Aksamit Resource Mgmt. v. Nebraska Pub. Power Dist. , 299 Neb. 114 ( 2018 )


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    AKSAMIT RESOURCE MGMT. v. NEBRASKA PUB. POWER DIST.
    Cite as 
    299 Neb. 114
    A ksamit R esource M anagement LLC et al., appellants,
    v. Nebraska P ublic Power District, appellee.
    ___ N.W.2d ___
    Filed February 23, 2018.   No. S-17-333.
    1.	 Statutes: Appeal and Error. Statutory interpretation is a question of
    law that an appellate court resolves independently of the trial court.
    2.	 Mandamus: Words and Phrases. Mandamus is a law action, and it is
    an extraordinary remedy, not a writ of right.
    3.	 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.
    4.	 Mandamus. Whether to grant a writ of mandamus is within the trial
    court’s discretion.
    5.	 Legislature: Statutes: Intent: Records. 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.
    6.	 Legislature: Statutes: Intent: Records: Public Policy. Because the
    Legislature has expressed a strong public policy for disclosure, an appel-
    late court must narrowly construe statutory exemptions shielding public
    records from disclosure.
    7.	 Mandamus: Proof. A party seeking a writ of mandamus under Neb.
    Rev. Stat. § 84-712.03 (Reissue 2014) 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 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).
    8.	 ____: ____. If the public body holding the record wishes to oppose
    the issuance of a writ of mandamus under Neb. Rev. Stat. § 84-712.03
    (Reissue 2014), the public body must show, by clear and conclu-
    sive evidence, that the public record at issue is exempt from the
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    disclosure requirement under one of the exceptions provided by Neb.
    Rev. Stat. § 84-712.05 (Cum. Supp. 2016) or Neb. Rev. Stat. § 84-712.08
    (Reissue 2014).
    9.	 Statutes: Appeal and Error. Statutory language is to be given its plain
    and ordinary meaning, and an appellate court will not resort to inter-
    pretation to ascertain the meaning of statutory words which are plain,
    direct, and unambiguous.
    10.	 Statutes: Legislature: Intent. In construing a statute, a court must
    determine and give effect to the purpose and intent of the Legislature
    as ascertained from the entire language of the statute considered in its
    plain, ordinary, and popular sense.
    11.	 Statutes. It is not within the province of the courts to read a meaning
    into a statute that is not there or to read anything direct and plain out of
    a statute.
    12.	 Statutes: Words and Phrases. Generally, if an exception is expressed
    in the conjunctive, both requirements must be met for the exception to
    become operative.
    13.	 Public Purpose: Intent. A public purpose has for its objective the pro-
    motion of the public health, safety, morals, security, prosperity, content-
    ment, and the general welfare of all the inhabitants.
    Appeal from the District Court for Platte County: Robert R.
    Steinke, Judge. Reversed and remanded with direction.
    Roger P. Cox, P.C., L.L.O., and Peter S. Ratner, of Kellogg,
    Hansen, Todd, Figel & Frederick, P.L.L.C., for appellants.
    Shawn D. Renner, of Cline, Williams, Wright, Johnson &
    Oldfather, L.L.P., and John C. McClure, of Nebraska Public
    Power District, for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
    Funke, JJ.
    Cassel, J.
    INTRODUCTION
    Nebraska Public Power District (NPPD) refused a pub-
    lic records request1 from potential competitors for documents
    1
    See Neb. Rev. Stat. §§ 84-712, 84-712.01, and 84-712.03 to 84-712.09
    (Reissue 2014 & Cum. Supp. 2016).
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    showing cost and revenue information for each of its gen-
    eration units, and the district court declined to issue a writ
    of mandamus to compel disclosure. The competitors’ appeal
    turns on the statutory exception for “proprietary or commercial
    information which if released would give advantage to busi-
    ness competitors and serve no public purpose.”2
    Does the statute require public records useful to an energy
    policy debate to be released despite an advantage flowing to a
    competitor? The words chosen by the Legislature dictate that
    the answer must be “yes.” We cannot say the result is absurd.
    Accordingly, we reverse the district court’s order and direct
    issuance of an appropriate writ.
    BACKGROUND
    Parties
    Aksamit Resource Management LLC and First Security
    Power, LLC, are limited liability companies that were formed
    under the laws of Nebraska and have headquarters in Nebraska.
    Gary Aksamit is the chief executive officer of both companies
    (collectively Aksamit). Aksamit intends to produce and sell
    electricity in Nebraska in the near future.
    NPPD is a public corporation and a political subdivision
    of Nebraska. It has facilities for generation, transmission, and
    distribution of electric power and energy for sale at retail and
    wholesale. NPPD has several different types of generation
    sources: conventional steam electric generation, which gener-
    ates heat from fossil fuel; steam nuclear generation, which
    generates heat from nuclear fission; combined cycle and com-
    bustion turbine generation, which generates heat from the com-
    bustion of natural gas; hydro facilities, which generate power
    from water; diesel facilities, which use diesel engines to pro-
    duce electricity; and wind facilities, where the mode of force
    for the generator is wind.
    2
    § 84-712.05(3) (emphasis supplied).
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    R equests   for  Public R ecords
    and   R esponse
    In March 2016, Aksamit sent to NPPD 22 requests for
    public records. NPPD provided documents to satisfy the vast
    majority of the requests. This appeal concerns only three
    requests:
    • “documents sufficient to show actual expenditures and rev-
    enues by cost and profit centers for each year from 2008
    through 2015”;
    • “each and any document dated January 1, 2013[,] or later that
    contains, reflects, or constitutes a six-year rate outlook by
    cost and profit centers”; and
    • “documents sufficient to show the annual generation output
    and revenue for each [NPPD] generation resource, owned or
    cont[r]acted from 2008 through 2015.”
    NPPD refused to provide records responsive to those
    requests and asserted that the requested information was
    exempt from public disclosure under § 84-712.05(3).
    Petition for Writ
    of M andamus
    Aksamit filed a petition for writ of mandamus. It alleged
    that disclosure of the requested information would serve a
    public purpose, because the citizens of Nebraska “have an
    indisputable interest in knowing the operational and financial
    details associated with state-owned electrical utilities so that
    they may evaluate, among other things, the continued viability
    of public power in Nebraska.”
    The district court ordered NPPD to either promptly provide
    access to the records or, alternatively, to file an answer show-
    ing cause why it declined to provide access to the records. In
    an answer, NPPD maintained that the requested documents fell
    within the exemption in § 84-712.05(3).
    Trial
    At trial, Aksamit focused on public purposes that would be
    served by disclosure of the requested information. Aksamit’s
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    vice president of marketing testified that Aksamit had an
    interest in examining the documents as part of its market-
    ing program to educate Nebraska’s ratepayers and elected
    rate officials.
    Dr. Ernest Goss testified about his research on public power
    in Nebraska. The research involved “[e]xamining the com-
    petitiveness of public power in Nebraska and how it stacks
    up against its counterparts in the contiguous states such as
    MidAmerican Energy in Iowa and . . . examining potential
    problems for the taxpayer, the ratepayer in the years ahead.”
    Based on his research, Goss concluded that “there were clear
    and present dangers” for Nebraska’s taxpayers and electricity
    ratepayers. Goss explained that the trajectory of electricity
    prices was larger than the national average and that the trajec-
    tory of rate changes “was and is unsustainable.”
    A difficulty that Goss encountered while conducting research
    was a lack of access to information about the costs and rev-
    enues for NPPD’s individual generation units. Goss preferred
    to have data relating to individual generation units so that
    he could “more properly find out what’s the cause and is it
    something that’s going to be of fundamental issue for the busi-
    nesses, the citizens, the taxpayers of the State of Nebraska in
    future years.” According to Goss, such data would have been
    “very instrumental in coming to conclusions about the eco-
    nomic viability of public power in Nebraska.”
    Goss, as an economist and Nebraska taxpayer, expressed an
    interest in knowing NPPD’s costs and revenue for individual
    generating units. He explained that NPPD does not pay prop-
    erty or income taxes and that the payments it makes in lieu of
    such taxes are much lower than the property tax rate, which
    meant that “those are taxes that are hoisted off on the Nebraska
    taxpayer.” As an economist, Goss testified that it was very dif-
    ficult to judge whether NPPD was being run efficiently with-
    out looking at the cost and revenue information broken down
    by generation units.
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    A former NPPD employee testified that he observed busi-
    ness inefficiencies that increased NPPD’s costs and negatively
    affected ratepayers. As a board member or a ratepayer, he
    would want access to NPPD’s cost information by genera-
    tion unit, because it would allow a better understanding of
    such costs in order to challenge board members on “why
    there’s a continuation of a high cost generating unit and
    what could be done to lower those costs.” He did not believe
    that NPPD’s total cost information was adequate to make
    assessments as to cost by generating unit, because “[y]ou’re
    lumping several contributors to a total cost which prevents
    you from making sound decisions on the individual contribu-
    tors to that total.” Based on NPPD’s total cost information,
    an individual would be unable to identify “particular high
    cost plans.”
    NPPD focused on the confidentiality of the information in
    the industry and the competitive harm that it may suffer if
    it had to disclose records responsive to Aksamit’s requests.
    There is no real dispute that Aksamit seeks to compete with
    NPPD.
    NPPD also competes with participants in the Southwest
    Power Pool. The power pool is a regional integrated market
    for the buying and selling of electricity. NPPD both buys and
    sells electricity in that market. Thomas James Kent, the vice
    president and chief operating officer of NPPD, testified that
    the power pool makes bidding offers public 90 days after the
    operating day, but that it masks the source of the bid and the
    offer information in order to protect the confidentiality of the
    specific units. Kent testified that if a participant in the power
    pool had access to NPPD’s generation unit-specific cost and
    revenue information, that information could be used to “cre-
    ate bid and offer strategies that would put NPPD at a disad-
    vantage and an unequal playing field in terms of being able
    to compete equally in the commodity market.” He explained
    that “if someone knew the specific cost information of a given
    unit, they may use that information to set a bid in pricing
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    strategy that would make their units more competitive.” And
    if the power pool market is not recovering all of NPPD’s costs
    of production, NPPD’s only other source to make up that loss
    is with the rates charged to ratepayers.
    Kent testified that power purchase agreements are typi-
    cally not considered public documents, because the pricing
    information for the cost of the power is generally considered
    proprietary and confidential by the developer. For example,
    NPPD currently had a power purchase agreement with a wind
    facility in Nebraska which contained a confidentiality clause to
    protect pricing information and other terms. Other of NPPD’s
    contracts similarly contained confidentiality provisions. Kent
    explained that “confidentiality is provided to ensure that the
    pricing arrangements, commercial arrangements, et cetera, are
    specific to that arrangement and can’t be used competitively
    with other entities.” NPPD considered the cost and revenue
    information on a generation unit-specific basis to be propri-
    etary and confidential.
    District Court’s Decision
    The district court dismissed the petition for writ of man-
    damus. It stated that the evidence showed the generation
    unit-specific cost and revenue information was proprietary
    or commercial to NPPD and that if it were released pub-
    licly, it would give advantage to NPPD’s competitors. The
    court reasoned:
    It would be highly unlikely that in enacting
    §84-712.05(3), the Legislature intended to allow record
    custodians to withhold proprietary or commercial infor-
    mation that would give advantage to business competi-
    tors, only to render the exemption meaningless by also
    requiring anything that could conceivably be labeled a
    “public purpose” for release to nullify the exemption.
    Here, release of NPPD’s proprietary generation unit-­
    specific cost and revenue information would give advan-
    tage to its competitors, including the relators. There is
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    merit to NPPD’s argument that creating an unlevel field
    for competition is not a public purpose.
    The district court concluded that NPPD established the
    exemption under § 84-712.05(3) by clear and convincing evi-
    dence. It stated:
    To require disclosure of NPPD’s generation unit-­
    specific cost and revenue information would give advan-
    tage to its business competitors, and result in disadvan-
    tage to its ratepayers by denying them “the benefits of
    a successful and profitable operation and conduct of the
    business of the district.” [Neb. Rev. Stat.] §70-655(1)
    [(Cum. Supp. 2016)]. Such a result would serve no pub-
    lic purpose.
    Aksamit filed a timely appeal, and we granted its petition to
    bypass review by the Nebraska Court of Appeals.
    ASSIGNMENTS OF ERROR
    Aksamit assigns nine errors concerning the dismissal of its
    petition for a writ of mandamus. Consolidated and restated,
    the errors present one issue: Whether the district court erred in
    applying the exemption set forth in § 84-712.05(3).
    STANDARD OF REVIEW
    [1] Statutory interpretation is a question of law that an
    appellate court resolves independently of the trial court.3
    [2-4] Mandamus is a law action, and it is an extraordinary
    remedy, not a writ of right.4 In a bench trial of a law action,
    the trial court’s factual findings have the effect of a jury ver-
    dict, and we will not disturb those findings unless they are
    clearly erroneous.5 Whether to grant a writ of mandamus is
    within the trial court’s discretion.6
    3
    McCoy v. Albin, 
    298 Neb. 297
    , 
    903 N.W.2d 902
    (2017).
    4
    State ex rel. Veskrna v. Steel, 
    296 Neb. 581
    , 
    894 N.W.2d 788
    (2017).
    5
    Id.
    6
    
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    ANALYSIS
    Public Policy
    [5,6] 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.7 The Legislature intended that courts
    liberally construe §§ 84-712 to 84-712.03 for disclosure “when-
    ever any . . . political subdivision . . . record of receipt . . . or
    expenditure involving public funds is involved.”8 And it does
    so “in order that the citizens of this state shall have the full
    right to know of and have full access to information on the
    public finances of . . . the public bodies and entities created to
    serve them.”9 Because the Legislature has expressed a strong
    public policy for disclosure, an appellate court must nar-
    rowly construe statutory exemptions shielding public records
    from disclosure.10
    Burdens of Proof for
    Writ of M andamus
    [7] A person denied access to a public record may file for
    speedy relief by a writ of mandamus under § 84-712.03.11 A
    party seeking 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 examina-
    tion 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
    § 84-712.12 It is uncontested that Aksamit satisfied its prima
    facie claim for release of public records.
    7
    Id.
    8
    § 84-712.01(3).
    9
    
    Id. 10 Evertson
    v. City of Kimball, 
    278 Neb. 1
    , 
    767 N.W.2d 751
    (2009).
    11
    State ex rel. Veskrna v. Steel, supra note 4.
    12
    
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    [8] Where a suit is filed under § 84-712.03, the Legislature
    has imposed upon the public body the burden to “sustain
    its action.”13 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 require-
    ment under one of the exceptions provided by § 84-712.05 or
    § 84-712.08.14
    Statutory Interpretation
    of § 84-712.05(3)
    [9-11] Principles regarding statutory interpretation are well
    known. Statutory language is to be given its plain and ordi-
    nary meaning, and an appellate court will not resort to inter-
    pretation to ascertain the meaning of statutory words which
    are plain, direct, and unambiguous.15 In construing a statute, a
    court must determine and give effect to the purpose and intent
    of the Legislature as ascertained from the entire language
    of the statute considered in its plain, ordinary, and popular
    sense.16 It is not within the province of the courts to read a
    meaning into a statute that is not there or to read anything
    direct and plain out of a statute.17
    In withholding the requested information, NPPD relies
    upon § 84-712.05(3). That statute sets forth an exemption
    for “[t]rade secrets, academic and scientific research work
    which is in progress and unpublished, and other proprie-
    tary or commercial information which if released would give
    13
    See § 84-712.03(2).
    14
    State ex rel. Neb. Health Care Assn. v. Dept. of Health, 
    255 Neb. 784
    , 
    587 N.W.2d 100
    (1998). Cf. Evertson v. City of Kimball, supra note 10 (using
    clear and convincing burden of proof).
    15
    Farmers Co-op v. State, 
    296 Neb. 347
    , 
    893 N.W.2d 728
    (2017).
    16
    J.S. v. Grand Island Public Schools, 
    297 Neb. 347
    , 
    899 N.W.2d 893
          (2017).
    17
    In re Guardianship of Kaiser, 
    295 Neb. 532
    , 
    891 N.W.2d 84
    (2017).
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    advantage to business competitors and serve no public
    purpose.”18 The meaning of the latter part of the exemption is
    the crux of this appeal.
    [12] We must give effect to the statutory language.
    Grammatically, the key phrase contains two parts, following
    initial words common to both. The common words are “pro-
    prietary or commercial information which if released would.”19
    The two parts are “give advantage to business competitors”
    and “serve no public purpose.”20 Thus, the correct grammatical
    reading of the second part is “proprietary or commercial infor-
    mation which if released would . . . serve no public purpose.”
    The two parts are joined by “and.” The word “and” is “[a]
    conjunction connecting words or phrases expressing the idea
    that the latter is to be added or taken along with the first.”21
    Generally, if an exception is expressed in the conjunctive,
    both requirements must be met for the exception to become
    operative.22 Thus, NPPD had the burden to show both that the
    information would give advantage to competitors and that the
    information would serve no public purpose.
    [13] “A public purpose has for its objective the promo-
    tion of the public health, safety, morals, security, prosperity,
    contentment, and the general welfare of all the inhabitants.”23
    When we consider the meaning of the words “public purpose”
    in § 84-712.05(3), liberal public disclosure of the records
    of public entities is an important factor. The testimonies
    of Goss and the former NPPD employee articulated public
    18
    § 84-712.05(3).
    19
    
    Id. 20 Id.
    21
    Black’s Law Dictionary 86 (6th ed. 1990). See, also, State v. Melcher, 
    240 Neb. 592
    , 
    483 N.W.2d 540
    (1992).
    22
    See Dutton-Lainson Co. v. Continental Ins. Co., 
    271 Neb. 810
    , 
    716 N.W.2d 87
    (2006).
    23
    Platte Valley Public Power & Irrigation District v. County of Lincoln, 
    144 Neb. 584
    , 589, 
    14 N.W.2d 202
    , 205 (1944).
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    purposes of the information well within political and eco-
    nomic realms; indeed, one can scarcely escape the intense
    public debate regarding the merits of fossil fuels versus renew-
    able fuels.
    The Iowa Supreme Court’s interpretation and application
    of a similar statute illustrates its narrow reach. The Iowa stat-
    ute provides that “[r]eports to governmental agencies which,
    if released, would give advantage to competitors and serve
    no public purpose” shall be kept confidential.24 In constru-
    ing that statute, the Iowa Supreme Court has stated that the
    public body must prove both that the documents “would give
    advantage to . . . competitors and [that] their release would
    serve no public purpose.”25 The court recognized the com-
    peting policy interests—“the public’s right to know versus
    protecting an entity against a competitor.”26 But the court
    stated: “[I]t is not our responsibility to balance competing
    policy interests. This balancing is a legislative function and
    our role is simply to determine the legislature’s intent about
    those policy issues.”27
    Similarly, we conclude that the language of § 84-712.05(3)
    does not allow us to balance the competing interests.
    Information which would give a business competitor an advan-
    tage may be withheld only if it would “serve no public pur-
    pose.” There is no requirement that the public purpose to be
    served outweigh the competitive harm caused.
    We recognize that NPPD is not a typical governmental
    body. A public corporation organized for the purpose of gen-
    erating, transmitting, and distributing electrical energy oper-
    ates in a proprietary as distinguished from a governmental
    24
    Iowa Code Ann. § 22.7(6) (West Cum. Supp. 2017).
    25
    Northeast Council v. Dept. of Public Health, 
    513 N.W.2d 757
    , 760 (Iowa
    1994) (emphasis in original).
    26
    
    Id. at 761.
    27
    
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    capacity.28 The Legislature gave to public power districts the
    usual powers of corporation organized for public purposes,
    and statutes located in chapter 70, article 6, of the Nebraska
    Revised Statutes (concerning public power districts) are
    intended to permit the business of the district to be operated
    in a successful and profitable manner.29 From this general
    premise, the district court inferred legislative intent regarding a
    public power district’s records. But its inference finds no direct
    statutory support.
    The Legislature has not included in the lengthy statutes gov-
    erning public power districts any provision purporting to deny
    the public access to its books and records. Indeed, the statutes
    say otherwise. The board of directors of a public power dis-
    trict “shall cause to be kept accurate minutes of their meetings
    and accurate records and books of account,” which books and
    records shall be open to public inspection.30 Further, if a dis-
    trict wishes to acquire an existing system for electric light and
    power, hydrogen, or ethanol, a copy of the proposed contract
    must be open to public inspection for a period of time before
    being executed.31
    Two other public power district statutes bear upon the issue
    only tangentially. One requires an annual audit by a certified
    public accountant of “the books, records, and financial affairs
    of the district.”32 The other mandates that the accountant have
    “access to all books, records, vouchers, papers, contracts,
    or other data.”33 Neither statute limits public access to these
    28
    Wittler v. Baumgartner, 
    180 Neb. 446
    , 
    144 N.W.2d 62
    (1966), overruled
    in part on other grounds, State ex rel. Douglas v. Nebraska Mortgage
    Finance Fund, 
    204 Neb. 445
    , 
    283 N.W.2d 12
    (1979).
    29
    See York County Rural Public Power Dist. v. O’Connor, 
    172 Neb. 602
    ,
    
    111 N.W.2d 376
    (1961).
    30
    Neb. Rev. Stat. § 70-622 (Reissue 2009).
    31
    See Neb. Rev. Stat. § 70-626 (Reissue 2009).
    32
    Neb. Rev. Stat. § 70-623 (Cum. Supp. 2016).
    33
    Neb. Rev. Stat. § 70-623.02 (Reissue 2009).
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    ­ aterials. At most, the second statute effectively prohibits
    m
    a power district from contractually limiting its accountant’s
    access to the district’s records.
    If presented with the opportunity to exclude a public power
    district’s competitive information from public scrutiny, the
    Legislature might well do so. But thus far it has not. If the
    Legislature had done so, we would not hesitate to apply the
    “other statute” exception34 of the public records law and the
    general principle favoring a specific over a general statute.35
    NPPD failed to show that it was entitled to withhold the
    requested information. Although it demonstrated that releasing
    the information requested would give an advantage to its com-
    petitors, it failed to establish that the information would serve
    no public purpose. The law as framed required it to prove
    both elements. It is the role of the Legislature to balance and
    reconcile the public purposes embodied in the public records
    statutes and the public power statutes.
    CONCLUSION
    In order for NPPD to withhold its proprietary or commercial
    information, it had to show that the information “if released
    would give advantage to business competitors and serve no
    public purpose.”36 Construing this exemption narrowly, we
    conclude that NPPD failed to demonstrate by clear and con-
    clusive evidence that the information would serve no public
    purpose. We therefore reverse the district court’s order and
    remand the cause with direction to issue an appropriate writ in
    conformity with this opinion.
    R eversed and remanded with direction.
    Wright, J., not participating.
    34
    See § 84-712.01(1).
    35
    See, e.g., State v. Thompson, 
    294 Neb. 197
    , 
    881 N.W.2d 609
    (2016).
    36
    See § 84-712.05(3).