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294 Nebraska Reports

STECKELBERG v. NEBRASKA STATE PATROL

Cite as 294 Neb. 842

Todd Steckelberg, appellant, v. 

Nebraska State Patrol, appellee.

___ N.W.2d ___

Filed September 23, 2016. No. S-15-879.

1. Mandamus: Judgments: Appeal and Error. An action for a writ of 

mandamus is a law action, and in an appellate review of a bench trial of 

a law action, a trial court’s finding has the effect of a jury verdict and 

will not be set aside unless clearly erroneous.

2. Estoppel: Equity: Appeal and Error. A claim of equitable estoppel 

rests in equity, and in an appeal of an equity action, an appellate court 

tries factual questions de novo on the record and reaches a conclusion 

independent of the findings of the trial court.

3. Estoppel: Words and Phrases. To mend one’s hold means that where a 

party has based his or her conduct upon certain reasons stated by him or 

her, he or she will not be permitted, after litigation has commenced, to 

assert other reasons for his or her conduct.

4. 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 requesting party satisfies its prima facie claim for release 

of public records, the public body opposing disclosure must show by 

clear and convincing evidence that Neb. Rev. Stat. § 84-712.05 (Reissue 

2014) or Neb. Rev. Stat. § 84-712.08 (Reissue 2014) exempts the 

records from disclosure.

5. Records: Appeal and Error. It is incumbent upon the appellant to present a record supporting the errors assigned.

6. ____: ____. The decision of a district court that is reviewing records 

in camera under the public records statutes to allow other persons to 

Nebraska Supreme Court Online Library

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

09/23/2016 08:09 AM CDT
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STECKELBERG v. NEBRASKA STATE PATROL

Cite as 294 Neb. 842

review said records is entrusted to the district court’s discretion, and is 

reviewed for an abuse of that discretion.

Appeal from the District Court for Lancaster County: Susan

I. Strong, Judge. Affirmed.

Joy Shiffermiller, of Shiffermiller Law Office, P.C., L.L.O., 

for appellant.

Douglas J. Peterson, Attorney General, and David A. Lopez 

for appellee.

Heavican, C.J., Wright, Miller-Lerman, Cassel, Kelch, 

and Funke, JJ.

Heavican, C.J.

INTRODUCTION

Todd Steckelberg filed a public records request under Neb. 

Rev. Stat. § 84-712 (Reissue 2014), seeking records relating 

to the interview and selection process for a job opening as 

an “Executive Protection Trooper” with the Nebraska State 

Patrol (State Patrol). Steckelberg’s request was denied, and he 

sought a writ of mandamus in the district court. Steckelberg’s 

petition for writ of mandamus was denied. He appealed, and 

we granted the State Patrol’s petition to bypass the Nebraska 

Court of Appeals. We affirm.

BACKGROUND

Steckelberg is employed by the State Patrol as a trooper. 

He was an applicant for a lateral transfer to the position of 

Executive Protection Trooper. Interviews were conducted on 

March 26, 2015. Another applicant was awarded the position.

On April 5, 2015, Steckelberg requested that he be permitted to review his score sheets and the comments and recommendations from the hiring board. That request was denied, 

with the State Patrol’s human resources division informing 

Steckelberg that the State Patrol would not provide feedback 

concerning interviews. That same day, Steckelberg inquired as 
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STECKELBERG v. NEBRASKA STATE PATROL

Cite as 294 Neb. 842

to why his own records were not provided to him. Steckelberg 

was again informed that there would be no feedback given 

regarding interviews, because such records were considered to 

be confidential.

On April 9, 2015, Steckelberg made, through counsel, a 

request under Nebraska’s public records laws for “any and 

all documents regarding the most recent interview for the 

Executive Protection Trooper position,” including “the completed a [sic] score sheet, which each member made notes 

and comments on, each recommendation and the Board’s 

recommendation to the Superintendent.” The State Patrol 

sent the listing for the open position but otherwise denied 

Steckelberg’s request, with the State Patrol referencing Neb. 

Rev. Stat. § 84-712.05(15) (Reissue 2014) as the basis for 

such denial.

On May 6, 2015, Steckelberg sought a writ of mandamus in 

the Lancaster County District Court, again under Nebraska’s 

public records laws, seeking the records that were the subject 

of his public records request. Trial on Steckelberg’s petition 

was held on August 14.

The trial court held for the State Patrol and denied 

Steckelberg’s petition for writ of mandamus. The trial court 

concluded that the records Steckelberg sought could be 

withheld under § 84-712.05(7), providing that the personal 

information of personnel could be withheld from examination. The court addressed and rejected Steckelberg’s argument that the State Patrol was not permitted to rely on 

§ 84-712.05(7) when its initial denial was purportedly premised on § 84-712.05(15), concluding that its review of the 

public records request was de novo under Neb. Rev. Stat. 

§ 84-712.03 (Reissue 2014).

Steckelberg appealed. The State Patrol filed a petition to 

bypass the Court of Appeals, which we granted.

ASSIGNMENTS OF ERROR

Steckelberg assigns, restated and consolidated, that the 

trial court erred in (1) allowing the State Patrol to rely on 
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Cite as 294 Neb. 842

a different exemption than that originally relied upon, (2) 

finding that Steckelberg had not met his burden of proof to 

show that the documents were public records, (3) finding the 

records were exempt under § 84-712.05(7) and accordingly 

denying his petition for writ of mandamus, and (4) not allowing Steckelberg to review the records that the court reviewed 

in camera.

STANDARD OF REVIEW

[1] An action for a writ of mandamus is a law action, and 

in an appellate review of a bench trial of a law action, a trial 

court’s finding has the effect of a jury verdict and will not be 

set aside unless clearly erroneous.1

[2] A claim of equitable estoppel rests in equity, and in 

an appeal of an equity action, an appellate court tries factual 

questions de novo on the record and reaches a conclusion independent of the findings of the trial court.2

ANALYSIS

On appeal, Steckelberg makes three basic arguments: (1) 

that the district court erred in allowing the State Patrol to rely 

on a different exception to the public records laws than that 

originally cited by the State Patrol when it denied Steckelberg’s 

request, (2) that the district court erred in finding that the 

records sought were exempted from disclosure, and (3) that the 

district court ought to have allowed him to inspect the records 

during the court’s in camera review.

Some background law is helpful. Section 84-712(1) provides 

that “all citizens of this state and all other persons interested 

in the examination of the public records as defined in section 

84-712.01 are hereby fully empowered and authorized” to 

examine such records. Neb. Rev. Stat. § 84-712.01(1) (Reissue 

2014) provides in part:

1 State ex rel. Neb. Health Care Assn. v. Dept. of Health, 255 Neb. 784, 587 

N.W.2d 100 (1998).

2 Id.
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Except when any other statute expressly provides that 

particular information or records shall not be made public, public records shall 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, bureau, commission, council, subunit, 

or committee of any of the foregoing.

Records “which may be withheld from the public” include 

18 separate categories.3 Section 84-712.03 allows a person who 

is denied “any rights granted by sections 84-712 to 84-712.03” 

to file suit. Section 84-712.03(2) provides, in part, that the 

court with jurisdiction “shall determine the matter de novo and 

the burden is on the public body to sustain its action.”

Before the district court, the State Patrol relied upon 

§ 84-712.05(7)—“[p]ersonal information in records regarding personnel of public bodies other than salaries and routine 

directory information”—to support the withholding of the 

records from Steckelberg. In initially denying Steckelberg’s 

request, however, the State Patrol relied on § 84-712.05(15), 

which provides that the following information may be 

withheld:

[j]ob application materials submitted by applicants, other 

than finalists, who have applied for employment by any 

public body as defined in section 84-1409. For purposes 

of this subdivision, (a) job application materials means 

employment applications, resumes, reference letters, and 

school transcripts and (b) finalist means any applicant (i) 

who reaches the final pool of applicants, numbering four 

or more, from which the successful applicant is to be 

selected, (ii) who is an original applicant when the final 

pool of applicants numbers less than four, or (iii) who is 

an original applicant and there are four or fewer original applicants.

3 § 84-712.05.
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Estoppel

Steckelberg first argues that the State Patrol should not 

be permitted to change its reliance under state law from 

§ 84-712.05(15) to § 84-712.05(7). In initially denying 

Steckelberg’s request, the State Patrol cited subsection (15). 

The State Patrol has since conceded that § 84-712.05(15) is 

inapplicable, but argues that the records are protected by subsection (7). Steckelberg argues that the State Patrol should not 

be allowed to “mend [its] hold” in this way.4

[3] We have little case law on the concept of mending one’s 

hold. But, generally, to mend one’s hold means that “where 

a party has based his conduct upon certain reasons stated by 

him, he will not be permitted, after litigation has commenced, 

to assert other reasons for his conduct.”5 The phrase comes 

from 19th-century wrestling parlance, where it meant to “get 

a better grip (hold) on your opponent.”6 Its origins in the law 

are traced to the U.S. Supreme Court’s opinion in Railway Co. 

v. McCarthy.

7

We noted this concept in Enterprise Co., Inc. v. Nettleton 

Business College.

8

 In that case, we observed that “[t]he principle prohibiting a party from mending his hold is ordinarily 

applicable only if some previous conduct on his part would 

render present assertion of the right unjust.”9

4 Brief for appellant at 27.

5 Hays v. Christiansen, 114 Neb. 764, 771, 20 N.W. 609, 612 (1926). See, 

also, Brown v. Security Mutual Life Ins. Co., 150 Neb. 811, 36 N.W.2d 

251 (1949); State, ex rel. Truax, v. Burrows, 136 Neb. 691, 287 N.W. 178 

(1939); McDowell v. Metropolitan Life Ins. Co., 129 Neb. 764, 263 N.W. 

145 (1935).

6 See Harbor Ins. Co. v. Continental Bank Corp., 922 F.2d 357, 362 (7th 

Cir. 1990).

7 Railway Co. v. McCarthy, 96 U.S. (6 Otto) 258, 24 L. Ed. 693 (1877).

8 Enterprise Co., Inc. v. Nettleton Business College, 186 Neb. 183, 181 

N.W.2d 846 (1970).

9 Id. at 189, 181 N.W.2d at 851.
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And we echoed this concept of prejudice in State ex rel. 

Neb. Health Care Assn. v. Dept. of Health.

10 There, we noted 

that “[t]he doctrine of equitable estoppel . . . will not be 

invoked against a governmental entity except under compelling circumstances where right and justice so demand; in such 

cases, the doctrine is to be applied with caution and only for 

the purpose of preventing manifest injustice.”11 We concluded 

the relator-appellant had not shown that it was prejudiced by 

the appellees’ delay in issuing their denial of access to certain documents.

We therefore examine this record for prejudice caused as a 

result of the State Patrol’s change in position. We find none. 

Steckelberg’s request for the records was denied within days 

of making of the request. Initially, § 84-712.05(15) was cited, 

but by the time the State Patrol filed its answer, it cited to 

subsection (7). There is nothing in the record to suggest that 

during the district court litigation of this matter, the State 

Patrol argued that records were exempted under subsection 

(15). This conclusion is reinforced by the district court’s correct observation that its review of the State Patrol’s denial was 

de novo.

Steckelberg’s first assignment of error is without merit.

Access to Records

Steckelberg next argues that the district court erred in finding that he did not meet his burden to show that the records 

were public records. The district court reasoned both that 

Steckelberg had not met his initial burden to show that the 

records in question were public records and that even if that 

burden had been met, the State Patrol had shown that the 

records were exempt under § 84-712.05(7).

[4] This is a mandamus action. 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 

10 State ex rel. Neb. Health Care Assn. v. Dept. of Health, supra note 1.

11 Id. at 796, 587 N.W.2d at 108.
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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. If the 

requesting party satisfies its prima facie claim for release of 

public records, the public body opposing disclosure must show 

by clear and convincing evidence that § 84-712.05 or Neb. 

Rev. Stat. § 84-712.08 (Reissue 2014) exempts the records 

from disclosure.12

We agree with Steckelberg insofar as he argues that the 

district court erred in finding that he had not met his initial 

burden. It is undisputed that Steckelberg is a citizen or otherwise interested party and that he has been denied access 

to the records sought. Steckelberg has also shown that the 

records sought were those belonging to the State Patrol, an 

agency of the State, and thus were public records as defined by 

§ 84-712.01. Indeed, the State Patrol concedes that Steckelberg 

has met his burden.

We turn next to the question of whether the State Patrol 

showed that the records fall within an exemption listed in 

§ 84-712.05.

Steckelberg argues that these records do not fit within 

§ 84-712.05(7) for two reasons: (1) The State Patrol’s own 

evidence shows that the records sought are not part of an 

employee’s personnel record, and (2) the records sought fit 

more neatly into § 84-712.05(15), which the State Patrol concedes is otherwise inapplicable.

Steckelberg’s first argument—that the State Patrol’s own 

evidence shows the records are not personnel records—misses 

the mark. The State Patrol did produce an affidavit stating that 

the records were not kept with an employee’s personnel record, 

but were kept separately by the State Patrol’s human resources 

division. But § 84-712.05(7) exempts “[p]ersonal information 

in records regarding personnel.” The district court found that 

12 Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009).
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the information in the records sought did contain personal 

information. And the information was about employees, otherwise known as personnel,13 of the State Patrol. There is no 

requirement in § 84-712.05(7) that in order to be exempt, the 

records must be kept within an employee’s personnel record, 

as used as a term of art; the records need only be personal 

information about personnel, defined as persons employed by 

an organization.14

[5] We also note that the records in question are not part 

of our appellate record, nor did either party request their 

inclusion in our record. It is incumbent upon the appellant 

to present a record supporting the errors assigned.15 To the 

extent Steckelberg suggests that the district court erred in its 

finding that the sought-after records contained personal information, we cannot reach that issue, because we do not have 

those records.

Steckelberg also argues that the records fit more squarely 

into § 84-712.05(15), which all agree is otherwise inapplicable 

on these facts. Steckelberg argues that records such as this are 

not open for examination where the applicants are not finalists, but are open when the applicants are finalists, as is the 

case here. Though not entirely specific, Steckelberg appears 

to be arguing that if § 84-712.05(7) is read broadly enough to 

exempt these materials, then there is no purpose behind the 

exemption provided by § 84-712.05(15).

This argument is without merit. Section 84-712.05(15) provides that “job application materials” of applicants, “other than 

finalists,” are exempt from examination. Job application materials are defined in subsection (15) as “employment applications, resumes, reference letters, and school transcripts.”

13 See Webster’s Third New International Dictionary of the English Language, 

Unabridged 1687 (1993).

14 See id.

15 See Roskop Dairy v. GEA Farm Tech., 292 Neb. 148, 871 N.W.2d 776 

(2015).
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It is conceded that Steckelberg was a finalist. But even 

if he had not been, he sought “the completed a [sic] score 

sheet, which each member made notes and comments on, 

each recommendation and the Board’s recommendation to the 

Superintendent.” These records are not “job application materials” as defined by § 84-712.05(15).

Section 84-712.05(7) does not infringe upon the exemption 

provided by § 84-712.05(15). As such, Steckelberg’s second 

argument and his second and third assignments of error are 

without merit.

In Camera Review

Finally, Steckelberg argues that he ought to have been 

permitted to inspect the records during the district court’s in 

camera review. Section 84-712.03(2) provides in relevant part 

that “[t]he court may view the records in controversy in camera 

before reaching a decision, and in the discretion of the court 

other persons, including the requester, counsel, and necessary 

expert witnesses, may be permitted to view the records, subject 

to necessary protective orders.”

[6] This decision, then, is entrusted to the discretion of the 

court. And we review for an abuse of that discretion. We cannot find an abuse of discretion in this case. There was nothing 

about the nature of these records that required any other person 

to be present to help the court decipher the meaning of the 

records in question. To allow Steckelberg to be present for this 

review would obviate the need for the underlying litigation.

There is no merit to Steckelberg’s final assignment of error.

CONCLUSION

The records Steckelberg seeks to view are exempted under 

§ 84-712.05(7). As such, the district court did not err in denying Steckelberg’s petition for writ of mandamus. The decision 

of the district court is affirmed.

Affirmed.

Stacy, J., not participating.