Aksamit Resource Management LLC et al., appellants.
Nebraska Public Power District, appellee.
Statutes: Appeal and Error. Statutory interpretation is a
question of law that an appellate court resolves
independently of the trial court.
Mandamus: Words and Phrases. Mandamus is a law action, and it
is an extraordinary remedy, not a writ of right.
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.
Mandamus. Whether to grant a writ of mandamus is within the
trial court's discretion.
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
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
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).
__ . 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).
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.
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.
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.
Statutes: Words and Phrases. Generally, if an exception is
expressed in the conjunctive, both requirements must be met
for the exception to become operative.
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.
from the District Court for Platte County: Robert R. Steinke,
Judge. Reversed and remanded with direction.
P. Cox, PC, L.L.O., and Peter S. Ratner, of Kellogg, Hansen,
Todd, Figel & Frederick, P.L.L.C, for appellants.
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
Public Power District (NPPD) refused a public records
request 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 ."
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.
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.
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.
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).
for Writ of Mandamus
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."
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 ...