Opinion

Huff v. Brown

  • 941 N.W.2d 515
  • 305 Neb. 648
Court
Nebraska Supreme Court
Filed
Apr 23, 2020
Status
Published
Cited by
1 cases
Authority
More cited than 46.4%

The opinion

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/17/2020 08:08 AM CDT

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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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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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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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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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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. 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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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