State ex rel. BH Media Grp., Inc. v. Frakes

• Decision Date: 15 May 2020
• Docket Number: Nos. S-18-604 through S-18-606,S-19-027 through S-19-029.,s. S-18-604 through S-18-606
• Parties: STATE of Nebraska EX REL. BH MEDIA GROUP, INC., doing business as Omaha World-Herald, appellee and cross-appellant, v. Scott FRAKES, in his official capacity as director of the Nebraska Department of Correctional Services, appellant and cross-appellee. State of Nebraska ex rel. Lee Enterprises, Inc., doing business as Lincoln Journal Star, appellee and cross-appellant, v. Scott Frakes, in his official capacity as director of the Nebraska Department of Correctional Services, appellant and cross-appellee. State of Nebraska ex rel. Amy A. Miller and ACLU of Nebraska Foundation, appellees and cross-appellants, v. Scott Frakes, in his official capacity as director of the Nebraska Department of Correctional Services, appellant and cross-appellee.
• Court: Nebraska Supreme Court

305 Neb. 780

943 N.W.2d 231

STATE of Nebraska EX REL. BH MEDIA GROUP, INC., doing business as Omaha World-Herald, appellee and cross-appellant,

v.Scott FRAKES, in his official capacity as director of the Nebraska Department of Correctional Services, appellant and cross-appellee.

State of Nebraska ex rel. Lee Enterprises, Inc., doing business as Lincoln Journal Star, appellee and cross-appellant,

v.Scott Frakes, in his official capacity as director of the Nebraska Department of Correctional Services, appellant and cross-appellee.

State of Nebraska ex rel. Amy A. Miller and ACLU of Nebraska Foundation, appellees and cross-appellants,

v.Scott Frakes, in his official capacity as director of the Nebraska Department of Correctional Services, appellant and cross-appellee.

Nos. S-18-604 through S-18-606

S-19-027 through S-19-029.

Supreme Court of Nebraska.

Filed May 15, 2020

Douglas J. Peterson, Attorney General, and Ryan S. Post, Lincoln, for appellant.

Shawn D. Renner, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., Lincoln, for appellees BH Media Group, Inc., and Lee Enterprises, Inc.

Christopher Eickholt, of Eickholt Law, L.L.C., for appellees Amy A. Miller and ACLU of Nebraska Foundation.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Freudenberg, JJ., and Moore, Judge.

Funke, J. Scott Frakes, director of the Nebraska Department of Correctional Services (DCS), appeals from writs of mandamus ordering the disclosure, pursuant to the Nebraska public records statutes, see Neb. Rev. Stat. §§ 84-712 through 84-712.09 (Reissue 2014, Cum. Supp. 2018 & Supp. 2019), of records related to DCS’ efforts to acquire lethal injection drugs. Frakes contends that the records are not subject to the public records statutes and that the district court erred in determining that he failed to prove that the records should not be disclosed. Because Frakes’ contentions contradict the text of Nebraska’s public records statutes and are adverse to this court’s public records precedent, we find that his appeal is without merit.

Relators have cross-appealed, arguing that the court erred in not ordering the redaction of confidential portions of otherwise public records and compelling the release of the redacted documents. As a matter of first impression, we agree with relators.

We therefore affirm in part, and in part reverse and remand with directions in cases Nos. S-19-027 through S-19-029. We dismiss the appeals in cases Nos. S-18-604 through S-18-606.

BACKGROUND

This matter concerns three cases consolidated for purposes of trial and appeal. The relators are BH Media Group, Inc., doing business as Omaha World-Herald (OWH); Lee Enterprises, Inc., doing business as Lincoln Journal Star (LJS); and Amy A. Miller and ACLU of Nebraska Foundation. In October and November 2017, each relator submitted public records requests pursuant to the public records statutes, seeking information related to DCS’ purchase of pharmaceuticals for use in the lethal injection execution protocol. DCS provided responsive documents to each request, and it informed relators that it had additional responsive documents in its possession that would be withheld from disclosure. DCS stated that the withheld records consist of (1) communications between a DCS execution team member and a lethal injection drug supplier, (2) Drug Enforcement Agency (DEA) forms, (3) inventory logs, (4) chemical analysis reports, (5) photographs of packaging, (6) invoices, and (7) purchase orders. DCS responded that these documents would not be disclosed, because they are confidential and exempt from disclosure under Neb. Rev. Stat. § 83-967(2) (Reissue 2014) and because they are not public records as defined under § 84-712.01(1).

Each relator petitioned the district court for Lancaster County for a writ of mandamus to compel Frakes, in his official capacity as director of DCS, to produce the withheld records. In each case, the court entered a show cause order and Frakes filed an answer and response. Frakes argued that nondisclosure is justified under § 83-967(2), which makes the identity of all members of the execution team confidential and exempt from disclosure under the public records statutes.

The matter proceeded to trial. The court heard testimony from Miller, a citizen of Nebraska and an attorney for the ACLU of Nebraska Foundation; JoAnne Young, a reporter for LJS; and Joe Duggan, a reporter for OWH. A previous public records request by Miller and response by DCS from August 16, 2016, was offered into evidence as exhibit 10. Exhibit 10 contains correspondence between Frakes and a drug supplier concerning DCS’ payment for lethal injection drugs, an offer to sell and purchase order, invoices, DEA forms, and photocopies of packaging showing the expiration dates of lethal injection drugs.

Young testified about her reporting on state government and death penalty issues for the LJS since 2007. She admitted she may attempt to interview DCS’ lethal injection drug supplier if she learned its identity. Duggan testified that if he received information about the supplier, he would attempt to interview the supplier and would ask who else might have information about its transaction with DCS.

The relators called Frakes as a witness. Under DCS’ execution protocol,¹ which was received into evidence, the DCS director, the Nebraska State Penitentiary warden, and the Nebraska State Penitentiary public information officer are designated as members of the execution team. In his testimony, Frakes admitted without objection that he is a member of the execution team. In addition, he confirmed the publicly known identities of the warden and public information officer. Frakes did not contend that the lethal injection drug supplier is a member of the execution team.

Frakes testified that he would not publicly identify other members of the execution team, because there is the potential for threats or harassment. He testified that the purchase orders and chemical analysis reports were withheld, because they identify a member of the execution team "on their face." He testified that the communication with a supplier, DEA forms, photographs, and invoices were withheld, because they identify the supplier and, if contacted, the supplier could share the identity of a team member. He stated that "since the supplier has direct knowledge of team members, or at least one team member ... I can ... draw the connection that [it] would be able to identify a member of the team." Frakes testified that inventory logs were withheld, because they "contain information that ultimately could lead to identifying the supplier." He admitted that he had the ability to redact identifying information contained in the records and that he could ask the supplier not to identify any team members. He did not know whether DCS’ contract with the supplier contains a confidentiality or nondisclosure provision. He asserted that the photographs of packaging are attorney work product.

In closing arguments, the relators argued that the purchase orders and chemical analysis reports should undergo a redaction process and be disclosed. Regarding the remaining records, they argued that there is no provision under Nebraska law which makes the identity of a lethal injection drug supplier confidential. Frakes argued that because the withheld records name the supplier and the supplier knows the identity of a team member, the withheld records are reasonably calculated to lead to the identity of a team member.

On June 18, 2018, the district court entered orders in each case partially granting and partially denying the requests for writs of mandamus. The court found that pursuant to § 84-712.01(3), it was required to liberally construe public records laws in favor of disclosure. The court found the relators met their burden to show a prima facie claim that they were denied access to public records as guaranteed by public records laws. The court interpreted § 83-967(2) as an exemption from disclosure under the public records statutes and found that the burden therefore shifted to Frakes to prove by clear and convincing evidence that the documents sought were exempt from disclosure. The court found that the purchase orders and chemical analysis reports identified execution team members on their face and therefore were exempt from disclosure under § 83-967(2). As to the remaining documents, the court found that Frakes failed to meet his burden to show that an exemption applies. The court stated that "[t]he evidence is speculative at best" that disclosure of these documents would lead to the identification of an execution team member. The court found that Frakes had not proved that the photographs of packaging are attorney work product. The court ordered Frakes to disclose within 7 days the communications with the supplier, DEA records, invoices, inventory logs, and photographs of packaging.

On June 19, 2018, Frakes filed a notice of appeal. On June 27, relators filed motions to alter or amend the judgments to include an award of attorney fees and costs. The court determined that, despite Frakes’ notice of appeal, it had jurisdiction over the motions to alter or amend. The court found the motions to alter or amend were proper, because relators had requested attorney fees in their petitions. Following a hearing, the court granted relators’ motions for an award of attorney fees and costs. Frakes appealed, and relators cross-appealed. We moved the appeals to our docket and consolidated them.

ASSIGNMENTS OF ERROR

Frakes assigns, restated, that the district court erred in (1) finding relators had established standing and jurisdiction, (2) finding relators had met their burden to show the documents sought are public records as defined by § 84-712.01, (3) finding § 83-967(2) is an exemption from disclosure that the public body must prove applies by clear and convincing evidence, (4) finding Frakes failed to establish by clear and convincing evidence that the withheld documents are...