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Aksamit Resource Management LLC v. Nebraska Public Power District

Supreme Court of Nebraska

February 23, 2018

Aksamit Resource Management LLC et al., appellants.
Nebraska Public Power District, appellee.

         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 appellate 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 conclusive evidence, that the public record at issue is exempt from the [299 Neb. 115] 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 interpretation 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 promotion of the public health, safety, morals, security, prosperity, contentment, 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, PC, 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, Kelch, and Funke, JJ.

          Cassel, J.


         Nebraska Public Power District (NPPD) refused a public records request[1] from potential competitors for documents [299 Neb. 116] showing cost and revenue information for each of its generation 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 business 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.



         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 generates heat from fossil fuel; steam nuclear generation, which generates heat from nuclear fission; combined cycle and combustion turbine generation, which generates heat from the combustion of natural gas; hydro facilities, which generate power from water; diesel facilities, which use diesel engines to produce electricity; and wind facilities, where the mode of force for the generator is wind.

         [299 Neb. 117] Requests for Public Records and Response 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 revenues 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 Mandamus

         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 showing cause why it declined to provide access to the records. In an answer, NPPD maintained that the ...

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