, location, or function of cybersecurity” of public entities.  The Nebraska Information Technology Commission will adopt related rules and regulations.

Personal Privacy Protection Act

The bill also includes a new Personal Privacy Protection Act, which exempts from disclosure under the Public Records Statutes personal information a public entity may have regarding the members, supporters, volunteers, or donors of nonprofit entities, including the public entity’s related and supporting foundations and nonprofit entities.  The bill provides that a public entity may not disclose such personal information unless the individual who is identifiable provides permission for the information’s release. The bill contains a number of exceptions, which public entities should review closely before responding to requests for personal information of members, supporters, volunteers, or donors of supporting nonprofit organizations. 

New Requirements in the Open Meetings Act

The amendments to the Open Meetings Act require that except for closed sessions, a public body must allow members of the public an opportunity to speak at each meeting.  Previously, public bodies were not required to allow members of the public to speak at each meeting, so long as members of the public were permitted to speak at some meetings of the public body.

LB 43 passed with an emergency clause and its provisions regarding the Public Records Statutes, Personal Privacy Protection Act, and Open Meetings Act took effect immediately after the Governor signed the bill on March 27, 2024.