Boppre v. Overman, A-15-1135.

• Decision Date: 22 November 2016
• Docket Number: No. A-15-1135.,A-15-1135.
• Parties: JEFF BOPPRE, APPELLANT, v. MARK OVERMAN, SCOTTS BLUFF COUNTY SHERIFF, APPELLEE.
• Court: Nebraska Court of Appeals

JEFF BOPPRE, APPELLANT, v. MARK OVERMAN, SCOTTS BLUFF COUNTY SHERIFF, APPELLEE.

No. A-15-1135.

NEBRASKA COURT OF APPEALS

November 22, 2016

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Scotts Bluff County: RANDALL L. LIPPSTREU, Judge. Affirmed in part, and in part reversed and remanded with directions.

Jeff Boppre, pro se.

Dave Eubanks, Scotts Bluff County Attorney, for appellee.

MOORE, Chief Judge, and RIEDMANN and BISHOP, Judges.

BISHOP, Judge.

I. INTRODUCTION

Jeff Boppre, an inmate at the Tecumseh State Correctional Institution, sent public records request letters to Scotts Bluff County Sheriff Mark Overman under Neb. Rev. Stat. § 84-712 (Reissue 2014), seeking records related to two murders that Boppre was convicted of committing, as well as records related to the deaths of two other individuals. Boppre's requests were mostly denied, and he sought a writ of mandamus from the district court for Scotts Bluff County. Boppre's petition for writ of mandamus was sustained in part and denied in part. Boppre appealed the district court's decision. For the reasons that follow, we affirm in part, and in part reverse and remand with directions.

II. BACKGROUND

Boppre sent a letter to Overman dated March 14, 2015, wherein Boppre requested copies of various "public records" pursuant to § 84-712. Boppre set forth 20 separately numbered paragraphs containing his requests for copies of various documents, records, photographs, evidence, and other items related to "the Valdez & Condon murders where Jeff Boppre was wrongly convicted." We have set forth the contents of Boppre's 20 separately numbered paragraphs in full in appendix A, which is attached to our opinion. In response to Boppre's requests, Overman sent a letter to Boppre stating, "Investigative records are not subject to the public records request that you have filed." Overman further stated, "To the best of my knowledge, everything that you have requested that is in the custody of law enforcement has been turned over to your attorneys." Overman's responses are incorporated into appendix A.

On April 6, 2015, Boppre filed a pro se "Petition for Writ of Mandamus" asking the court to issue an order compelling Overman to "release all requested documents, records and any other evidence held in custody or in the Scottsbluff [C]ounty, pursuant to the Nebraska Public Records [L]aw." See Neb. Rev. Stat. § 84-712 et seq. (Reissue 2014) (public records statutes). Boppre referenced and incorporated into his petition his letter to Overman dated March 14, 2015. He also attached the letter Overman sent in response. Boppre alleged that Overman's response was not in compliance with § 84-712.04. He also asked the court to enforce the penalty provisions of § 84-712.09 against Overman for his violations of the public records statutes.

In his answer filed on April 23, 2015, Overman generally denied Boppre's allegations, stating that specific requests by Boppre were statutorily exempt from public access. Overman claimed other items requested by Boppre were previously provided to Boppre's various attorneys over the last 27 years, or were items not in the possession of or otherwise available to Overman. Overman's responses are incorporated into appendix A.

Boppre sent another letter to Overman dated April 23, 2015, wherein Boppre requested copies of more "public records" pursuant to § 84-712. Boppre set forth 40 separately numbered paragraphs containing his requests for copies of various documents, records, photographs, evidence, and other items related to the Valdez and Condon murders, the death of Dolores Boppre, the death of Steven Schlothauer, and "Joe Richter who was shot in the head." We have set forth the contents of Boppre's 40 separately numbered paragraphs in full in appendix B, which is attached to our opinion. In response to Boppre's requests, Overman sent a letter to Boppre individually addressing each of his 40 requests. With regard to some of the requests, Overman stated "[w]e are providing you with the public record portion of the report." With regard to the remaining requests, Overman gave variations of the following: "[w]e have no such records"; "[t]he reports requested are not public record"; or "all of the requested items have been turned over to your attorneys through the discovery process, and witnesses testified to the circumstances at trial. The trial transcript is available to you through your attorneys." Overman's responses are incorporated into appendix B.

On April 27, 2015, Boppre filed a "motion for depositions," pursuant to Neb. Rev. Stat. § 29-1917 (Cum. Supp. 2014) (allowing for depositions of witnesses in felony prosecutions). Boppre asked that the court permit him to take the depositions of several people he believed hadtestimony which "may be material or relevant" to the mandamus action. He alleged that the evidence the individuals would provide to the court "is relevant to the wrongful conviction of [Boppre] for the past 27 years and is significant to obtain the requested information that Defendant Mark Overman has waived his right to argue the release of all information."

On June 29, 2015, Boppre filed an amended petition for writ of mandamus asking the court to issue an order compelling Overman to "release all requested documents, records and any other evidence held in custody or in the Scottsbluff [C]ounty, pursuant to the Nebraska Public Records [L]aw." Boppre referenced and attached his letters to Overman dated March 14 and April 23, as well as the letters Overman sent to Boppre in response. Boppre again alleged that Overman's responses were not in compliance with § 84-712.04. He also asked the court to enforce the penalty provisions of § 84-712.09 against Overman for his violations of the public records statutes.

A hearing was held on October 14, 2015. The court received into evidence the letters from Boppre to Overman dated March 14 and April 23, as well as the letters Overman sent to Boppre in response. The court also received into evidence Boppre's "motion to offer evidence at October 14^th hearing for writ of mandamus" with six attachments (various motions, journal entries, and documents from his criminal case). Boppre called one witness, a lieutenant with the Scotts Bluff County Sheriff's Office. However, the district court sustained the State's objections to most of Boppre's questions because they went to the merits of Boppre's claims that he was "wrongfully convicted" rather than whether or not the writ of mandamus should be issued.

In a "Memorandum Order" filed on November 17, 2015, the district court denied Boppre's motion to take depositions. The court then addressed the merits of Boppre's amended petition for writ of mandamus and found that most of the requested records were exempt investigatory records. The court said:

[I]t is abundantly clear Boppre's mandamus action seeks documents directly related to the Condon/Valdez murder investigation and the 1992 investigation of Dolores Boppre's death. It is equally clear such documents generally fall within the plain and ordinary meaning of the Section 84-712.05(5) exception because they are records developed or received by law enforcement agencies as part of an investigation. That is true even where the investigation was against Boppre. SeeSileven v. Spire, 243 Neb. 451 (1993) (Section 84-712 applies equally to all persons).

The court notes that the disclosure of public records pursuant to Sections 84-712 et seq. is markedly different from discovery of evidence under the Nebraska criminal procedure statutes, Sections 29-1912 et seq.

(Emphasis in original).

The district court then made the following findings. With respect to Boppre's March 14, 2015, request for documents (see appendix A):

I. Requests numbered 1, 2, 3, 4, 5, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, and 20 are exempt from disclosure as records developed or received as part of an investigation pursuant to Section 84-712.05(5).

II. Requests numbered 6, 8, and 18 represent routine administrative or oversight activities rather than a focused inquiry into specific law violations. If Overman isin possession of any such documents, then copies shall be provided to Boppre free of charge within 10 days. If Overman does not possess those documents that fact shall also be disclosed to Boppre within 10 days of the date of this Order.

With respect to Boppre's April 23, 2015, request for documents (see appendix B):

III. Requests numbered 1, 3, 4, 9, 17, 18, 19, 21, 22 (in part), 27, 28, 29, 30, 34, 36, and 37 are exempt from disclosure as records developed or received as part of an investigation pursuant to Section 84-712.05(5).

IV. Overman appropriately responded to requests numbered 2, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 20, 22, 23, 24, 25, 26, 33, 35, 38, 39, and 40.

V. If Overman is in possession of any documents identified in Requests numbered 31 and 32 he shall provide Boppre with a copy within 10 days of the date of this order. If Overman does not possess those documents that fact shall also be disclosed to Boppre within 10 days of the date of this Order.

The district court noted:

Ruling on the aforementioned matters was made difficult by both parties' apparent confusion between the right to access public records and criminal procedure discovery statutes; Boppre's status as both a citizen of this State and the focus of the underlying criminal investigation; Boppre's attempts to insert interrogatories into the request for documents; and Boppre's confusion that Overman should possess documents and records of governmental offices and agencies other than the Sheriff's Office.

In accordance with its above findings, the district court partially sustained and partially overruled Boppre's amended petition for a writ of mandamus. Boppre now appeals.

III. ...