STATE OF NEBRASKA EX REL. MICHAEL UNGER, SHERIFF OF THE COUNTY OF STANTON, NEBRASKA, APPELLANT,
STATE OF NEBRASKA ET AL., APPELLEES
from the District Court for Lancaster County: ROBERT R. OTTE,
Valentino and Brandy Johnson for appellant.
J. Peterson, Attorney General, and Elizabeth A. Gregory for
C.J., WRIGHT, CONNOLLY, MILLER-LERMAN, CASSEL, and KELCH, JJ.
STACY, J., not participating.
Neb. 550] Connolly, J.
appeal presents the issue of whether a presentence report is
a public record. Michael Unger, the Stanton County Sheriff,
petitioned for a public records writ of mandamus compelling
the partial disclosure of an offender's presentence
report containing any statements made by Dillon Fales, a
victim of the offender's crime. Fales had sued Stanton
County, Nebraska, for damages arising from injuries
associated with the crime. Unger argued that the presentence
report was a public record and that Fales' statement
might be relevant to a contested issue in his civil suit. The
court dismissed Unger's petition because it determined
that presentence reports are privileged. We likewise conclude
that presentence reports are not public records because they
are privileged by statute. We therefore affirm.
Neb. 551] BACKGROUND
Irish's Criminal Case in Madison County District
2014, the State charged Bryant L. Irish with driving under
the influence of alcohol and causing serious bodily injury
under Neb. Rev. Stat. § 60-6,198 (Cum. Supp. 2014).
Section 60-6,198(1) provides: " Any person who, while
operating a motor vehicle in violation of section 60-6,196 or
60-6,197, proximately causes serious bodily injury to another
person or an unborn child of a pregnant woman shall be guilty
of a Class IIIA felony . . . ."
court, with District Judge Mark A. Johnson presiding,
convicted Irish after a bench trial. It found that Fales left
a party in a pickup truck driven by Irish. A Stanton County
deputy sheriff followed the pickup truck and activated the
overhead lights on the deputy's cruiser. Irish missed a
curve in the road and struck a culvert. Emergency responders
transported Fales to a hospital because he was unable to move
and had a head injury. The court determined that Irish
operated a motor vehicle while under the influence of alcohol
and that " such impairment by alcohol caused the motor
vehicle accident which, in turn, proximately caused the
serious bodily injury to his passenger . . . Fales." It
ordered the probation office to prepare a presentence report
for Irish's sentencing.
Irish's sentencing hearing, his attorney told the court
that he had talked with Fales and that Fales " indicated
to me that [he] could have been the one driving just as
well," that Fales and Irish " were both in the
wrong," and that they " s[aw] each other as
interchangeable in this case." Irish's attorney said
that Irish and Fales were " lifelong friends and remain
so through this." The court noted the comments by
Irish's attorney and said, " I will also take into
account that the victim in this case has indicated he does
not want [Irish] to go to jail but wants [him] to get
probation." The court sentenced Irish to 180 days in
jail and 60 months' probation.
Neb. 552] Tort Action in Madison County District
the court sentenced Irish, Fales sued Stanton County under
the Political Subdivisions Tort Claims Act. Fales alleged
that he was an innocent third party injured by the vehicular
pursuit of Irish by the Stanton County Sheriff.
answer to an interrogatory, Fales said that he completed a
" Victim Questionnaire" for use in Irish's
sentencing. In response to a request to produce any documents
he authored for Irish's criminal case, Fales answered:
" Do not have."
County sent a " Subpoena Duces Tecum and Public Records
Request" to Judge Johnson and the district probation
office. The subpoenas asked Judge Johnson and the probation
office to produce any victim questionnaire " included
within the presentence investigation report prepared in the
criminal matter of State v. Bryant Irish."
Johnson and the probation office moved to quash the
subpoenas. The record does not show the outcome of their
motion to quash. But Unger states in his brief that Stanton
County " withdrew" the subpoenas.
Action in Lancaster County District Court
2015, Unger filed a " Complaint/Petition for Public
Records Writ of Mandamus" in the Lancaster County
District Court. The respondents are the State of Nebraska,
Judge Johnson, the State of Nebraska's " District 7
Probation Office," and the State of Nebraska Office of
Probation Administration. Unger alleged that Fales submitted
a statement or questionnaire for use in Irish's
sentencing. Unger claimed that Fales' submission might be
relevant to whether Stanton County was liable to Fales in the
tort action pending in the Madison County District Court.
Neb. 553] Unger claimed that he was entitled to a writ of
mandamus under the public records statutes. The court
issued an alternative writ of mandamus which directed the
respondents to produce the questionnaire for the court's
in camera inspection. The court further ordered the
respondents to show cause why the questionnaire was not a
public record. The respondents did not file a responsive
show cause hearing, the court received several exhibits,
including the portion of Irish's presentence report
consisting of Fales' questionnaire. The court held the
questionnaire under seal. The respondents argued that
Irish's presentence report was not a public record
because a statute provides that presentence reports "
shall be privileged." 
court dismissed Unger's petition. It reasoned that
Fales' questionnaire was part of Irish's presentence
report and that presentence reports ...