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Aksamit Resource Management LLC et al., ap

v. Nebraska Public Power District, a

___ 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 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 

Nebraska Supreme Court Online Library

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

03/02/2018 08:12 AM CST
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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 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 directio

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

Funke, JJ

Cassel, J

INTRODUCTION

Nebraska Public Power District (NPPD) refused a public 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 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.

BACKGROUND

Partie

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.

2 § 84-712.05(3) (emphasis supplied).
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Requests for Public 

and Respo

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 

of Manda

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 requested documents fell 

within the exemption in § 84-712.05(3).

Tri

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 marketing 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 competitiveness 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 trajectory 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 revenues 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 businesses, 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 economic 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 property 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 difficult to judge whether NPPD was being run efficiently without looking at the cost and revenue information broken down 

by generation units.
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A former NPPD employee testified that he observed business 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 generation 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 contributors 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 “create bid and offer strategies that would put NPPD at a disadvantage 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 typically 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 proprietary and confidential.

District Court’s Dec

The district court dismissed the petition for writ of mandamus. 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 publicly, 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 information that would give advantage to business competitors, 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 unitspecific cost and revenue information would give advantage 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 evidence. It stated:

To require disclosure of NPPD’s generation unitspecific cost and revenue information would give advantage to its business competitors, and result in disadvantage 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 public 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 verdict, 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 Id.
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ANALYSIS

Public 

[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 “whenever 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 narrowly construe statutory exemptions shielding public records 

from disclosure.10

Burdens of Pro

Writ of Mand

[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 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 

§ 84-712.12 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 Id.
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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 requirement under one of the exceptions provided by § 84-712.05 or 

§ 84-712.08.14

Statutory Interpreta

of § 84-712.05(3

[9-11] Principles regarding statutory interpretation are well 

known. 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.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 proprietary 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 “proprietary 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 information 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 promotion 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 economic realms; indeed, one can scarcely escape the intense 

public debate regarding the merits of fossil fuels versus renewable fuels.

The Iowa Supreme Court’s interpretation and application 

of a similar statute illustrates its narrow reach. The Iowa statute 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 construing 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 competing 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 advantage may be withheld only if it would “serve no public purpose.” 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 generating, transmitting, and distributing electrical energy operates 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 Id.
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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 governing 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 district “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 district 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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materials. At most, the second statute effectively prohibits 

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 competitors, 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 conclusive 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.

Reversed and remanded with direc

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).