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David Leon Frederick, appellee, cross-appellee, and

cross-appellant, v. City of Falls City, a city and

political subdivision of the State of Nebraska, 

appellee and cross-appellant, and Falls City

Economic Development and Growth

Enterprise, Inc., appellant

and cross-appellee.

___ N.W.2d ___

Filed January 16, 2015. No. S-13-275.

1. Judgments: Statutes: Appeal and Error. Questions of law and statutory interpretation require an appellate court to reach a conclusion independent of the 

decision made by the court below.

2. Mandamus: Proof. A party seeking a writ of mandamus under Neb. Rev. Stat. 

§ 84-712.03 (Reissue 2008) has the burden to satisfy three elements: (1) that the 

requesting party is a citizen of the state or other person interested in the examination of the public records, (2) that the documents sought are public records as 

defined by Neb. Rev. Stat. § 84-712.01 (Reissue 2014), and (3) that the requesting party has been denied access to the public records as guaranteed by Neb. Rev. 

Stat. § 84-712 (Cum. Supp. 2012).

3. Administrative Law: Pretrial Procedure: Records. A four-part functional 

equivalency test is the appropriate analytical model for determining whether a 

private entity which has an ongoing relationship with a governmental entity can 

be considered an agency, branch, or department of such governmental entity 

within the meaning of Neb. Rev. Stat. § 84-712.01(1) (Reissue 2014), such that 

its records are subject to disclosure upon request under Nebraska’s public records 

laws. The factors to be considered in applying this test are (1) whether the 

private entity performs a governmental function, (2) the level of governmental 

funding of the private entity, (3) the extent of government involvement with or 

regulation of the private entity, and (4) whether the private entity was created by 

the government.

4. Pretrial Procedure: Evidence: Proof. In applying the functional equivalency 

test to determine whether a private entity is the equivalent of a public agency, 

branch, or department, it is not necessary that an entity strictly conform to 

each factor, but the factors should be considered and weighed on a case-bycase basis.

Appeal from the District Court for Richardson County: 

Daniel E. Bryan, Jr., Judge. Vacated and reversed, and 

remanded with directions.

Jerald L. Rauterkus and Bonnie M. Boryca, of Erickson & 

Sederstrom, P.C., L.L.O., for appellant.
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FREDERICK v. CITY OF FALLS CITY 865

Cite as 289 Neb. 864

Michael R. Dunn, of Halbert, Dunn & Halbert, L.L.C., for 

appellee City of Falls City.

Stephen D. Mossman, J.L. Spray, and Joshua E. Dethlefsen, 

of Mattson, Ricketts, Davies, Stewart & Calkins, for appellee 

David Leon Frederick.

David J.A. Bargen, of Rembolt Ludtke, L.L.P., for amicus 

curiae League of Nebraska Municipalities.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, 

Miller-Lerman, and Cassel, JJ.

Stephan, J.

The issue presented in this appeal is whether certain documents in the possession of a private corporation which has 

an ongoing contractual relationship with a city are “public 

records” within the meaning of Neb. Rev. Stat. §§ 84-712 

(Cum. Supp. 2012) and 84-712.01 (Reissue 2014). Falls City 

Economic Development and Growth Enterprise, Inc. (EDGE), 

a Nebraska nonprofit corporation, provides economic development services to the City of Falls City, Nebraska, and 

other entities. A Nebraska citizen asked EDGE to produce 

documents relating to a specific economic development project, and EDGE denied the request on the ground that the 

requested documents were not public records as defined by 

§ 84-712.01(1). The citizen then brought this action for a 

writ of mandamus pursuant to Neb. Rev. Stat. § 84-712.03 

(Reissue 2008) to compel production of the requested documents. Except for certain documents which it determined to be 

privileged, the district court granted the writ. EDGE appealed, 

and Falls City cross-appealed, aligning itself with EDGE. The 

citizen also cross-appealed, contending the district court erred 

in not requiring production of all of the requested documents. 

We vacate and reverse the writ of mandamus and the order 

awarding attorney fees, and remand the cause with directions to dismiss.
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I. BACKGROUND

1. Parties

David Leon Frederick is a Nebraska citizen and a resident 

of Richardson County, Nebraska. EDGE is a mutual benefit corporation incorporated under the Nebraska Nonprofit 

Corporation Act1 in 2006 by eight private individuals, none 

of whom are employed by Falls City. According to its articles 

of incorporation, EDGE was formed “[t]o operate as a nonprofit corporation for the purpose of encouraging economic 

development and growth and improving business conditions” 

in Falls City, Nebraska, and the surrounding area, and to 

“engage in any lawful activity permitted under the Nebraska 

Nonprofit Corporation Act.” EDGE employs an executive 

director and one part-time assistant. Neither are employees of 

Falls City.

EDGE is governed by a 21-member board of directors, 

which includes the mayor of Falls City and one member of 

the city council. The Falls City administrator is an ex-officio 

member of EDGE’s board. Each director is required to sign a 

confidentiality agreement which provides that he or she

shall keep confidential all information obtained as a result 

of the performance of duties as a Director of EDGE, 

including but not limited to all information obtained 

regarding the identity or characteristics of prospects, contracts, terms of any agreements, terms or existence of any 

proposals, financial matters, and the subject matter and 

contents of any Board or Committee meetings.

Directors do not have access to all information maintained by 

the corporation.

EDGE receives both public and private funding. During 

the first 9 months of 2012, it received $85,840.23 from Falls 

City, $20,000 from Richardson County, and $77,215 from private entities.

EDGE performs services for Falls City and Richardson 

County which include hosting, communicating with, and 

1 See Neb. Rev. Stat. §§ 21-1901 to 21-19,177 (Reissue 2012 & Cum. Supp. 

2014).
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FREDERICK v. CITY OF FALLS CITY 867

Cite as 289 Neb. 864

negotiating with business development prospects; encouraging development activities of existing and new businesses; 

and promoting the image of the city and county regionally 

and nationally. EDGE also performs services that benefit 

its private investors, such as workforce training workshops, 

hosting business prospects, and arranging meetings between 

investors and business prospects and leaders from other 

communities.

EDGE and Falls City have entered into various agreements, 

including a memorandum of understanding dated December 

19, 2011. This document recites that Falls City and EDGE 

“desire to work together to implement an aggressive, targeted 

approach to creating a positive image of Falls City and marketing the community as a preferred business location that will 

generate new wealth and create quality employment opportunities.” This document defines the relationship between Falls 

City and EDGE as serving

the purpose of undertaking the planning and implementation of the City’s economic development marketing 

and new business development recruitment, the retention 

and expansion of existing businesses and entrepreneurial development as well as other economic development 

services designed to strengthen the competitiveness of 

the business climate and expand economic development 

in the City.

The memorandum of understanding specifies the services 

which EDGE agreed to provide in furtherance of this objective and is revocable by either party giving 60 days’ written notice.

EDGE maintains a separate Web site which can be accessed 

through a link on the Falls City Web site. It retains its own 

accountant for preparation of payroll, taxes, and financial statements. EDGE’s offices are in a building located in Falls City 

which is not part of any municipal or governmental building. 

In addition to its activities within Falls City, EDGE has been 

involved with economic development projects outside the city 

limits, including the Missouri River bridge at Rulo, Nebraska, 

and a wind farm.
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868 289 NEBRASKA REPORTS

2. CGB Development Project

CGB Enterprises, Inc. (CGB), a national grain processing 

and transportation company, contacted EDGE in April 2012 

regarding the proposed development of a large grain terminal 

and transportation facility on a site in Richardson County, 

Nebraska. This site is located near an existing grain elevator 

co-owned by Frederick.

According to EDGE’s executive director, EDGE’s investors 

supported the development and encouraged EDGE to “provide 

assistance to CGB as much as possible.” This included serving 

as a liaison between CGB and various local, state, and private 

business entities. EDGE signed a confidentiality agreement 

with CGB to protect “confidential and proprietary information” 

with respect to the project.

3. Public Records Requests

On August 29, 2012, Frederick sent a public records request 

to the Falls City administrator. The request sought records 

in the physical custody of Falls City and EDGE relating to 

CGB. The administrator responded with a letter providing 

the requested documents which were in the physical custody 

of Falls City. He also sent a copy of his letter and the public 

records request to EDGE’s executive director. On September 7, 

EDGE’s president told the Falls City administrator that EDGE 

had already declined a similar public records request which 

it had received directly. On September 24, Falls City asked 

EDGE to provide the city with all public records concerning 

the CGB project which were the subject of the request. EDGE 

denied this request on the basis that it was not a public entity 

and that its records were not public records.

4. Mandamus Proceeding

Frederick subsequently filed a verified complaint and 

motion for a writ of mandamus, naming only Falls City as the 

respondent. The court issued an alternative writ of mandamus 

directing Falls City to either produce the requested records or 

file an answer to the verified complaint and show cause why 

it did not produce them. Falls City filed an answer in which 

it denied that records in the possession of EDGE were public 
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FREDERICK v. CITY OF FALLS CITY 869

Cite as 289 Neb. 864

records and alleged that it did not have access to such records. 

Falls City further alleged that it had produced all requested 

records which were in its possession and that Frederick had 

failed to join EDGE as a necessary party.

After conducting an evidentiary hearing, the district court 

found that Falls City had delegated its economic development 

goals to EDGE and that therefore, the requested records in the 

possession of EDGE were public records subject to disclosure. The court also determined that EDGE was a necessary 

party to the mandamus proceeding and ordered that EDGE be 

joined as a party and be given an opportunity to appear and 

“show cause why [it] should not be held in contempt.” The 

court stated that no further evidence would be received from 

Falls City and that the requested records “are public records 

and should be disclosed to [Frederick], subject to [EDGE’s] 

opportunity to show cause why they are exempt from public disclosure.”

Frederick filed an amended verified complaint joining 

EDGE as a party, and the court issued an alternative writ to 

Falls City and EDGE. EDGE filed an answer asserting several 

defenses, including (1) that the requested documents were not 

public records and (2) that they were exempt from disclosure under Neb. Rev. Stat. § 84-712.05 (Cum. Supp. 2012). 

EDGE also alleged that “its economic development activities 

do not constitute a government function” and that “there has 

been no delegation of a government function to EDGE by 

[Falls City].”

After conducting another evidentiary hearing, the district 

court entered an order determining the documents at issue 

were public records subject to disclosure. Applying the test 

utilized by this court in Evertson v. City of Kimball,

2

 the court 

determined that Falls City had delegated its “economic development goals” to EDGE, that EDGE had prepared the records 

under this delegation of authority, that the City was entitled to 

possess the materials to monitor the performance of EDGE, 

and that the records were used to make a decision affecting 

the public interest. Based upon its in camera review, the court 

2 Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009).
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870 289 NEBRASKA REPORTS

determined that some of the requested records were exempt 

from disclosure pursuant to § 84-712.05(3) and (4) or the 

attorney-client privilege.

In a subsequent order entered on March 6, 2013, the district court ordered Falls City and EDGE, jointly and severally, 

to pay Frederick’s attorney fees and costs in the amount of 

$17,109.59, pursuant to Neb. Rev. Stat. § 84-712.07 (Reissue 

2014). The court also stayed the issuance of a writ of mandamus pending appeal, conditioned upon the filing of a supersedeas bond, which was subsequently filed. EDGE perfected this 

timely appeal. We moved the appeal to our docket on our own 

motion pursuant to our statutory authority to regulate the caseloads of the appellate courts of this state.3

II. ASSIGNMENTS OF ERROR

EDGE assigns, restated, that the district court erred in (1) 

holding that its records are public records subject to disclosure pursuant to § 84-712 and (2) holding EDGE jointly and 

severally liable for attorney fees and costs in the amount 

of $17,109.59.

On cross-appeal, Falls City assigns, restated and consolidated, that the district court erred in finding (1) that there was 

a clear duty existing on the part of Falls City to provide the 

records of EDGE; (2) that Falls City, through a delegation 

of authority to perform a governmental function, contracted 

with a private party to carry out a governmental function; (3) 

that EDGE prepared records under Falls City’s delegation of 

authority; (4) that Falls City was entitled to possess the materials to monitor EDGE’s performance; (5) that the records of 

EDGE are used by Falls City to make a decision affecting 

public interest; and (6) that Falls City was jointly and severally 

liable for attorney fees and costs in the amount of $17,109.59. 

Falls City also assigns error to the district court’s initial determination that the records in question were public records, 

because EDGE had not been made a party to the case at the 

time of that determination.

3 See Neb. Rev. Stat. § 24-1106(2) (Reissue 2008).
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FREDERICK v. CITY OF FALLS CITY 871

Cite as 289 Neb. 864

On cross-appeal, Frederick assigns, restated and consolidated, that the district court erred by finding EDGE did not 

waive the statutory disclosure exemptions by failing to follow the procedures set forth in Neb. Rev. Stat. § 84-712.04 

(Reissue 2014).

III. STANDARD OF REVIEW

[1] Questions of law and statutory interpretation require an 

appellate court to reach a conclusion independent of the decision made by the court below.4

IV. ANALYSIS

1. Legal Principles

[2] This case involves a citizen’s statutory right, as articulated in § 84-712(1), to examine public records. In seeking 

a writ of mandamus to enforce this right under § 84-712.03, 

Frederick had the burden to satisfy three elements: (1) that he 

is a citizen of the state or other person interested in the examination of the public records, (2) that the documents sought 

are public records as defined by § 84-712.01, and (3) that he 

has been denied access to the public records as guaranteed by 

§ 84-712.5

The disputed issue in this case involves the second element, 

i.e., whether the records Frederick requested from EDGE are 

“public records” as defined by § 84-712.01(1). According to 

that statute, public records are “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.”6 The fact that the requested documents 

are in the possession of a private entity is not determinative. We held in Evertson that the phrase “of or belonging 

4 Davis v. Davis, 275 Neb. 944, 750 N.W.2d 696 (2008).

5 See, Evertson, supra note 2; State ex rel. Neb. Health Care Assn. v. Dept. 

of Health, 255 Neb. 784, 587 N.W.2d 100 (1998).

6 § 84-712.01(1).
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872 289 NEBRASKA REPORTS

to” in § 84-712.01(1) should be construed liberally to include 

documents or records that a public body is entitled to possess, 

regardless of whether the public body actually has possession of the documents.7

 We reasoned that the public’s right 

of access should not depend on where the records are physically located.

But we also recognized in Evertson that public records laws 

should not permit scrutiny of all of a private party’s records 

simply because it contracts with a government entity to provide services.8

 In Evertson, a city’s mayor commissioned an 

investigation in response to complaints of racial profiling by a 

city police officer. The mayor retained a private attorney from 

another state who hired a private investigative firm to assist 

him. Based on a verbal report of the results of the investigation, the city terminated the police officer’s employment. Two 

citizens sought disclosure of a written report in the possession of the investigative firm, and a district court held that the 

document was a public record which must be disclosed, even 

though the city never physically possessed it.

On appeal, we examined case law from other jurisdictions addressing when documents in the possession of a private party constitute public records. We recognized that many 

courts have adopted functional equivalency tests which focus 

on whether the documents are in the possession of a “hybrid 

public/private entity: an entity created by, funded by, and regulated by the public body.”9

 We noted that such tests “appear 

appropriate when a private entity performs an ongoing government function.”10 But recognizing that the facts in Evertson

did not involve an ongoing relationship between the city and 

the private entity, we observed that a functional equivalency 

test would not be appropriate because “requiring citizens to 

show that a private party functions as a hybrid government 

entity creates a loophole that would often allow public bodies 

7 Evertson, supra note 2.

8 Id.

9 Id. at 11, 767 N.W.2d at 761.

10 Id.
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FREDERICK v. CITY OF FALLS CITY 873

Cite as 289 Neb. 864

to evade public records laws.”11 So instead of utilizing a functional equivalency test in Evertson, we fashioned a test adapted 

from Ohio law12 and held that requested materials in a private 

party’s possession are public records if: (1) The public body, 

through a delegation of its authority to perform a government 

function, contracted with a private party to carry out the government function; (2) the private party prepared the records 

under the public body’s delegation of authority; (3) the public 

body was entitled to possess the materials to monitor the private party’s performance; and (4) the records are used to make 

a decision affecting public interest.13

Evertson involved a document prepared in the course of a 

single investigation which the city contracted with a private 

entity to perform, and the test we applied focused on the 

requested document. But in this case, Frederick sought multiple 

documents prepared over a period of time by an entity which 

had an ongoing relationship with Falls City. He argues all of 

the documents in the possession of EDGE relating to the CGB 

project are public records because EDGE is a hybrid public/

private entity in that it functions as the economic development 

“agency,” “branch,” or “department” of Falls City within the 

meaning of § 84-712.01(1). As we noted in Evertson, in similar 

factual circumstances where there is an ongoing relationship 

between the public body and the private entity, other courts 

have applied a functional equivalency test.

Courts in Connecticut, Tennessee, Ohio, Oregon, and Maine 

utilize a similar test to determine whether a private entity is 

the functional equivalent of a public or governmental agency 

within the meaning of the public records laws of those states.14

11 Id.

12 See State ex rel. v. Krings, 93 Ohio St. 3d 654, 758 N.E.2d 1135 (2001).

13 Evertson, supra note 2.

14 State ex rel. Oriana House v. Montgomery, 110 Ohio St. 3d 456, 854 

N.E.2d 193 (2006); Dow v. CCCI, 884 A.2d 667 (Me. 2005); Memphis 

Publishing v. Cherokee Children, 87 S.W.3d 67 (Tenn. 2002); Marks v. 

McKenzie High School Fact-Finding Team, 319 Or. 451, 878 P.2d 417 

(1994); Connecticut Humane Soc. v. FOIC, 218 Conn. 757, 591 A.2d 395 

(1991).
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As originally formulated by the Supreme Court of Connecticut, 

the functional equivalency test considers (1) whether the private entity performs a governmental function, (2) the level of 

government funding, (3) the extent of government involvement 

or regulation, and (4) whether the private entity was created by 

the government.15 This test is applied on a case-by-case basis, 

with no single factor being dispositive.16 Whether an entity 

meets the statutory definition of a public or governmental 

agency under a functional equivalency test presents a question 

of law.17

[3] We conclude that the four-part functional equivalency 

approach is the appropriate analytical model for determining 

whether a private entity which has an ongoing relationship 

with a governmental entity can be considered an agency, 

branch, or department of such governmental entity within the 

meaning of § 84-712.01(1), such that its records are subject 

to disclosure upon request under Nebraska’s public records 

laws. The Evertson test is better suited to documents prepared 

in the course of an isolated transaction between a public body 

and a private entity. Utilizing separate tests, depending upon 

whether the entity’s relationship with government is ongoing as in this case or limited to a single transaction as in 

Evertson, is consistent with the statutory directive that our 

public records law be “liberally construed” so that citizens 

“shall have the full right to know of and have full access to 

information on the public finances of the government and the 

public bodies and entities created to serve them.”18 We also 

note that Ohio, the state from which we adopted the Evertson

test, applies a functional equivalency test in circumstances 

involving ongoing relationships between public bodies and 

private entities.19

15 Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 

436 A.2d 266 (1980).

16 State ex rel. Oriana House, supra note 14; Memphis Publishing, supra

note 14; Marks, supra note 14; Connecticut Humane Soc., supra note 14.

17 Connecticut Humane Soc., supra note 14.

18 § 84-712.01(3).

19 State ex rel. Oriana House, supra note 14.
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FREDERICK v. CITY OF FALLS CITY 875

Cite as 289 Neb. 864

2. Application to Facts

(a) Governmental Function

The first factor to be considered in determining whether 

EDGE is the functional equivalent of a city agency, branch, 

or department is whether it performs a governmental function. The function at issue here is the promotion of economic 

development. A Nebraska statute, now codified at Neb. Rev. 

Stat. § 13-315 (Reissue 2012), authorizes counties, cities, and 

villages to expend public funds “for the purpose of encouraging immigration, new industries, and investment” and to 

conduct and carry out a “publicity campaign” for the purposes 

of “exploiting and advertising the various agricultural, horticultural, manufacturing, commercial, and other resources” of 

the county, city, or village. The statute caps this expenditure at 

“four-tenths of one percent of the taxable valuation of the city, 

village, or county” and further provides that such sum

may be expended directly by the city, village, or county 

or may be paid to the chamber of commerce or other 

commercial organization . . . or local development corporation to be expended for the purposes enumerated in 

this section under the direction of the board of directors 

of the organization.20

This court upheld the constitutionality of a prior codification of these statutory provisions in Chase v. County of 

Douglas,

21 reasoning that “municipal publicity and the general 

encouragement of growth and industry [are] public purposes” 

which “may be accomplished by expending the funds through 

the private organizations specified in the statute.” Based on 

§ 13-315 and our decision in Chase, the Nebraska Court of 

Appeals held that a city’s allocation of funds to a chamber of 

commerce, which in turn transferred the funds to a museum 

foundation, fell “within the public purpose of the general 

encouragement of growth and industry.”22

20 § 13-315.

21 Chase v. County of Douglas, 195 Neb. 838, 846, 241 N.W.2d 334, 339 

(1976).

22 Kalkowski v. Nebraska Nat. Trails Museum Found., 20 Neb. App. 541, 

552, 826 N.W.2d 589, 598 (2013).
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From this authority, we conclude that promoting economic 

development is a governmental function. But it is permissive, 

not mandatory. We find no provision of law requiring a city to 

engage in promotion of economic development, either directly 

through its own employees or indirectly through an expenditure of public funds to a private entity such as a chamber of 

commerce or development corporation.

(b) Level of Government Funding

EDGE receives approximately 63 percent of its revenue 

from public sources, including Falls City and Richardson 

County, with the remainder coming from private sources. In 

Dow v. CCCI,

23 the Maine Supreme Court held that receipt 

by a private development corporation of at least 60 percent 

of its annual revenue from a city did not support a conclusion that it was the functional equivalent of a city agency. 

But in State v. Beaver Dam Area Development Corp.,

24 the 

Wisconsin Supreme Court considered the fact that a development corporation was “almost entirely taxpayer funded” to be 

a significant factor in its determination that the entity was a 

“quasi-governmental corporation” subject to state open meetings and public records statutes.

(c) Extent of Government Involvement 

or Regulation

The statute which permits a city to expend funds to a private entity engaged in economic development does not require 

the city to retain control over the specific expenditure of such 

funds by the entity.25 To the contrary, it provides that such 

funds are “to be expended for the purposes enumerated in this 

section under the direction of the board of the organization.”26

Of the 21 voting members of EDGE’s board of directors, 

two are city officials. The city administrator is an ex-officio 

23 Dow, supra note 14.

24 State v. Beaver Dam Area Development Corp., 312 Wis. 2d 84, 110, 752 

N.W.2d 295, 308 (2008).

25 § 13-315.

26 Id.
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member with no voting powers. All three Falls City representatives on the board are subject to confidentiality agreements. 

Thus, the city has representation on EDGE’s board of directors, 

but not control.27 EDGE’s employees are not employed by Falls 

City. EDGE maintains its financial records separately from 

Falls City, and does not occupy city offices.

In contrast, in Meri-Weather v. Freedom of Info. Com’n,

28

a nonprofit economic development corporation formed by a 

city agency was determined to be subject to the control of the 

city for purposes of the functional equivalency test. There, the 

city agency appointed a majority of the corporation’s board of 

directors, employed its executive director, and maintained its 

financial records.

(d) Creation of Entity

EDGE was incorporated by several private individuals, none 

of whom were employed by Falls City. In this sense, it is dissimilar to the entity determined to be the functional equivalent 

of the city in Meri-Weather, and similar to the chamber of 

commerce which the Maine Supreme Court held in Dow29 was 

not the functional equivalent of the city.

(e) Resolution

[4] We agree with other courts that in applying the functional equivalency test to determine whether a private entity 

is the equivalent of a public agency, branch, or department, 

it is not necessary that an entity strictly conform to each 

factor, but the factors should be considered and weighed on 

a case-by-case basis.30 Here, the strongest factor supporting 

Frederick’s argument that EDGE is the functional equivalent of a city agency, branch, or department is the fact that 

it performs a governmental function, i.e., the promotion of 

economic development. But as we have noted, a city does not 

27 See Dow, supra note 14.

28 Meri-Weather v. Freedom of Info. Com’n, 47 Conn. Supp. 113, 778 A.2d 

1038 (Conn. Super. 2000).

29 See Dow, supra note 14.

30 See cases cited supra note 16.
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have a duty or responsibility to promote economic development, it simply has the authority to do so if it chooses. And 

unlike essential governmental functions such as building and 

maintaining streets and highways and providing for public 

health and safety, private entities are free to engage in economic development activities without any involvement of 

public bodies. Indeed, private entities have their own distinct 

interests in economic development. As the court noted in 

Dow, “Chambers of Commerce are traditionally nongovernmental entities that are in the business of promoting economic 

development,”31 and while it may be in the interest of a city 

to promote economic development, it is also in the interest 

of chamber of commerce members who have no relationship 

to the city.

The fact that EDGE receives 63 percent of its funding from 

public sources lends some support to Frederick’s argument that 

it is the equivalent of a public agency, branch, or department. 

But we agree with the observation of the Maine Supreme Court 

in Dow that the fact that a private entity received substantial 

financial support from public entities is not by itself sufficient 

to render it a public agency, because if that were so, “any 

private organization that received grant money, for example, 

could arguably be deemed a public agency.”32

The remaining factors lend no support to a determination that EDGE is the functional equivalent of a city agency, 

branch, or department. EDGE was formed by private parties. 

Its employees are not Falls City employees, its offices are not 

housed in city buildings, and its financial and other records 

are kept separately from those of Falls City. The city does not 

control EDGE’s board.

Weighing the various factors, we conclude as a matter of 

law that EDGE is not the functional equivalent of an agency, 

branch, or department of Falls City and that therefore, EDGE’s 

records requested by Frederick are not “public records” as 

defined by § 84-712.01(1). Because of this determination, 

we do not reach EDGE’s assignment of error with respect 

31 Dow, supra note 14, 884 A.2d at 671.

32 Id.
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to attorney fees or the issues raised in the cross-appeals of 

Frederick and Falls City. An appellate court is not obligated 

to engage in an analysis that is not necessary to adjudicate the 

case and controversy before it.33

V. CONCLUSION

For the foregoing reasons, we vacate and reverse the writ of 

mandamus and the order awarding attorney fees to Frederick, 

and we remand the cause to the district court with directions 

to dismiss.

 Vacated and reversed, and

remanded with directions.

33 Conroy v. Keith Cty. Bd. of Equal., 288 Neb. 196, 846 N.W.2d 634 (2014); 

Holdsworth v. Greenwood Farmers Co-op, 286 Neb. 49, 835 N.W.2d 30 

(2013).

Bradly Brothers, appellant, v. Kimball County

Hospital, doing business as Kimball Health

Services, et al., appellees.

___ N.W.2d ___

Filed January 16, 2015. No. S-13-725.

1. Motions to Dismiss: Appeal and Error. A district court’s grant of a motion to 

dismiss is reviewed de novo.

2. Motions to Dismiss: Pleadings: Appeal and Error. When reviewing an order 

dismissing a complaint, the appellate court accepts as true all facts which are 

well pled and the proper and reasonable inferences of law and fact which may be 

drawn therefrom, but not the plaintiff’s conclusion.

3. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an 

appellate court views the evidence in the light most favorable to the party against 

whom the judgment was granted, and gives that party the benefit of all reasonable 

inferences deducible from the evidence.

4. ____: ____. An appellate court will affirm a lower court’s grant of summary 

judgment if the pleadings and admitted evidence show that there is no genuine 

issue as to any material facts or as to the ultimate inferences that may be drawn 

from the facts and that the moving party is entitled to judgment as a matter 

of law.

5. Statutes: Appeal and Error. Statutory interpretation presents a question of law, 

for which an appellate court has an obligation to reach an independent conclusion 

irrespective of the determination made by the court below.