Huff v. Brown , 305 Neb. 648 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/26/2020 08:08 AM CDT
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
HUFF v. BROWN
Cite as 305 Neb. 648
Herchel H. Huff, appellee, v. Doug Brown,
sheriff of Furnas County, appellant.
___ N.W.2d ___
Filed April 23, 2020. No. S-19-271.
1. Judgments: Appeal and Error. In a bench trial of a law action, the
trial court’s factual findings have the effect of a jury verdict, and an
appellate court will not disturb those findings unless they are clearly
erroneous.
2. Mandamus. Whether to grant a writ of mandamus is within the trial
court’s discretion.
3. Public Officers and Employees: Records. The duty, if any, to provide
public records stays with the office of the records’ custodian and is
transferred to a new holder of the office.
4. Mandamus: Proof. A party seeking a writ of mandamus under Neb.
Rev. Stat. § 84-712.03 (Cum. Supp. 2018) has the burden 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 docu-
ment 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).
5. ____: ____. If the public body holding the record wishes to oppose
the issuance of a writ of mandamus, the public body must show, by
clear and conclusive evidence, that the public record at issue is exempt
from the disclosure requirement under one of the exceptions provided
by Neb. Rev. Stat. § 84-712.05 (Cum. Supp. 2018) or Neb. Rev. Stat.
§ 84-712.08 (Reissue 2014).
6. Mandamus: Words and Phrases. Mandamus is a law action and is
defined as an extraordinary remedy, not a writ of right, issued to compel
the performance of a purely ministerial act or duty, imposed by law
upon an inferior tribunal, corporation, board, or person, where (1) the
relator has a clear right to the relief sought, (2) there is a corresponding
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HUFF v. BROWN
Cite as 305 Neb. 648
clear duty existing on the part of the respondent to perform the act, and
(3) there is no other plain and adequate remedy available in the ordinary
court of law.
7. Mandamus: Proof. Under Neb. Rev. Stat. § 84-712.03(1)(a) (Cum.
Supp. 2018), the requesting party’s initial responsibility includes demon-
strating that the requested record is a public record that he or she has a
clear right to access under the public records statutes and that the public
body or custodian against whom mandamus is sought has a clear duty to
provide such public records.
Appeal from the District Court for Furnas County: James E.
Doyle IV, Judge. Affirmed in part, and in part reversed and
remanded.
Melodie T. Bellamy, Special Counsel for Furnas County, and
Morgan R. Farquhar, Furnas County Attorney, for appellant.
Herchel H. Huff, pro se.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ.
Miller-Lerman, J.
NATURE OF CASE
Doug Brown, the sheriff of Furnas County, appeals the
order of the district court for Furnas County, Nebraska, which
granted in part a writ of mandamus requiring him to provide
records to Herchel H. Huff pursuant to the public records
statutes. Brown argues, inter alia, that the court erred when it
substituted him as a party for the prior sheriff, when it granted
the writ based solely on Huff’s affidavit, when it granted the
writ despite Huff’s failure to respond to the prior sheriff’s
response which required Huff to deposit fees before certain
records would be produced, and when it waived fees that were
authorized by statute.
We conclude that although the district court did not err when
it substituted Brown’s name for that of the former sheriff,
the court erred when it determined that Huff had shown that
Brown had a clear duty to provide the records requested. We
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HUFF v. BROWN
Cite as 305 Neb. 648
therefore affirm in part the order to the extent it denied Huff’s
petition but reverse in part the order to the extent it granted the
writ of mandamus.
STATEMENT OF FACTS
On September 23, 2018, Huff sent to then Furnas County
sheriff Kurt Kapperman a 4-page letter which included 15
numbered paragraphs of requests for public records. Huff is an
inmate serving sentences for convictions including motor vehi-
cle homicide. The documents requested by Huff included, inter
alia, records relating to the investigation of charges against
him, criminal history records of jurors who had convicted
him, criminal history records of and fees and expenses paid
to witnesses and prosecuting attorneys in his trial, information
regarding the salaries paid to the sheriff, and records relating to
the impoundment of his vehicle.
Kapperman responded in writing to Huff’s requests on
October 2, 2018. Kapperman stated that “no responsive records
exist[ed]” as to 14 of the 15 paragraphs of requests. The
remaining paragraph, denominated as “request 3,” included
requests for jail records, including medical records, maintained
pursuant to Neb. Rev. Stat. § 47-204 (Reissue 2010). In request
3, Huff requested his own jail records as well as records for
certain jurors from his trial that he asserted had been “con-
victed [of] or cited for DWI.” In his response, Kapperman
stated with respect to the request for jail records relating to
jurors that “no responsive records exist, and the request seeks
protected medical information.” With respect to the request for
Huff’s jail records, Kapperman estimated that “the inspection
and copying of records would cost approximately $750.00”
and stated that he therefore required “a deposit of $750.00
before fulfilling such a request.” Kapperman cited Neb. Rev.
Stat. § 84-712(3)(f) (Reissue 2014) as authority for requiring
the deposit.
On October 15, 2018, Huff filed a petition for writ of man-
damus under Neb. Rev. Stat. § 25-2156 (Reissue 2016) and
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the public records statutes, Neb. Rev. Stat. § 84-712 et seq.
(Reissue 2014 & Cum. Supp. 2018). Huff named “Sheriff Kurt
Kapperman” as the defendant in the petition. Huff sought an
“order compelling . . . Kapperman to release all requested
documents per the [public records] statutes.” Kapperman filed
an answer on January 21, 2019, in which he generally denied
the allegations in Huff’s petition. Kapperman also asserted that
Huff had failed to state a claim against him upon which relief
could be granted, because Brown had been sworn into office on
January 3 and Kapperman was no longer sheriff.
On January 30, 2019, the court held a telephonic hearing.
The court first took up and overruled Huff’s motion to dis-
qualify the judge. The court then turned to the petition for a
writ of mandamus. The court referred to an affidavit of Huff
dated November 13, 2018, which had been offered into evi-
dence by Huff and marked as exhibit 3. It generally asserted
that Huff had requested documents from Kapperman, that the
documents were public records subject to disclosure, and that
Kapperman had failed to comply with Huff’s request and was
refusing to release records, in violation of the public records
statutes. Kapperman objected to exhibit 3 “on the basis that [he
had not] had an opportunity to cross-examine” Huff regarding
statements in the affidavit. The court overruled Kapperman’s
objection and admitted exhibit 3 into evidence.
Neither Huff nor Kapperman offered additional evidence,
and the court heard argument by both parties. In addition to
arguing that he could not comply with Huff’s request because
he was no longer the sheriff of Furnas County, Kapperman
argued that Huff was barred from proceeding with his claim
because Huff had failed to timely respond to Kapperman’s
response of October 2, 2018, in violation of § 84-712(4),
which requires a deposit before Kapperman would provide the
requested records that were in his possession.
On February 14, 2019, the district court filed an order in
which it granted in part and denied in part Huff’s petition for a
writ of mandamus. The court addressed Kapperman’s argument
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that Huff failed to state a claim against Kapperman because he
was no longer the Furnas County sheriff. The court stated that
the fact that Kapperman was no longer the sheriff was “of no
consequence” because the petition was directed at the office of
the sheriff, not at the specific individual occupying the office
at any given time. Accordingly, the court permitted Huff “to
substitute . . . Brown, the current Furnas County Sheriff[,] in
the caption of the case in place of Kapperman.”
Turning to the merits of Huff’s request, the court stated that
the sheriff’s response that he had “no responsive records” to
most of Huff’s requests was “not sufficient.” The court cited
Nebraska precedent which it read to provide that the refer-
ence in § 84-712.01(1) to public records “of or belonging to”
a public custodian “should be construed liberally to include
documents or records that a public body is entitled to possess,
regardless of whether the public body actually has posses-
sion of the documents.” Based on that reading of precedent,
the court reviewed Huff’s specific requests and categorized
them into three general groups: (1) records the sheriff was
not required to produce, (2) records the sheriff appeared to be
entitled to possess, and (3) records the sheriff appeared not to
be entitled to possess.
The court included in the first category—records the sher-
iff was not required to produce—medical records related
to persons other than Huff and a report of the names of all
county officials. In his request 3, Huff requested, inter alia,
jail records, including medical records, for certain jurors in
his trial. The court determined that medical records relat-
ing to persons other than Huff were exempt from production
under § 84-712.05(2). In another request, Huff requested
records maintained pursuant to Neb. Rev. Stat. § 23-1306
(Reissue 2012) regarding “all the county officers with their
official signatures and seals of their respective offices.” The
court noted that § 23-1306 gave the county clerk the duty to
maintain such records regarding county officers. The court
determined that the sheriff might be entitled to possess such
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records with regard to his own office, and it therefore included
records regarding the office of sheriff in the second category,
discussed below. However, the court concluded that with
regard to records regarding other county officials, the sheriff
did not have a duty to respond. The court therefore denied in
part Huff’s petition for mandamus, because it pertained to the
requests for medical records of others and information regard-
ing other county officers.
The court generally granted mandamus as to Huff’s remain-
ing requests and set forth different requirements as to each
request depending on how certain the court was that the sher-
iff was entitled to possess the requested record. The requests
were generally denominated as records the court presumed the
sheriff was entitled to possess or records the court thought the
sheriff might not be entitled to possess. This categorization
was consistent with the second and third categories identi-
fied above.
Regarding records it presumed the sheriff was entitled to
possess, the court ordered the sheriff to conduct a due and dili-
gent investigation to determine whether such records existed
and, if so, to provide them to Huff. If after a due and diligent
investigation the sheriff determined he was not entitled to pos-
sess the records, the sheriff would be granted the opportunity
to rebut the presumption by affidavit evidence. Such affidavit
would need to include the facts necessary to support the sher-
iff’s determination, as well as the identity and location of any
other custodian of records that the sheriff believed was entitled
to possess the records.
Regarding records the court thought the sheriff might not
be entitled to possess, the court ordered the sheriff to con-
duct a due and diligent investigation to determine whether
such records existed and, if so, to provide them to Huff. If
the records were no longer available, the sheriff would be
required to explain in writing why such records were no
longer available. If the sheriff determined his office was not
entitled to possess the records, the sheriff needed to report
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HUFF v. BROWN
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facts supporting such determination and identify any other
public custodian the sheriff believed was entitled to possess
the records.
In its order, the court also addressed the requirement that
Huff deposit a fee before the sheriff would provide Huff’s jail
records, which the sheriff had determined he could provide.
The court stated that § 84-712(3)(b) and (f) authorizes a pub-
lic records custodian to charge a fee that “‘shall not exceed
the actual added cost of making the copies available’” and to
require a deposit if the cost is estimated to exceed $50. The
court concluded that “[t]his provision authorized the deposit
requested by the sheriff.” The court noted, however, that Huff
was indigent and had been permitted to proceed in forma pau-
peris in this action.
The court acknowledged that neither the public records
statutes nor the in forma pauperis statutes explicitly supported
a waiver of the fees chargeable under § 84-712. Nevertheless,
the court determined that in enacting the public records stat-
utes, “the [L]egislature intended to make all public records
readily available to the public,” and the court “infer[red that]
the [L]egislature intended to avoid the imposition of copying
expenses as [a] means to avoid the obligation to produce pub-
lic records.”
The court noted that as an inmate, Huff did not have the
ability to examine public records in situ, and that therefore,
his only access to records would be by obtaining copies; the
court further noted that as a prisoner, Huff had little financial
resources to pay the costs. Therefore, in order to fulfill what it
determined to be the Legislature’s intent and the court’s author-
ity under § 84-712.03(2) “to grant such other equitable relief
as may be proper,” the court determined that fees were subject
to waiver in an appropriate circumstance. The court determined
that Huff’s requests were not frivolous, and it therefore con-
cluded that the fees associated with his requests were subject
to waiver and should in fact be waived. The court applied this
holding to both the $750 deposit that the sheriff had required
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and any fees that might be chargeable in connection with the
additional production of records ordered by the court.
In conclusion, the court ordered that the sheriff would have
30 days from the date of the order
to conduct the investigations and inquiries required, to
deliver to Huff the records required by this order or state
under oath he is not entitled to possess such records and
the identity and location of any custodian of the public
body he believes is entitled to possess such records and
to contemporaneously file with the court a report of his
responses to the requests and his responses to this writ.
Brown appeals the order of the district court.
ASSIGNMENTS OF ERROR
Brown claims, renumbered and restated, that the court erred
when it (1) substituted Brown for Kapperman as the defendant;
(2) found that the sheriff had a duty to provide certain records
even after Huff failed to pay a fee or timely respond as required
under § 84-712(4); (3) received exhibit 3 into evidence and
ordered a writ of mandamus without admitting any other evi-
dence; (4) ordered the sheriff (a) to provide records without the
payment of an authorized fee, (b) to provide records that were
not in his possession, and (c) to conduct an investigation and
to report on other requested records by identifying and locating
the custodian of such records; and (5) waived fees and costs
authorized under § 84-712 and ordered the sheriff to produce
records without the payment of such fees and costs.
STANDARDS OF REVIEW
[1,2] Mandamus is a law action, and it is an extraordi-
nary remedy, not a writ of right. Aksamit Resource Mgmt. v.
Nebraska Pub. Power Dist., 299 Neb. 114, 907 N.W.2d 301
(2018). In a bench trial of a law action, the trial court’s fac-
tual findings have the effect of a jury verdict, and we will not
disturb those findings unless they are clearly erroneous. Id.
Whether to grant a writ of mandamus is within the trial court’s
discretion. Id.
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HUFF v. BROWN
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ANALYSIS
Petition for Writ of Mandamus and Request for Public
Records Were Directed at Person Holding Office
of Sheriff, and Therefore, Court Did Not Err
When It Allowed Substitution of Brown’s
Name for Kapperman’s.
Brown first claims that the district court erred when it
substituted his name as sheriff for that of Kapperman as the
defend­ant in this action. We determine that the district court
fairly interpreted Huff’s records request and petition for a writ
of mandamus as being directed at the office of the Furnas
County sheriff as the custodian of public records and that
therefore, the court did not err when it allowed the caption
for this action to be updated to reflect the name of the current
holder of that office.
The district court noted that “Huff’s request for the produc-
tion of public records was directed to the office of the sheriff
of Furnas County . . . not to the individual who occupied the
office at the time of the delivery of the request.” We agree
with the district court’s interpretation of the request and of
Huff’s petition for a writ of mandamus as seeking compliance
with that request by the sheriff. A request under the public
records statutes is directed to the custodian of the records being
sought, and although a request is made to the specific person
holding the position of custodian, in substance it is inherently
directed at the holder of the office that acts as the custodian of
the records.
[3] We note that Neb. Rev. Stat. § 23-1709 (Reissue 2012)
provides in relevant part that “[w]hen a sheriff goes out of
office he or she shall deliver to his or her successor all books
and papers pertaining to the office . . . .” We read the require-
ment under § 23-1709 that a sheriff leaving office deliver “all
books and papers” to his or her successor to include public
records for which the sheriff is custodian. We further note that
with regard to the naming of parties to an action, Neb. Rev.
Stat. § 25-322 (Reissue 2016) provides in relevant part:
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An action does not abate by . . . the transfer of any
interest therein during its pendency, if the cause of action
survives or continues. . . . In case of [a] transfer of inter-
est, the action may be continued in the name of the origi-
nal party or the court may allow the person to whom the
transfer is made to be substituted in the action.
Reading these statutes together, we determine that Huff’s
action for mandamus to enforce his public records request
directed to the holder of the office of sheriff did not abate as
a result of the transfer of public records of the sheriff’s office
from Kapperman as custodian to Brown as custodian. The
duty, if any, to provide public records stays with the office
of the records’ custodian and is transferred to the new holder
of the office. We therefore conclude that the district court did
not err when it allowed the substitution of Brown’s name for
Kapperman’s name as custodian of the public records at issue
in this action.
In Order for Court to Issue Mandamus, Huff
Needed to Show That Sheriff Had Clear
Duty to Provide Requested Records.
The remaining issues on appeal deal with Huff’s requests for
public records and whether he was entitled to a writ of manda-
mus requiring the sheriff to provide the requested records. We
therefore review standards relating to mandamus in the context
of a public records request.
[4,5] A person denied access to a public record may file
for speedy relief by a writ of mandamus under § 84-712.03.
Aksamit Resource Mgmt. v. Neb. Pub. Power Dist., 299 Neb.
114, 907 N.W.2d 301 (2018). We have stated that a party seek-
ing a writ of mandamus under § 84-712.03 has the burden 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.
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Aksamit Resource Mgmt., supra. Where a suit is filed under
§ 84-712.03, the Legislature has imposed upon the public
body the burden to “‘sustain its action.’” Aksamit Resource
Mgmt., 299 Neb. at 123, 907 N.W.2d at 308. If the public
body holding the record wishes to oppose the issuance of a
writ of mandamus, the public body must show, by clear and
conclusive evidence, that the public record at issue is exempt
from the disclosure requirement under one of the exceptions
provided by § 84-712.05 or § 84-712.08. See Aksamit Resource
Mgmt., supra.
In the present case, the only documents that the sheriff
asserted were exempt from disclosure under a statutory excep-
tion were medical records that the sheriff asserted to be exempt
under § 84-712.05(2). The court agreed that such records were
exempt from disclosure, and it therefore denied mandamus
as to those records. Huff did not appeal or cross-appeal to
assign error to the court’s denial of mandamus regarding these
records; therefore, the court’s denial of mandamus as to those
records is affirmed and whether the records are exempt from
disclosure is not at issue in this appeal.
The issues on appeal involve records for which the court
granted a writ of mandamus. In his response to Huff’s request,
Kapperman did not assert, and Brown does not argue on
appeal, that these records were exempt from disclosure pursu-
ant to a statutory exception. Instead, in his response to Huff’s
request, Kapperman either (1) asserted that no responsive
records existed or (2) acknowledged that the records existed
but required the deposit of a fee before the records would be
provided. The standard set forth above placing a burden on the
public body to show by clear and convincing evidence that a
record is exempt does not apply when the public body’s reason
for denying a records request is not that the record is exempt
from disclosure under a statutory exception. Instead, we have
acknowledged:
Requiring the public body to demonstrate that an
exception applies to the disclosure of a particular public
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record does not, however, change the fact that it is the
initial responsibility of the relator to demonstrate that the
record in question is a public record within the meaning
of § 84-712.01. Under § 84-712.03, a writ may be sought
by “[a]ny person denied any rights granted by sections
84-712 to 84-712.03 . . . .” In order to establish stand-
ing and jurisdiction, therefore, it must be shown that the
party seeking mandamus has been denied rights under
§ 84-712. A necessary component of this showing is that
the party was seeking a record that is a “public record”
within the meaning of § 84-712.01.
State ex rel. Neb. Health Care Assn. v. Dept. of Health, 255
Neb. 784, 789-90, 587 N.W.2d 100, 105 (1998).
[6,7] The requesting party’s initial responsibility to demon-
strate a prima facie claim for a writ of mandamus requiring
release of public records must be understood in the context of
general requirements for mandamus. Mandamus is a law action
and is defined as an extraordinary remedy, not a writ of right,
issued to compel the performance of a purely ministerial act
or duty, imposed by law upon an inferior tribunal, corporation,
board, or person, where (1) the relator has a clear right to the
relief sought, (2) there is a corresponding clear duty existing
on the part of the respondent to perform the act, and (3) there
is no other plain and adequate remedy available in the ordinary
court of law. State ex rel. Rhiley v. Nebraska State Patrol,
301 Neb. 241, 917 N.W.2d 903 (2018). Therefore, under
§ 84-712.03(1)(a), the requesting party’s initial responsibility
includes demonstrating that the requested record is a public
record that he or she has a clear right to access under the
public records statutes and that the public body or custodian
against whom mandamus is sought has a clear duty to provide
such public records.
As noted above, the district court denied mandamus with
regard to medical records the sheriff asserted were exempt
from disclosure. The court also denied mandamus with regard
to records regarding county officials other than the county
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sheriff. Because Huff does not appeal or cross-appeal that rul-
ing, the denial of mandamus as to those records is affirmed.
With Regard to Records for Which Sheriff Required
a Deposit of Fees, Huff Failed to Show He Timely
Responded to the Request and Therefore Failed
to Show the Sheriff Had a Clear Duty to
Provide Such Records.
As we have indicated above, the remaining issues on appeal
relate to records with respect to which the court granted man-
damus and that the sheriff asserts he has no duty to provide
either because no such record existed or because the records
existed but Huff did not timely respond to the sheriff’s request
for a deposit of fees before the records would be provided.
We first address the records that in his response Kapperman
acknowledged were in his possession but for which he required
a deposit of fees before the request could be fulfilled. We
determine that because Huff did not timely respond as required
under § 84-712(4), the sheriff did not have a clear duty to pro-
vide the records and the court erred when it granted mandamus
as to these records.
In his response to Huff’s request, Kapperman asserted that
most of the requested records did not exist but he acknowl-
edged that jail records relating to Huff as sought in request
3 existed and were public records that could be provided to
Huff. However, Kapperman estimated that “the inspection and
copying of records would cost approximately $750.00,” and
he therefore required from Huff “a deposit of $750.00 before
fulfilling such a request.” We note that § 84-712(3)(b) provides
in part that “the custodian of a public record may charge a fee
for providing copies of such public record . . . , which fee shall
not exceed the actual added cost of making the copies avail-
able.” Also, § 84-712(3)(f), which was cited by Kapperman in
his response, provides that “[i]f copies requested in accordance
with . . . this section are estimated by the custodian of such
public records to cost more than fifty dollars, the custodian
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may require the requester to furnish a deposit prior to fulfilling
such request.”
Brown claims on appeal that the district court erred when
it found that the sheriff had a duty to provide these records
even after Huff failed to respond to Kapperman’s request for a
deposit before providing the records. Brown cites § 84-712(4),
which provides in relevant part that after the custodian has
provided to the requester an estimate of the expected cost of
the copies:
The requester shall have ten business days to review the
estimated costs, including any special service charge, and
request the custodian to fulfill the original request, negoti-
ate with the custodian to narrow or simplify the request,
or withdraw the request. If the requester does not respond
to the custodian within ten business days, the custodian
shall not proceed to fulfill the request.
Kapperman’s response to Huff’s request was dated October
2, 2018. Huff does not assert, and there is nothing in the record
that indicates, that within 10 business days thereafter, Huff
either requested Kapperman to fulfill the original request,
attempted to negotiate with Kapperman to narrow or simplify
the request, or withdrew his request. Instead, on October 15,
Huff filed a petition for a writ of mandamus in the district
court. Brown argues that because Huff did not respond within
10 business days in one of the ways set forth in § 84-712(4),
and because the statute provides that in such circumstance, “the
custodian shall not proceed to fulfill the request,” the sher-
iff no longer had a duty to fulfill the request. We agree with
the sheriff.
Huff attached to his petition copies of his request and
Kapperman’s response. Huff did not assert in his petition that
he had responded within 10 business days to Kapperman’s
request for a deposit of fees; nor did he attach a copy of any
such response. The only additional evidence Huff offered at
the hearing was his affidavit, in which he made no asser-
tion that he had timely responded. Without a response, under
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§ 84-712(4), Kapperman was no longer under a duty to fulfill
the request for jail records. Therefore, we determine that with
respect to these records, Huff failed his initial responsibility to
demonstrate that he had been denied access to the public record
as guaranteed by § 84-712, because he failed to demonstrate
that the sheriff had a clear duty under § 84-712 to fulfill the
request. See Russell v. Clarke, 15 Neb. Ct. App. 221, 724 N.W.2d
840 (2006) (affirming denial of petition for writ of mandamus
where evidence established that there were no public records
maintained by custodian other than those of which copies were
provided or of which custodian offered to provide copies upon
payment of reasonable expense of copying, and requester failed
to adduce evidence to contrary).
We note in connection with this request that in his petition,
Huff asserted that Kapperman was “charging [an] amount more
than what it would cost to copy these records.” However, Huff
did not assert a factual basis to support his claim of unreason-
ableness; nor did he present evidence to show that the $750
requested by Kapperman exceeded the reasonable expense of
copying. There was no showing indicating the volume of docu-
ments requested and therefore no way to determine whether
$750 was a reasonable cost, and in addition, the district court
made no finding that the requested fee was excessive or unrea-
sonable. Instead, in its order, the court stated that § 84-712(3)(f)
“authorized the deposit requested by the sheriff.” Although the
court thereafter determined that the fee should be waived, such
determination was based on Huff’s inability to pay rather than
the reasonableness of the fee. Because the sheriff has been
relieved of his duty, if any, to provide records encompassed
by request 3, we do not comment on the court’s ruling that the
fees provided for in § 84-712(3)(f) can be waived. Compare 5
U.S.C. § 552(a)(4)(A) (2018) (providing for statutory waiver
of fee).
On the record before the district court, Huff did not show
a clear duty on the part of the sheriff as custodian of the jail
records to provide the records which the sheriff offered to
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provide upon a deposit of fees. We therefore conclude that the
court abused its discretion when it granted mandamus as to
those records.
Huff Failed to Demonstrate That Sheriff Had
a Clear Duty to Provide Records That
Sheriff Asserted Did Not Exist.
Regarding the majority of the records requested by Huff,
the sheriff responded that no responsive records existed. The
district court granted mandamus with regard to those requests
encompassed by this response under the reasoning that such
records were records “‘of or belonging to’” the sheriff because
the sheriff was “‘entitled to possess’” the records. We deter-
mine that the court misapplied this court’s precedent in reach-
ing that conclusion, and we conclude that Huff failed to
establish as a prima face case that the requested records were
records that the sheriff had a clear duty to provide.
The record from the district court does not contain evidence
to support a finding that the sheriff was the custodian of the
requested records. As noted above, Huff attached to his peti-
tion Kapperman’s response in which Kapperman asserted that
as to most of Huff’s requests, “no responsive records exist.”
In his pleadings and in his affidavit, Huff made generalized
allegations that Kapperman was withholding records and not
fulfilling his duty. But there was no other evidence to establish
that the sheriff was the custodian of the requested records. In
its order, the court does not explicitly find that the sheriff was
being untruthful and that the requested records were actually
in his possession. Instead, the court reasoned that the sheriff
was required to provide the records to Huff because the sher-
iff was “‘entitled to possess’” the records.
For purposes of the public records statutes, § 84-712.01(1)
defines “public records” to “include all records and documents,
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,
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bureau, commission, council, subunit, or committee of any of
the foregoing.” In its order in this case, the district court cited
Evertson v. City of Kimball, 278 Neb. 1, 9, 767 N.W.2d 751,
759 (2009), in which we stated that this definition “does not
require a citizen to show that a public body has actual pos-
session of a requested record” and we liberally construed the
“‘of or belonging to’” language of § 84-712.01(1) to include
“any documents or records that a public body is entitled to pos-
sess—regardless of whether the public body takes possession.”
We stated that “[t]he public’s right of access should not depend
on where the requested records are physically located.” Id. The
district court in its order interpreted Evertson “to require the
custodian who receives a public records request to examine
each of the requests to determine whether, as a custodian in
the public body to which the request is directed, he or she is
‘entitled to possess the document’ requested.” The court then
categorized the records requested by Huff as those that the
sheriff “presumptively appears to be entitled to possess” and
those “which it appears the sheriff may not be entitled to pos-
sess.” As to each category, the court required the sheriff to
investigate whether he was entitled to possess the requested
documents and either provide the documents, explain why he
could not possess them, or identify any other custodian the
sheriff believed to be entitled to possess the records.
We determine that the district court read Evertson too
broadly. In Evertson, the city’s mayor had commissioned an
investigation by a private entity and two citizens requested
from the city a written report that was in the possession of
the private entity. Although we ultimately concluded that the
record was exempt from production based on a statutory excep-
tion, as a preliminary step we determined that the report was
a “public record” under § 84-712.01 even though the city had
declined to take possession. In reaching that conclusion, we
set forth the language relied on by the district court to the
effect that public records include documents the public body is
entitled to possess.
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However, Evertson must be understood in the context of a
request for documents in the possession of a private entity. In
Evertson, we set forth tests for determining whether records
in the possession of a private party are public records sub-
ject to disclosure, and such tests generally focused on the
public body’s delegation to a private entity of its authority
to perform a government function and the preparation of the
records as part of such delegation of authority. Thus, it was in
the context involving the public body’s access to documents
in the possession of a private entity that the “entitled to pos-
sess” language in Evertson, 278 Neb. at 9, 767 N.W.2d at
759, emerged.
In the present case, Huff did not assert, and there is no indi-
cation from the record, that any of the documents requested
by Huff were in the possession of a private entity to whom
the sheriff had delegated authority to perform a function of
the sheriff’s office. The court made general findings that the
requested records were records that the sheriff appeared to
be entitled to possess; however, the court made no indication
whether it thought that, contrary to the response that no respon-
sive records existed, the records were actually in the sheriff’s
possession or whether it thought the sheriff could obtain the
records from some other unspecified custodian pursuant to
some unspecified authority. Huff presented no evidence to con-
tradict the sheriff’s response or to establish that the sheriff was
the custodian of the requested records.
The sheriff argued at the hearing that the records at issue
were “not items that are kept by the sheriff’s department” and
that instead, the custodians of certain requested records may
have been other county officers such as the county attorney
or the county clerk. Therefore, it is possible the court may
have determined that the sheriff was “entitled to possess” such
records in the performance of his duties because the sheriff
could request the other county officers to provide the records.
See Evertson v. City of Kimball, 278 Neb. 1, 9, 767 N.W.2d
751, 759 (2009). But we do not think that Evertson should
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be extended to apply to records normally in the possession of
other governmental custodians. Although the sheriff may be
able to request records from another county office, it does not
mean they are records “of or belonging to” the sheriff; instead,
they are records “of or belonging to” the other county office.
See § 84-712.01.
The public records statutes are directed to “the custodian” of
a requested public record, see § 84-712, and the duties imposed
thereunder on a specific custodian relate only to the public
records of which that specific office or person is the custodian.
A specific custodian only has a clear duty under the public
records statutes to provide the public records of which he or
she is custodian. It is the obligation of the person requesting a
record to determine the proper custodian and to make a request
of that person or office.
The record of proceedings in this case is that in his response,
the sheriff asserted that as to most of Huff’s requests, no
responsive records existed. The only evidence presented by
Huff was his affidavit in which he made general allegations
that the sheriff failed to comply with his requests. But there
is no evidence to support a showing that the sheriff was in
fact custodian of any of the records at issue, and therefore,
Huff failed to make a prima facie showing that the sheriff had
a clear duty under the public records statutes to provide the
records. Although other county officers may have been custo-
dians of the requested records, the public records statutes did
not impose a duty on the sheriff to obtain those records on
Huff’s behalf.
For completeness, we note that in another request subse-
quent to request 3, Huff sought the criminal history records
of various individuals such as jurors and attorneys. Neb.
Rev. Stat. § 29-3520 (Reissue 2016) provides in part that
“[c]omplete criminal history record information maintained
by a criminal justice agency shall be a public record open to
inspection and copying by any person during normal busi-
ness hours and at such other times as may be established by
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the agency maintaining the record.” Further, Neb. Rev. Stat.
§ 29-3522 (Reissue 2016) states that if the requested criminal
justice history record is not in the custody or control of the
person to whom the request is made, such person shall notify
the requester and state the agency, if known, which has custody
or control of the record in question. In this case, the sheriff
responded to this request by asserting “no responsive records
exist.” With respect to Huff’s request for criminal histories, we
read this response as being both that the sheriff did not have
custody of such records and that the sheriff was not aware of
any requested criminal histories that were in the custody and
control of another agency. Although on this record as a whole,
the sheriff has broadly addressed the concerns reflected in
§§ 29-3520 and 29-3522, the better practice going forward
when responding to a request for criminal history record infor-
mation is an initial twofold response containing both an answer
to whether the responder has custody and control of the infor-
mation sought and, if not, which agency, if known, has custody
or control of the record in question or an explicit statement
that the responder is not aware of any criminal history in the
custody of another agency.
We further note, with respect to Huff’s requests for docu-
ments other than criminal histories, that the public records
statutes do not include a requirement similar to that in
§ 29-3522 for a custodian to inform the requester of another
agency that has custody or control of the record requested.
Therefore, to the extent the district court’s mandamus ordered
the sheriff to provide such information with regard to records
other than criminal histories, the sheriff had no clear duty to
do so.
We conclude that the district court abused its discretion
when it granted the writ of mandamus as to the records for
which the sheriff has responded that no responsive records
exist. Because we conclude that Huff did not establish a prima
facie case that he was denied public records that the sheriff
had a clear duty to provide, we reverse the portions of the
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order granting mandamus. We therefore need not consider
Brown’s remaining assignments of error.
CONCLUSION
We conclude that the district court did not err when it
allowed Brown’s name to be substituted for Kapperman’s,
because the present action was directed to the office of the
sheriff of Furnas County. With regard to the merits of Huff’s
petition for a writ of mandamus, to the extent the district
court denied Huff’s petition in part, we affirm such denial. To
the extent the district court granted the remainder of Huff’s
petition and issued mandamus, we conclude that Huff failed
to demonstrate a prima facie case that he had been denied a
request for public records that the sheriff had a clear duty to
provide under § 84-712. We therefore reverse the order to the
extent the court granted mandamus, and we remand the matter
with directions to the district court to deny Huff’s petition for
a writ of mandamus in its entirety.
Affirmed in part, and in part
reversed and remanded.
Freudenberg, J., not participating.