Jacob v. Nebraska Bd. of Parole , 313 Neb. 109 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/23/2022 08:05 AM CST
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
JACOB V. NEBRASKA BD. OF PAROLE
Cite as 313 Neb. 109David H. Jacob, appellant, v. Nebraska
Board of Parole and Mark T. Langan,
parole board member, appellees.
___ N.W.2d ___
Filed December 23, 2022. No. S-21-844.
1. Summary Judgment: Appeal and Error. An appellate court reviews a
district court’s grant of summary judgment de novo, viewing the record
in the light most favorable to the nonmoving party and drawing all rea-
sonable inferences in that party’s favor.
2. ____: ____. An appellate court affirms a lower court’s grant of summary
judgment if the pleadings and admitted evidence show that there is no
genuine issue as to any material facts or as to the ultimate inferences
that may be drawn from the facts and that the moving party is entitled to
judgment as a matter of law.
3. Summary Judgment. In the summary judgment context, a fact is mate-
rial only if it would affect the outcome of the case.
4. Statutes: Appeal and Error. Statutory interpretation is a question of
law that an appellate court resolves independently of the trial court.
5. Rules of the Supreme Court: Pleadings: Appeal and Error. An appel-
late court reviews a district court’s denial of a motion to amend under
Neb. Ct. R. Pldg. § 6-1115(a) for an abuse of discretion.
6. Summary Judgment: Proof. The party moving for summary judgment
makes a prima facie case by producing enough evidence to show that the
movant is entitled to judgment if the evidence were uncontroverted at
trial. At that point, the burden of producing evidence shifts to the party
opposing the motion.
7. Summary Judgment. Key factual propositions may be present for sum-
mary judgment purposes by reasonable inference, but conclusions based
upon guess, speculation, conjecture, or a choice of possibilities do not
create material issues of fact for purposes of summary judgment.
8. Legislature: Statutes: Intent: Records. In enacting the public records
statutes, the Legislature has determined that the welfare of the people is
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
JACOB V. NEBRASKA BD. OF PAROLE
Cite as 313 Neb. 109best served through liberal public disclosure of the records of the three
branches of government.
9. Records: Words and Phrases. Disclosure, within the meaning of the
public records statutes, refers to the exposure of documents to pub-
lic view.
10. Statutes: Records. The public records statutes apply equally to all per-
sons without regard to the purpose for which the information is sought
and does not depend on who makes the request.
11. ____: ____. If any other statute expressly provides that particular infor-
mation or records shall not be made public, it is not a public record.
12. Mandamus: Proof. A party seeking a writ of mandamus under Neb.
Rev. Stat. § 84-712.03 (Cum. Supp. 2022) has the initial burden at
trial to satisfy three elements: (1) The requesting party is a citizen of
the state or other person interested in the examination of the public
records, (2) the document sought is a public record as defined by Neb.
Rev. Stat. § 84-712.01 (Reissue 2014), and (3) the requesting party has
been denied access to the public record as guaranteed by Neb. Rev. Stat.
§ 84-712 (Reissue 2014).
13. Records: Proof. If the petitioner succeeds in proving a prima facie case
for the writ, the burden then shifts to the public body opposing disclo-
sure to show by clear and conclusive evidence that either Neb. Rev. Stat.
§ 84-712.05 (Cum. Supp. 2022) or Neb. Rev. Stat. § 84-712.08 (Reissue
2014) exempts the public records from disclosure.
14. Probation and Parole. Under Neb. Rev. Stat. § 83-1,111 (Cum. Supp.
2022), there are two fundamental components of a first-step parole
review to determine whether the offender is reasonably likely to be
granted parole: (1) the interview of the inmate and (2) a review of the
inmate’s record.
15. Administrative Law: Records: Words and Phrases. A public record
is an investigatory record if (1) the activity giving rise to the document
sought is related to the duty of investigation or examination with which
the public body is charged and (2) the relationship between the inves-
tigation or examination and that public body’s duty to investigate or
examine supports a colorable claim of rationality.
16. Statutes: Records: Words and Phrases. A statute qualifies as an “other
statute” under Neb. Rev. Stat. § 84-712(1) (Reissue 2014) when the plain
language of a statute makes it clear that a record, or portions thereof, is
exempt from disclosure in response to a public records request.
17. Statutes: Records: Appeal and Error. An appellate court must nar-
rowy construe statutory exemptions shielding public records from dis-
closure, which means that if there is a plausible construction of a statute
favoring disclosure of public records, that construction will prevail.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
JACOB V. NEBRASKA BD. OF PAROLE
Cite as 313 Neb. 10918. Statutes. A statute is not to be read as if open to construction as a matter
of course.
19. ____. Rules of interpretation are resorted to for the purpose of resolving
an ambiguity, not of creating it.
20. Probation and Parole: Legislature: Records. By declaring in Neb.
Rev. Stat. § 83-1,125.01(2) (Cum. Supp. 2022) that the contents of
the individual file shall be confidential, the Legislature has declared
they shall not be made public within the meaning of Neb. Rev. Stat.
§ 84-712.01(1) (Reissue 2014).
21. Records. The inquiry of whether a requested record is a public record
focuses on the information or record sought.
22. Courts: Justiciable Issues. Courts do not address or dispose of abstract
questions or issues that might arise in a hypothetical or fictitious
setting.
23. Declaratory Judgments. The purpose of the Uniform Declaratory
Judgments Act is to provide a procedure for the speedy determination
of issues which would otherwise be delayed to the possible injury of
the parties.
24. Pleadings. The mandated liberality in permitting amendments is gener-
ally when leave to amend is proposed at an opportune time and will be
in the furtherance of justice.
25. Pleadings: Appeal and Error. Permission to amend pleadings is
addressed to the sound discretion of the trial court; absent an abuse of
that discretion, the trial court’s decision will be affirmed.
26. Judges: Words and Phrases. A judicial abuse of discretion exists if the
reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in matters
submitted for disposition.
27. Effectiveness of Counsel. A pro se party is held to the same standards
as one who is represented by counsel.
Appeal from the District Court for Lancaster County: Darla
S. Ideus, Judge. Affirmed.
David H. Jacob, pro se.
Douglas J. Peterson, Attorney General, and James A.
Campbell, Solicitor General, for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
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313 Nebraska Reports
JACOB V. NEBRASKA BD. OF PAROLE
Cite as 313 Neb. 109Freudenberg, J.
I. INTRODUCTION
A committed offender sought a writ of mandamus under
the Nebraska public records statutes, specifically Neb. Rev.
Stat. § 84-712.03 (Cum. Supp. 2022), compelling the Board
of Parole and one of its officers to disclose the record of an
informal, first-step parole review proceeding during which he
was interviewed by two board members who ultimately found
he was not reasonably likely to be granted parole. The district
court granted summary judgment in favor of the respondents,
reasoning the record of the review proceedings was part of the
individual file deemed by statute to be confidential and, also,
that it was part of the examination or investigation by a public
body charged with duties of investigation or examination of
persons, which may be withheld from disclosure. The offender
appeals. We affirm.
II. BACKGROUND
David H. Jacob is a committed offender serving an indeter-
minate sentence with the Department of Correctional Services.
He became eligible for parole in 2015. Since 2015, the Board
of Parole has conducted annual reviews pursuant to Neb.
Rev. Stat. § 83-1,111 (Reissue 2014 & Cum. Supp. 2022).
The reviewers have determined after each annual review that
Jacob should be denied parole and deferred his case for later
reconsideration. At issue in the current action is the record
pertaining to a review by the Board of Parole that occurred on
September 5, 2019 (Review).
1. Notice
Following the Review, the Board of Parole sent Jacob an
Offender Board Review Notice (Notice). The Notice set forth
that the Board of Parole, as a result of the Review, deferred
Jacob’s case for another review the following year.
The Notice described that in compliance with § 83-1,111
(Cum. Supp. 2022), as well as Neb. Rev. Stat. §§ 83-192 and
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JACOB V. NEBRASKA BD. OF PAROLE
Cite as 313 Neb. 10983-1,114 (Cum. Supp. 2022), the Board of Parole had reviewed
Jacob’s case in his presence. It set forth two reasons for its
decision: (1) “The nature/circumstances of your offense(s)
indicates that an early release would depreciate from the seri-
ousness of your crime and promote disrespect for the law”
and (2) “[d]ue to your prior criminal record.” The Notice did
not elaborate upon either of these reasons. The Notice recom-
mended that Jacob follow the recommendations of his person-
alized plan.
2. Public Records Written
Request and Response
In response, Jacob sent a formal request to the Board of
Parole pursuant to Neb. Rev. Stat. § 84-712 (Reissue 2014) of
the public records statutes, asking for a copy of the complete
record of the Review. Jacob pointed out that such a record was
required by § 83-1,111(1), wherein it states, “Any hearing and
review shall be conducted in an informal manner, but a com-
plete record of the proceedings shall be made and preserved.”
Further, Jacob recalled there was a “‘Court reporter’” at the
Review “transcribing what was said.” Thus, he was “hereby
requesting a copy of that transcribed ‘record.’”
The Board of Parole responded with a letter signed by board
member Mark T. Langan, stating that no verbatim transcrip-
tion is made for informal board reviews. In any case, accord-
ing to the Board of Parole, the records developed and main-
tained in connection with board reviews are generally exempt
from the public records statute by virtue of Neb. Rev. Stat.
§ 84-712.05(5) (Cum. Supp. 2022) and they are specifically
exempt pursuant to Neb. Rev. Stat. § 83-1,125.01(2) (Cum.
Supp. 2022).
3. Petition for Public Records
Writ of Mandamus
On January 16, 2020, Jacob filed a verified petition for a
writ of mandamus pursuant to § 84-712.03(a), requiring the
Board of Parole and board member Langan, together referred
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JACOB V. NEBRASKA BD. OF PAROLE
Cite as 313 Neb. 109to herein as the “Board,” to produce a copy of the records of
the Review. Jacob also requested that the Board provide him
with a copy of his “‘prior criminal record’” for the court to
review in camera. He specified that he was not seeking any
parole proceedings orders and notices, which are exempted
from public disclosure pursuant to § 83-1,125.01(1)(m).
Jacob described the Review as being in front of two members
of the Board of Parole. Jacob alleged that, at the Review, there
was a microphone positioned in front of him and there was
a court reporter present who kept a record of what was said.
Jacob implied he was making the request because one of the
reasons in the Notice for denying parole was his prior criminal
record—and he did not have a criminal record other than the
charges for which he is presently incarcerated. Furthermore,
Jacob alleged there was no discussion at the Review of any
prior criminal record.
4. Board’s Answer
The Board resisted the writ. In its answer, the Board stated
it “[l]ack[ed] knowledge of whether Jacob has a criminal
record in addition to his three convictions for second degree
murder.” It admitted there was no discussion of any prior
criminal record in the Review, explaining that the only crimes
discussed at the Review were the three convictions for which
he was incarcerated.
The Board denied that a court reporter was present at the
Review or that any verbatim record of the Review was made.
Although the Board admitted § 83-1,111(1) requires it to main-
tain a complete record of the review, it noted the statute does
not require the record include an audio recording or verbatim
transcript. Furthermore, insofar as the public records statutes
are concerned, the Board asserted its obligations are limited
to disclosure of existing public records and do not envision
the creation of records that do not exist. It asserted the court
should dismiss the petition on the grounds that there is no
document to provide to Jacob.
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JACOB V. NEBRASKA BD. OF PAROLE
Cite as 313 Neb. 109The Board alternatively asserted that to the extent any
documents providing a summary or recording of the review
exist, they were not required to produce it. In this regard,
the Board asserted, first, that such record was part of Jacob’s
“individual file,” confidential under § 83-1,125.01(2), and
therefore not a public record as defined by Neb. Rev. Stat.
§ 84-712.01 (Reissue 2014). The Board asserted the list in
§ 83-1,125.01(1) of what shall be included in the “individual
file” was not exclusive of what was properly contained therein.
Second, the Board asserted that such record was developed
as part of its “‘duties of investigation or examination’” and
“‘constitute a part of the examination [or] investigation.’”
Therefore, it may be withheld from the disclosure pursuant to
§ 84-712.05(5).
The Board did not specifically assert in its answer that it
had already provided Jacob with its complete record of the
Review.
5. Case Progression and Motion
to Amend Petition
At a hearing on September 18, 2020, the court set a deadline
for completion of discovery within 90 days. Trial was set for
February 24, 2021.
On December 30, 2020, almost 1 year after filing his peti-
tion, Jacob moved to amend his petition to add a prayer for
relief for a declaratory judgment of his rights under the pro-
vision in § 83-1,111(1), describing the obligation to make
a complete record of the review proceedings. His proposed
amended pleading was identical to the original petition except
for the addition of a prayer for declaratory judgment “for both
a construction of the validity of Neb.Rev.Stat. §83-1,111(1)
and a declaration of the Relator’s rights and status under the
portion of that statute” providing that a complete record of
the proceedings shall be made and preserved.
The Board objected to the amendment on the basis of undue
delay. At the hearing on the motion to amend, Jacob explained
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JACOB V. NEBRASKA BD. OF PAROLE
Cite as 313 Neb. 109he wanted to “waive the trial altogether and move to just a
declaratory judgment.” Jacob said he had come to understand
during discovery that the Board of Parole does not make what
Jacob considered to be a “complete record” of review proceed-
ings. “So, there’s really no need for a trial to say we have to
compel them to make a complete record. They don’t have one.”
Instead, he wanted the court to “make the statement or make a
definition, what does it mean to have a complete record.”
The Board argued there appeared to be no dispute of fact
pertaining to the underlying petition. Although Jacob could
bring a separate action for declaratory judgment if he wished
to, they were all too “far down the road into the case” for an
amendment not to prejudice them. According to the Board,
Jacob should have known at least a year before of any facts
giving rise to the declaratory judgment action.
The court denied the motion to amend on the grounds that
at such a late stage in the litigation, it was not appropriate to
add a declaratory judgment claim to the petition for a writ of
mandamus. The court stated it agreed with the parties that a
writ of mandamus was “not a good option because there’s no
record. . . . I can’t order somebody to produce something that
doesn’t exist . . . .” It also agreed that “whether the parole
board is — is legally required to do something that is differ-
ent . . . would be a better subject of a declaratory judgment.”
Nevertheless, it concluded, “[A]t this stage, I think that . . .
needs to be a separate action.”
6. Cross-Motions for Summary
Judgment and Arguments
Although Jacob initially indicated at the hearing on his
motion to amend that he might dismiss the petition for a writ
of mandamus, he instead filed a motion for summary judgment
in his mandamus action. The Board submitted a cross-motion
for summary judgment.
Jacob asserted in his motion that a complete record of the
Review, containing pertinent information, was made and is
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Cite as 313 Neb. 109maintained in a State database. He asserted he was entitled
to a copy of whatever information was contained in the
State database pertaining to the Review, except for its orders
and notices.
Jacob argued that such information was compiled as part of
the Board of Parole’s administrative functions and was not an
investigative record as described by § 84-712.05(5). He also
argued that because § 83-1,125.01(2) does not require that a
record of review proceedings be kept in the inmate’s individual
file, it did not fall under the confidentiality requirements of
§ 83-1,125.01.
Jacob claimed that having access to the review records was
necessary to vindicate his due process rights and liberty inter-
est pertaining to the parole review procedures. At the hearing
on the motions for summary judgment, Jacob pointed out it
was undisputed that something the Board characterized as a
“complete record” was made. He concluded, “What is exactly
in there, I don’t know, but . . . I just want a copy of it.”
The State, in its motion for summary judgment, reiterated
its argument that under § 83-1,125.01(3), the contents of an
individual file are confidential and cannot be accessed by any
person under the jurisdiction of the Board of Parole. Further,
it claimed the record was developed as part of its investigation
or examination of Jacob’s suitability for parole and therefore
exempt from public disclosure under § 84-712.05(5).
At the hearing, the Board pointed out some confusion
about what Jacob was requesting and asserted that to the
extent any requested records existed, the Board had already
disclosed them to Jacob. The Board elaborated it had origi-
nally understood Jacob wanted a verbatim transcription of the
Review which, undisputedly, did not exist. Although it later
became clear Jacob wanted whatever record was produced as
a result of the Review, the Board argued it was also undis-
puted that such complete record was contained in the Notice,
which had been sent to Jacob. The Board argued that to the
extent Jacob was asking for anything more than that, either
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JACOB V. NEBRASKA BD. OF PAROLE
Cite as 313 Neb. 109it was not a public record, because § 83-1,125.01(3) deems
it confidential, or it is exempt under § 84-712.05(5). In sum,
the Board argued there was no genuine issue that Jacob was
unable to make a prima facie case for a public records writ
of mandamus.
7. Exhibits
Jacob and the Board jointly submitted the same exhibits in
support of their respective motions for summary judgment. All
exhibits were received.
A staff assistant for the Board of Parole, who was charged
with being present for and making a record of parole reviews,
averred she was the only employee of the Board of Parole
present for the Review. She averred further, “In compliance
with . . . § 83-1,111(1), a complete record of the proceeding
was made and preserved by entering pertinent information into
a State maintained database,” which is the Parole Information
Management System (PIMS). In accordance with its normal
procedures for informal reviews, no audio, video, or steno-
graphic recording was made of the review.
The staff assistant averred that “[f]ollowing any informal
parole review, an Offender Board Review Notice is gener-
ated from PIMS and sent to the [inmate],” and that notice
“contains all of the pertinent information entered into PIMS.”
Accordingly, the Notice to Jacob “contains all of the pertinent
information entered in PIMS, the State maintained database,
related to the Parole Board’s in-person informal parole review
of [Jacob] on September 5, 2019.”
Another employee of the Board of Parole, who is the “point-
person” for PIMS, averred PIMS is the “central repository
for official information related to individuals who may be
considered for release on parole” and “contains the individual
file maintained for each candidate for parole, including the
Offender Board Review Screen.” “The Offender Board Review
Screen is used to input pertinent information when the Board
conducts an in-person informal review of an incarcerated
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JACOB V. NEBRASKA BD. OF PAROLE
Cite as 313 Neb. 109individual.” The notice sent to inmates of the review panel’s
decision “contains all of the pertinent information entered
in PIMS.”
8. Summary Judgment
in Favor of Board
The district court granted the Board’s motion for summary
judgment and denied Jacob’s motion for summary judgment.
The court summarized that both parties agreed a record of
some type was created and the question was whether Jacob
was entitled to it. The court concluded Jacob was not entitled
under the public records statutes to the record.
(a) Not Public Record
The court reasoned that whatever the record created of
the first-step review was, it would be part of an inmate’s
individual file and thus confidential through the mandate of
§ 83-1,125.01(2). Therefore, it was not a public record. The
court noted the Board of Parole must consider a “litany of
factors” before deciding if the offender is reasonably likely
to be paroled. It observed that § 83-1,125.01(1) lists 18 types
of records that are to be part of an “individual file.” It found
most pertinent subsection (1)(p), under which the individual
file shall include, when available and appropriate, “[o]ther
pertinent data concerning [the inmate’s] background, conduct,
associations, and family relationships.” 1
A “first-step review,” the district court explained, necessar-
ily involves the inmate’s background, conduct, associations,
and family. The first-step review also, said the district court,
involves consideration of the factors in § 83-1,114(2), which
provides, “In making its determination regarding a commit-
ted offender’s release on parole, the board . . . shall take into
account” each of the 15 factors set forth therein. These include,
among other things, the offender’s personality, ability and
1
§ 83-1,125.01(1)(p).
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Cite as 313 Neb. 109readiness to assume obligations and undertake responsibilities,
intelligence and training, the adequacy of the parole plan, and
a catch-all for “[a]ny other factors the board determines to
be relevant.”
(b) Investigatory Records Exception
In denying Jacob’s petition for a writ of mandamus, the court
also reasoned that the record at issue in Jacob’s petition fell
within the investigatory records exception of § 84-712.05(5).
The court noted the Board of Parole is charged with examin-
ing prisoners’ fitness to be released and, as part of this review,
the parole board members had a statutory duty to examine
Jacob’s file and interview him, which they did. Thus, the activ-
ity from which the record arose was related to the agency’s
duty of investigation or examination and there was a rational
relationship between the investigation or examination actu-
ally conducted and its legal duty to investigate or examine.
Jacob appeals.
III. ASSIGNMENTS OF ERROR
Jacob assigns that the district court erred by (1) denying his
request to amend his petition to allege an action for declara-
tory judgment and (2) granting the Board summary judgment
on the grounds that the record of the Review was an investi-
gatory record under § 84-712.05(5) and part of his individual
file deemed confidential under § 83-1,125.01.
IV. STANDARD OF REVIEW
[1-3] An appellate court reviews a district court’s grant of
summary judgment de novo, viewing the record in the light
most favorable to the nonmoving party and drawing all rea-
sonable inferences in that party’s favor. 2 An appellate court
affirms a lower court’s grant of summary judgment if the
pleadings and admitted evidence show that there is no genuine
2
Kaiser v. Allstate Indemnity Co., 307 Neb. 562, 949 N.W.2d 787 (2020).
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Cite as 313 Neb. 109issue as to any material facts or as to the ultimate inferences
that may be drawn from the facts and that the moving party
is entitled to judgment as a matter of law. 3 In the summary
judgment context, a fact is material only if it would affect the
outcome of the case. 4
[4] Statutory interpretation is a question of law that an
appellate court resolves independently of the trial court. 5
[5] An appellate court reviews a district court’s denial of a
motion to amend under Neb. Ct. R. Pldg. § 6-1115(a) for an
abuse of discretion. 6
V. ANALYSIS
Jacob argues on appeal that the court should have granted
his petition for a writ of mandamus that would compel the
Board to release to him whatever record was contained on
PIMS documenting the Review. He also argues the district
court erred by denying his motion to amend the petition to add
a request for a declaratory judgment on the meaning of “com-
plete record” under § 83-1,111(1), as applied to parole review
proceedings, and on whether the Board complied with its duty
to make a “complete record” of the Review.
1. Petition for Public Records
Writ of Mandamus
[6,7] We first address whether the court erred in granting
summary judgment in favor of the Board with respect to the
petition for a public records writ of mandamus. The party
moving for summary judgment makes a prima facie case
by producing enough evidence to show that the movant is
entitled to judgment if the evidence were uncontroverted at
3
Elbert v. Young, 312 Neb. 58, 977 N.W.2d 892 (2022).
4
Peterson v. Homesite Indemnity Co., 287 Neb. 48, 840 N.W.2d 885 (2013).
5
State ex rel. BH Media Group v. Frakes, 305 Neb. 780, 943 N.W.2d 231(2020).
6
Williams v. State, 310 Neb. 588, 967 N.W.2d 677 (2021).
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Cite as 313 Neb. 109trial. 7 At that point, the burden of producing evidence shifts
to the party opposing the motion. 8 In reviewing the grant of
a motion for summary judgment, an appellate court views
the evidence in the light most favorable to the party against
whom the judgment was granted, giving that party the benefit
of all reasonable inferences deducible from the evidence. 9 Key
factual propositions may be present for summary judgment
purposes by reasonable inference, 10 but conclusions based
upon guess, speculation, conjecture, or a choice of possibili-
ties do not create material issues of fact for purposes of sum-
mary judgment. 11
[8-10] In enacting the public records statutes, the Legislature
has determined that the welfare of the people is best served
through liberal public disclosure of the records of the three
branches of government. 12 Section 84-712(1) of the public
records statutes provides, “Except as otherwise expressly
provided by statute, all citizens of this state and all other
persons interested in the examination of the public records
as defined in section 84-712.01 are hereby fully empowered
and authorized to (a) examine such records, and . . . obtain
copies of public records . . . .” Disclosure, within the mean-
ing of the public records statutes, refers to the exposure of
documents to public view. 13 The public records statutes apply
equally to all persons without regard to the purpose for which
the information is sought and does not depend on who makes
the request. 14
7
See Ag Valley Co-op v. Servinsky Engr., 311 Neb. 665, 974 N.W.2d 324(2022).
8
See id.9
Kozal v. Snyder, 312 Neb. 208, 978 N.W.2d 174 (2022).
10
Hughes v. School Dist. of Aurora, 290 Neb. 47, 858 N.W.2d 590 (2015).
11
Darrah v. Bryan Memorial Hosp., 253 Neb. 710, 571 N.W.2d 783 (1998).
12
State ex rel. BH Media Group v. Frakes, supra note 5.
13
Id.14
See id.- 123 -
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313 Nebraska Reports
JACOB V. NEBRASKA BD. OF PAROLE
Cite as 313 Neb. 109[11] Pursuant to § 84-712.03, “Any person denied any rights
granted by sections 84-712 to 84-712.03 may elect to . . . (a)
[f]ile for speedy relief by a writ of mandamus in the district
court . . . .” Section 84-712.07 provides that such a person who
has been denied access to a public record may file for a writ of
mandamus under § 84-712.03 whether or not any other remedy
is also available. 15
A “public record” is defined as follows:
Except when any other statute expressly provides that
particular information or records shall not be made pub-
lic, public records shall include all records and docu-
ments, regardless of physical form, of or belonging to this
state, any county, city, village, political subdivision, or
tax-supported district in this state, or any agency, branch,
department, board, bureau, commission, council, subunit,
or committee of any of the foregoing. Data which is a
public record in its original form shall remain a public
record when maintained in computer files. 16
Thus, if “any other statute expressly provides that particular
information or records shall not be made public,” 17 it is not a
public record. 18
Section 84-712.05 of the public records statutes provides a
list of records that, while falling generally under the defini-
tion of public records, “may be withheld from the public by
the lawful custodian of the records” “unless publicly disclosed
in an open court, open administrative proceeding, or open
meeting or disclosed by a public entity pursuant to its duties.”
This list includes, under § 84-712.05(5), records developed or
received by public bodies charged with duties of investigation
or examination and which constitute part of such examination
or investigation:
15
See State ex rel. Unger v. State, 293 Neb. 549, 878 N.W.2d 540 (2016).
16
§ 84-712.01.
17
Id. See, also, § 84-712(1).
18
See State ex rel. Unger v. State, supra note 15.
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agencies and other public bodies charged with duties
of investigation or examination of persons, institutions,
or businesses, when the records constitute a part of the
examination, investigation, intelligence information, citi-
zen complaints or inquiries, informant identification, or
strategic or tactical information used in law enforcement
training . . . .
[12,13] Pursuant to these public records statutes, a party
seeking a writ of mandamus under § 84-712.03 has the initial
burden at trial to satisfy three elements: (1) The requesting
party is a citizen of the state or other person interested in the
examination of the public records, (2) the document sought
is a public record as defined by § 84-712.01, and (3) the
requesting party has been denied access to the public record as
guaranteed by § 84-712. 19 These three elements prove a prima
facie case for a writ of mandamus for the release of public
records. If the petitioner succeeds in proving a prima facie
case for the writ, the burden then shifts to the public body
opposing disclosure to show by clear and conclusive evidence
that either § 84-712.05 or § 84-712.08 exempts the public
records from disclosure. 20
[14] It is undisputed that the Review at issue in Jacob’s
petition was a first step in the parole review process. 21 The
Review was not a public hearing, which is the second step of
the process, 22 wherein the offender may present evidence, call
witnesses, and be represented by counsel. 23 Under § 83-1,111,
there are two fundamental components of a first-step parole
review to determine whether the offender is reasonably likely
19
See State ex rel. BH Media Group v. Frakes, supra note 5.
20
See id.21
See Ditter v. Nebraska Bd. of Parole, 11 Neb. App. 473, 655 N.W.2d 43(2002).
22
See id.23
§ 83-1,111(1).
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Cite as 313 Neb. 109to be granted parole: (1) the interview of the inmate and (2)
a review of the inmate’s record. Section 83-1,111 describes
that, in the first-step review, “[a] committed offender serving
an indeterminate sentence under which he or she may become
eligible for parole shall be interviewed and have his or her
record reviewed by two or more members of the Board of
Parole . . . .” Section 83-1,125.01 provides that “the Board
of Parole and the Division of Parole Supervision” may main-
tain an “individual file” for each person who is under the
jurisdiction of the Board of Parole. Section 83-1,125.01(2)
requires that “[a]ny decision concerning release on or revoca-
tion of parole or imposition of sanctions shall be made only
after the individual file has been reviewed.”
[15] The interview described by § 83-1,111 as part of a
first-stage parole review proceeding falls under the plain lan-
guage of § 84-712.05(5), exempting it from disclosure under
the public records statutes. A public record is an investiga-
tory record if (1) the activity giving rise to the document
sought is related to the duty of investigation or examination
with which the public body is charged and (2) the relation-
ship between the investigation or examination and that public
body’s duty to investigate or examine supports a colorable
claim of rationality. 24 The two-part test provides a deferential
burden-of-proof rule for a public body performing an inves-
tigation or examination with which it is charged but does not
apply to protect material compiled ancillary to an agency’s
routine administrative functions or oversight activities. 25 The
informal interview during the first-stage parole review is an
“examination of persons,” and any record of that examination
is “a part of the examination.” 26 With the mandatory lan-
guage of § 83-1,111 that the inmate “shall be interviewed,”
the reviewers are “charged with duties of . . . examination
24
Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009).
25
Id.26
§ 84-712.05(5).
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Cite as 313 Neb. 109of persons.” 27 Any notes or other record of the inmate’s
interview during a first-step parole review proceeding have a
direct and rational relationship between the Board of Parole’s
activity giving rise to the record and the Board of Parole’s
statutory duty to interview the inmate.
Although it is the Board’s burden to prove the exemp-
tion under § 84-712.05 and not Jacob’s burden to prove such
exemption as part of his prima facie case, the Board has dem-
onstrated at the summary judgment hearing there is no genuine
issue of material fact pertaining to this question. An interview
was conducted during the Review. As a matter of law, pursuant
to § 84-712.05, any record of the interview, unless disclosed in
open court, may be withheld from the public by the lawful cus-
todian of records.
As for the individual file containing Jacob’s record reviewed
during the informal first-step parole review, it is not, in the first
instance, a public record. This is because § 83-1,125.01(2) is
an “other statute” under § 84-712(1) that expressly provides
individual files shall not be made public.
[16-19] A statute qualifies as an “other statute” under
§ 84-712(1) when the plain language of a statute makes
it clear that a record, or portions thereof, is exempt from
disclosure in response to a public records request. 28 An
appellate court must narrowly construe statutory exemptions
shielding public records from disclosure, 29 which means
that if there is a plausible construction of a statute favoring
disclosure of public records, that construction will prevail. 30
That said, a statute is not to be read as if open to construc-
tion as a matter of course. 31 Rules of interpretation are
27
Id.
28
State ex rel. BH Media Group v. Frakes, supra note 5.
29
Id.30
See id.31
State v. Frederick, 291 Neb. 243, 864 N.W.2d 681 (2015).
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Cite as 313 Neb. 109resorted to for the purpose of resolving an ambiguity, not of
creating it. 32
Section 83-1,125.01(2) plainly provides that “[t]he contents
of the individual file shall be confidential unless disclosed in
connection with a public hearing and shall not be subject to
public inspection except by court order for good cause shown.”
Additionally, § 83-1,125.01(2) states, “The contents of the file
shall not be accessible to any person under the jurisdiction of
the Board of Parole,” with an exception for access by a person
under the jurisdiction of the Board of Parole to the person’s
own medical records, “notwithstanding the fact that such medi-
cal records may be a part of his or her parole file.” No other
statutory exception for one’s own records contained in the indi-
vidual file are set forth by the statute.
In any case, the fact that § 83-1,125.01(2) provides for
limited exceptions to this confidentiality does not render the
individual file a public record for purposes of a public records
writ of mandamus. Substantively, § 83-1,125.01(2) is similar
to the statute that, in State ex rel. Unger v. State, 33 we held to
“definitionally” signify the subject information was not, “as
a matter of first principles,” a public record subjecting it to a
public records writ of mandamus. 34 The statute at issue in State
ex rel. Unger, Neb. Rev. Stat. § 29-2261(6) (Cum. Supp. 2014),
set forth the general rule that information in a presentence
report is privileged and cannot be disclosed to anyone outside
of the person listed in the statute and “‘others entitled by law
to receive’” such information. 35 We explained that others enti-
tled by law to receive such information did not include anyone
entitled to make a public records request, because “[i]f presen-
tence reports were public records, the privilege in § 29-2261(6)
32
Adkisson v. City of Columbus, 214 Neb. 129, 333 N.W.2d 661 (1983).
33
State ex rel. Unger v. State, supra note 15.
34
Id. at 557, 878 N.W.2d at 547.
35
See, id. at 556, 878 N.W.2d at 546, quoting § 29-2261(6).
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Cite as 313 Neb. 109would be a mirage.” 36 We held that the relator had failed to
establish a prima facie claim because, through § 29-2261(6),
the Legislature expressly made a particular type of record, a
presentence report, privileged. 37
[20] Likewise, through § 83-1,125.01(2), the Legislature
expressly made a particular type of record, the individual
file, confidential. If it is confidential, it is not public. Nothing
in the relevant statutes suggests that because the individual
file is reviewed at an informal, private first-step review pro-
ceeding, its contents become public records. To the contrary,
§ 83-1,125.01 expressly provides both that the individual
file shall be reviewed before determining parole and that the
individual file shall remain confidential unless disclosed in
connection with a public hearing. Reading § 83-1,125.01(2)
as a whole, we determine its meaning is plain. By declaring in
§ 83-1,125.01(2) that the contents of the individual file shall
be “confidential,” the Legislature has declared they “shall
not be made public” within the meaning of § 84-712.01(1).
Relatedly, § 83-1,125.01(2) is an “other statute” under
§ 84-712(1).
The real debate between Jacob and the Board is whether all
of the information Jacob sought disclosure of through a public
records writ of mandamus was properly contained within the
confidential individual file. Section 83-1,125.01(1) sets forth
a nonexclusive catalog of what information on the inmate the
individual file “shall include, when available and appropriate,”
as follows:
(a) Admission summary;
(b) Presentence investigation report;
(c) Classification reports and recommendations;
(d) Official records of conviction and commitment
along with any earlier criminal records;
(e) Progress reports and admission-orientation reports;
36
Id. at 556, 878 N.W.2d at 547.
37
See State ex rel. BH Media Group v. Frakes, supra note 5.
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Cite as 313 Neb. 109(f) Reports of any disciplinary infractions and their
disposition;
(g) Risk and needs assessments;
(h) Parole plan and parole placement and investigation
worksheets;
(i) Decision guideline scores;
(j) Parole case plan;
(k) Parole progress reports and contact notes;
(l) Arrest and violation reports, including disposition;
(m) Parole proceedings orders and notices;
(n) Other documents related to parole supervision;
(o) Correspondence; and
(p) Other pertinent data concerning his or her back-
ground, conduct, associations, and family relationships.
Jacob points out that the record of parole review proceed-
ings, per se, is not listed in the catalog of items set forth in
§ 83-1,125.01(1) of what shall be contained in the individual
file. He argues the Board of Parole cannot shelter from dis-
closure information that would otherwise be public records
simply by placing it in the individual file. The Board responds
that the list in § 83-1,125.01(1) is not exclusive and that the
Board of Parole has discretion in deciding what to include in
the inmate’s individual file.
[21] We cannot resolve this debate because it is merely
theoretical. Other than a record of his interview, Jacob has
failed to describe with any particularity what kind of informa-
tion, not listed in § 83-1,125.01(1), he is seeking access to. By
the time of the summary judgment hearing, Jacob could only
describe he was seeking disclosure of whatever information,
excluding orders and notices, the Board of Parole employ-
ees called the complete record of the Review. The inquiry
of whether a requested record is a public record focuses on
the information or record sought. 38 Without a more concrete
articulation of what the information is from the individual file
38
Id.
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Cite as 313 Neb. 109that Jacob seeks public disclosure of, no court can determine
whether the Board of Parole abused its discretion in placing
the information in the individual file and thereby improperly
sheltered it from public disclosure.
[22] Courts do not address or dispose of abstract ques-
tions or issues that might arise in a hypothetical or fictitious
setting. 39 Jacob presents only speculation that there might be
some information in his individual file other than what is listed
in § 83-1,125.01(1), any notes of the interview, and parole pro-
ceedings orders and notices, all of which, as a matter of law,
the public is not entitled to under the public records statutes.
We are cognizant that Jacob was not privy to what informa-
tion is in the file, and thus, the reason for his public records
request. Nevertheless, he had the opportunity during discov-
ery to learn more generally what types of information were
placed in his individual file. Jacob does not contest on appeal
any discovery ruling that prevented him from moving beyond
speculation concerning what categories of information alleg-
edly were improperly placed in his individual file. He did not
assert below that summary judgment was premature because he
was not yet able to obtain such information. 40
A jointly submitted affidavit set forth that the individual file
maintained for each candidate for parole includes the “Offender
Board Review Screen,” which is used to input pertinent infor-
mation when the Board conducts an in-person informal review
of an incarcerated individual. Because the Legislature has
declared that the contents of an offender’s individual file are
confidential, the affidavits jointly submitted at the summary
judgment hearing were enough to make a prima facie case on
behalf of the Board demonstrating it would be entitled to judg-
ment if the evidence were uncontroverted at trial. The burden
shifted to Jacob at the summary judgment hearing to show the
39
See Stewart v. Heineman, 296 Neb. 262, 892 N.W.2d 542 (2017).
40
See Neb. Rev. Stat. § 25-1335 (Reissue 2016).
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Cite as 313 Neb. 109information he sought from the individual file was not confi-
dential because it should not have been there. He did not make
such a showing.
The district court did not err in granting summary judgment
in favor of the Board.
2. Leave to Amend
The district court also did not err by denying Jacob’s motion
to amend the petition to add a request for a declaratory judg-
ment on the meaning of “complete record” under § 83-1,111(1)
and whether the Board complied with its duty to make a “com-
plete record” of the Review.
[23] First, we find no merit to Jacob’s argument that Neb.
Rev. Stat. § 25-21,149 (Reissue 2016), by stating that “[n]o
action or proceeding shall be open to objection on the ground
that a declaratory judgment or decree is prayed for,” deprives
the trial court of the discretion conferred by § 6-1115(a) of the
rules of pleading to determine whether leave to amend should
be given. The purpose of the Uniform Declaratory Judgments
Act is to provide a procedure for the speedy determination
of issues which would otherwise be delayed to the possible
injury of the parties. 41 Section 25-21,149, along with the other
provisions of the Uniform Declaratory Judgments Act, 42 set
forth the judicial power to make declaratory judgments and to
what such judgments may extend. 43 Section 25-21,149 states
in full:
Courts of record within their respective jurisdictions
shall have power to declare rights, status, and other legal
relations whether or not further relief is or could be
claimed. No action or proceeding shall be open to objec-
tion on the ground that a declaratory judgment or decree
41
Mullendore v. School Dist. No. 1, 223 Neb. 28, 388 N.W.2d 93 (1986).
42
See Neb. Rev. Stat. §§ 25-21,149 to 25-21,164 (Reissue 2016).
43
See County of Douglas v. OEA Senior Citizens, Inc., 172 Neb. 696, 111
N.W.2d 719 (1961).
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Cite as 313 Neb. 109is prayed for. The declaration may be either affirmative or
negative in form and effect, and such declarations shall
have the force and effect of a final judgment or decree.
Any action or proceeding seeking a declaratory judgment
that any tax, penalty, or part thereof is unconstitutional
shall be brought within twelve months after such tax or
penalty was levied or assessed.
This language does not address leave to amend.
While declaratory judgments may be unique in their
­forward-looking nature, 44 this attribute does not prevent the
plaintiff from timely pleading the remedy. Amendment of a
pleading to add a claim for declaratory judgment is, like the
addition of other claims, governed by § 6-1115(a) of the rules
of pleading.
Section 6-1115(a) provides in relevant part that in cases
where a responsive pleading is permitted, before a responsive
pleading is served, “[a] party may amend the party’s pleading
once as a matter of course . . . .” Further, § 6-1115(a) provides
that after a responsive pleading is served, however, “a party
may amend the party’s pleading only by leave of court or by
written consent of the adverse party, and leave shall be freely
given when justice so requires.”
[24-26] With respect to the mandate under § 6-1115(a)
that leave to amend “shall be freely given when justice so
requires,” we have said the denial of leave to amend pleadings
is appropriate only in those limited circumstances in which
undue delay, bad faith on the part of the moving party, futil-
ity of the amendment, or unfair prejudice to the nonmoving
party can be demonstrated. 45 But we have also explained that
the mandated liberality in permitting amendments is generally
when leave to amend is “proposed at an opportune time and
44
See Hauserman v. Stadler, 251 Neb. 106, 554 N.W.2d 798 (1996).
45
See, McCaulley v. C L Enters., 309 Neb. 141, 959 N.W.2d 225 (2021);
InterCall, Inc. v. Egenera, Inc., 284 Neb. 801, 824 N.W.2d 12 (2012).
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Cite as 313 Neb. 109will be in the furtherance of justice.” 46 “[A]t certain stages
of a proceeding[,] a pleading may not be amended so as to
change the issues and quantum of proof as to any issue.” 47
Ultimately, permission to amend pleadings is addressed to the
sound discretion of the trial court; absent an abuse of that dis-
cretion, the trial court’s decision will be affirmed. 48 A judicial
abuse of discretion exists if the reasons or rulings of a trial
judge are clearly untenable, unfairly depriving a litigant of a
substantial right and denying just results in matters submitted
for disposition. 49
It was not clearly untenable for the district court to have
found there was an undue delay in bringing the motion to
amend after discovery was closed and nearly a year had passed
for the parties to prepare their legal arguments. While Jacob
points out that he may incur new filing fees if he must bring
an action for declaratory judgment separately, this is not an
unjust result under the circumstances presented. Although the
request for declaratory judgment and the public records request
are largely based on the same historical facts, the request for
declaratory judgment involves legal questions that are entirely
different from those presented in a petition for a public records
writ of mandamus. A public records writ of mandamus involves
a public disclosure of a public record in the possession of a
public body; it does not involve challenges based on the failure
to make such a record. Any claim based on obligations to make
a record is outside the public records statutes.
[27] In sum, allowing Jacob to amend the petition to seek
declaratory judgment would have delayed the proceedings
while the Board responded to an entirely different legal ques-
tion. And Jacob presented no reason why he did not present
46
Bittner v. Miller, 226 Neb. 206, 210, 410 N.W.2d 478, 481 (1987).
47
Id.48
Id.49
Simons v. Simons, 312 Neb. 136, 978 N.W.2d 121 (2022).
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Cite as 313 Neb. 109this question sooner. Based on the written response of the
Board of Parole to his written public records request, Jacob
should have known before bringing the current action that the
Board alleged the Notice contained its complete record of the
Review. His petition could have sought, from the beginning, a
declaratory judgment as to what a complete record means and
whether the Board of Parole met its statutory obligations to
create a complete record. That Jacob did not think to ask for
this declaratory relief until almost a year had passed after filing
the petition does not make the denial of the motion to amend
unjust. A pro se party is held to the same standards as one who
is represented by counsel. 50
VI. CONCLUSION
For these reasons, the district court did not err in denying
Jacob’s motion to amend, in denying Jacob’s motion for sum-
mary judgment, and in granting summary judgment in favor of
the Board.
Affirmed.
50
State v. Anders, 311 Neb. 958, 977 N.W.2d 234 (2022).