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Nebraska

What is the law?

Binding, on-point law (about)

The Nebraska public records law provides access to records "except if federal copyright law otherwise provides." Neb. Rev. Stat. § 84-712. This does not in itself address whether the state itself is authorized to hold copyrights since third-party copyrighted material is a common issue with public records laws, but strongly suggests the possibility.

Advisory sources (about)

The Nebraska Attorney General notes that while the right to inspect public records has existed in Nebraska law since 1866, "[p]rior to 2000, the Public Records Statutes did not expressly provide that citizens and interested persons had a right to obtain copies of public records." The 2000 amendment, allowed for copying for the first time and further explicitly excluded copyrighted material suggesting that the legislature was aware of the issue and intended to provide for it in the statute.

Related law (about)

The Nebraska Constitution provides that "[t]he copyright of the state reports shall forever remain the property of the state." Neb. Const. art. V, § 8. This is notable for being the only state constitution which explicitly declares a public document to be copyrighted by the state, as well as for being unconstitutional under Supreme Court precedent. [1]

Public records law (about)

The Nebraska public records law has been in effect since 1866 and can be found at Neb. Rev. Stat. § 84-712.

Does the public records law restrict the use of disclosed records?

Generally speaking, the Nebraska public records law does not require a requestor to state the purpose for which they are requesting records. Commercial use is an exception to this, however: Neb. Rev. Stat. § 84-712.05(3) exempts from disclosure "proprietary or commercial information which if released would give advantage to business competitors and serve no public purpose," allowing the state to consider whether requests for certain information serve a "public purpose" when making records request decisions. See Op. Att'y Gen. No. 92068 (May 7, 1992); Op. Att'y Gen. No. 97033 (June 8, 1997).

Specifics and examples (about)

Additional things to consider (about)

Nebraska limits public records requests to "citizens of this state and all other persons interested in the examination of the public records." Neb. Rev. Stat. § 84-712. In practice, the inclusion of "all other persons interested in the examination of the public records" in the statutory language probably indicates that public records requests are not limited to Nebraska citizens. Bolstering that argument, Neb. Rev. Stat. § 84-712.03 provides remedies to "any person" whose request is denied. Nonetheless, the law is primarily focused on providing access to Nebraska citizens. See Neb. Rev. Stat. § 84-712.01(2) (fiscal records are provided "in order that the citizens of this state shall have the full right to know of and have full access to information on the public finances." (emphasis added)). Citizen-only public records laws have been previously upheld by the Supreme Court in McBurney v. Young, 133 S. Ct. 1709, 185 L. Ed. 2d 758 (U.S. 2013).

Under Nebraska law, "[a]ll records made or received by or under the authority of or coming into the custody, control, or possession of state or local agencies in the course of their public duties are the property of the state or local agency concerned" and unauthorized destruction or removal are penalized. Neb. Rev. Stat. § 84-1213.

Where else to go

• Nebraska Attorney General, Outline of Nebraska Public Records Statutes, available at http://www.ago.ne.gov/public_records/public_records_statutes.

• Reporter's Committee for Freedom of the Press, Open Government Guide: Access to Public Records and Meetings in Nebraska, available at http://www.rcfp.org/rcfp/orders/docs/ogg/NE.pdf.

• Nebraska State Historical Society, available at http://www.nebraskahistory.org/index.shtml.

Bibliography

Cases

• McBurney v. Young, 133 S. Ct. 1709, 185 L. Ed. 2d 758 (U.S. 2013), available at https://scholar.google.com/scholar_case?case=2705296316682556891.

Statutes

• Neb. Rev. Stat. § 84-712, available at http://nebraskalegislature.gov/laws/statutes.php?statute=s8407012000.

• Neb. Const. art. V, § 8, available at http://nebraskalegislature.gov/laws/articles.php?article=V-8.

• Neb. Rev. Stat. § 84-712.05(3), available at http://nebraskalegislature.gov/laws/statutes.php?statute=84-712.05.

• Neb. Rev. Stat. § 49-707, available at http://nebraskalegislature.gov/laws/statutes.php?statute=49-707.

• Neb. Rev. Stat. § 24-212, available at http://nebraskalegislature.gov/laws/statutes.php?statute=24-212.

• Neb. Rev. Stat. § 84-712.03, available at http://nebraskalegislature.gov/laws/statutes.php?statute=84-712.03.

• Neb. Rev. Stat. § 84-712.01, available at http://nebraskalegislature.gov/laws/statutes.php?statute=84-712.02.

• Neb. Rev. Stat. § 84-1213, available at http://nebraskalegislature.gov/laws/statutes.php?statute=84-1213.

Administrative Rules

Attorney General Opinions

• Op. Att'y Gen. No. 92068 (May 7, 1992), available at https://ago.nebraska.gov/ag_opinion_view?oid=3499.

• Op. Att'y Gen. No. 97033 (June 8, 1997), available at https://ago.nebraska.gov/ag_opinion_view?oid=2293.

Other

• Nebraska Attorney General, Outline of Nebraska Public Records Statutes, available at http://www.ago.ne.gov/public_records/public_records_statutes.

• Reporter's Committee for Freedom of the Press, Open Government Guide: Access to Public Records and Meetings in Nebraska, available at http://www.rcfp.org/rcfp/orders/docs/ogg/NE.pdf.

• National Association of Counties, Open Records Laws: A State by State Report (2010), available at http://www.naco.org/newsroom/pubs/Documents/County%20Management%20and%20Structure/Open%20Records%20Laws%20A%20State%20by%20State%20Report.pdf.

• Nebraska Game and Parks Commission, Copyright Information & Use of Content, available at http://outdoornebraska.ne.gov/admin/about.asp.

Footnotes

• [1] This provision, enacted in 1875, predates the 1888 Banks v. Manchester decision. Judicial opinions cannot be copyrighted. The Supreme Court in Banks v. Manchester, 128 U.S. 244, 9 S. Ct. 36, 32 L. Ed. 425 (1888) invalidated an asserted copyright by a private publisher, an Ohio citizen, for copyright in the state court reports, holding that any content written by a judge cannot be copyrighted because "[t]he whole work done by the judges constitutes the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all, whether it is a declaration of unwritten law, or an interpretation of a constitution or a statute." See also Nash v. Lathrop, 142 Mass. 29, 35, 6 N.E. 559, 560 (1886) and Wheaton v. Peters, 33 U.S. 591, 668, 8 L. Ed. 1055 (1834). Only materials ancillary to the court opinion such as the "title-page, table of cases, head notes, statements of facts, arguments of counsel, and index" may be copyrighted. Callaghan v. Myers, 128 U.S. 617, 649, 9 S. Ct. 177, 185, 32 L. Ed. 547 (1888). Neb. Const. art. V, § 8, and its enacting statute, Neb. Rev. Stat. § 24-212, must, therefore, only apply to the materials added to the reports by the reporter or publisher, and not to the judicial decisions themselves.