- 780 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE EX REL. BH MEDIA GROUP v. FRAKES

Cite as 305 Neb. 780

State of Nebraska ex rel. BH Media Group, Inc., 

doing business as Omaha World-Herald, appellee 

and cross-appellant, v. Scott Frakes, in his 

official capacity as director of the Nebraska 

Department of Correctional Services, 

appellant and cross-appellee.

State of Nebraska ex rel. Lee Enterprises, Inc., 

doing business as Lincoln Journal Star, appellee 

and cross-appellant, v. Scott Frakes, in his 

official capacity as director of the Nebraska 

Department of Correctional Services, 

appellant and cross-appellee.

State of Nebraska ex rel. Amy A. Miller and 

ACLU of Nebraska Foundation, appellees 

and cross-appellants, v. Scott Frakes, in his 

official capacity as director of the Nebraska 

Department of Correctional Services, 

appellant and cross-appellee.

___ N.W.2d ___

Filed May 15, 2020. Nos. S-18-604 through S-18-606, 

S-19-027 through S-19-029.

1. Mandamus: Words and Phrases. Mandamus is a law action, and it is 

an extraordinary remedy, not a writ of right.

2. 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.

3. Mandamus. Whether to grant a writ of mandamus is within the trial 

court’s discretion.

Nebraska Supreme Court Online Library

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

06/19/2020 09:08 AM CDT
- 781 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE EX REL. BH MEDIA GROUP v. FRAKES

Cite as 305 Neb. 780

4. Statutes: Appeal and Error. Statutory interpretation is a question of 

law that an appellate court resolves independently of the trial court.

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. Records: Proof. If the requesting party satisfies its prima facie claim 

for release of public records, the public body opposing disclosure must 

show by clear and conclusive evidence that Neb. Rev. Stat. § 84-712.05 

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

the records from disclosure.

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. Records: Words and Phrases. Disclosure, within the meaning of the 

public records statutes, refers to the exposure of documents to public view.

13. Pleadings: Time: Appeal and Error. When any terminating motion 

such as a motion to alter or amend is timely filed, a notice of appeal 

filed before the court announces its decision upon the terminating 

motion shall have no effect, whether filed before or after the timely filing of the terminating motion.
- 782 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE EX REL. BH MEDIA GROUP v. FRAKES

Cite as 305 Neb. 780

14. Attorney Fees: Appeal and Error. On appeal, a trial court’s decision awarding or denying attorney fees will be upheld absent an abuse 

of discretion.

15. Administrative Law: Records. The withholding of an entire document 

by an agency is not justifiable simply because some of the material 

therein is subject to an exemption.

Appeals from the District Court for Lancaster County: Jodi 

L. Nelson, Judge. Appeals in Nos. S-18-604 through S-18-606 

dismissed. Judgments in Nos. S-19-027 through S-19-029 

affirmed in part, and in part reversed and remanded with 

directions.

Douglas J. Peterson, Attorney General, and Ryan S. Post for 

appellant.

Shawn D. Renner, of Cline, Williams, Wright, Johnson & 

Oldfather, L.L.P., for appellees BH Media Group, Inc., and Lee 

Enterprises, Inc.

Christopher Eickholt, of Eickholt Law, L.L.C., for appellees 

Amy A. Miller and ACLU of Nebraska Foundation.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Freudenberg, JJ., and Moore, Judge.

Funke, J.

Scott Frakes, director of the Nebraska Department of 

Correctional Services (DCS), appeals from writs of mandamus ordering the disclosure, pursuant to the Nebraska public records statutes, see Neb. Rev. Stat. §§ 84-712 through 

84-712.09 (Reissue 2014, Cum. Supp. 2018 & Supp. 2019), of 

records related to DCS’ efforts to acquire lethal injection drugs. 

Frakes contends that the records are not subject to the public 

records statutes and that the district court erred in determining 

that he failed to prove that the records should not be disclosed. 

Because Frakes’ contentions contradict the text of Nebraska’s 

public records statutes and are adverse to this court’s public 

records precedent, we find that his appeal is without merit.
- 783 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE EX REL. BH MEDIA GROUP v. FRAKES

Cite as 305 Neb. 780

Relators have cross-appealed, arguing that the court erred 

in not ordering the redaction of confidential portions of otherwise public records and compelling the release of the redacted 

documents. As a matter of first impression, we agree with 

relators.

We therefore affirm in part, and in part reverse and remand 

with directions in cases Nos. S-19-027 through S-19-029. We 

dismiss the appeals in cases Nos. S-18-604 through S-18-606.

BACKGROUND

This matter concerns three cases consolidated for purposes of 

trial and appeal. The relators are BH Media Group, Inc., doing 

business as Omaha World-Herald (OWH); Lee Enterprises, 

Inc., doing business as Lincoln Journal Star (LJS); and Amy 

A. Miller and ACLU of Nebraska Foundation. In October and 

November 2017, each relator submitted public records requests 

pursuant to the public records statutes, seeking information 

related to DCS’ purchase of pharmaceuticals for use in the 

lethal injection execution protocol. DCS provided responsive 

documents to each request, and it informed relators that it 

had additional responsive documents in its possession that 

would be withheld from disclosure. DCS stated that the withheld records consist of (1) communications between a DCS 

execution team member and a lethal injection drug supplier, 

(2) Drug Enforcement Agency (DEA) forms, (3) inventory 

logs, (4) chemical analysis reports, (5) photographs of packaging, (6) invoices, and (7) purchase orders. DCS responded 

that these documents would not be disclosed, because they are 

confidential and exempt from disclosure under Neb. Rev. Stat. 

§ 83-967(2) (Reissue 2014) and because they are not public 

records as defined under § 84-712.01(1).

Each relator petitioned the district court for Lancaster County 

for a writ of mandamus to compel Frakes, in his official capacity as director of DCS, to produce the withheld records. In 

each case, the court entered a show cause order and Frakes 

filed an answer and response. Frakes argued that nondisclosure 

is justified under § 83-967(2), which makes the identity of all 
- 784 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE EX REL. BH MEDIA GROUP v. FRAKES

Cite as 305 Neb. 780

members of the execution team confidential and exempt from 

disclosure under the public records statutes.

The matter proceeded to trial. The court heard testimony 

from Miller, a citizen of Nebraska and an attorney for the 

ACLU of Nebraska Foundation; JoAnne Young, a reporter for 

LJS; and Joe Duggan, a reporter for OWH. A previous public 

records request by Miller and response by DCS from August 

16, 2016, was offered into evidence as exhibit 10. Exhibit 10 

contains correspondence between Frakes and a drug supplier 

concerning DCS’ payment for lethal injection drugs, an offer 

to sell and purchase order, invoices, DEA forms, and photocopies of packaging showing the expiration dates of lethal 

injection drugs.

Young testified about her reporting on state government and 

death penalty issues for the LJS since 2007. She admitted she 

may attempt to interview DCS’ lethal injection drug supplier 

if she learned its identity. Duggan testified that if he received 

information about the supplier, he would attempt to interview 

the supplier and would ask who else might have information 

about its transaction with DCS.

The relators called Frakes as a witness. Under DCS’ execution protocol, 1 which was received into evidence, the DCS 

director, the Nebraska State Penitentiary warden, and the 

Nebraska State Penitentiary public information officer are designated as members of the execution team. In his testimony, 

Frakes admitted without objection that he is a member of the 

execution team. In addition, he confirmed the publicly known 

identities of the warden and public information officer. Frakes 

did not contend that the lethal injection drug supplier is a member of the execution team.

Frakes testified that he would not publicly identify other 

members of the execution team, because there is the potential 

for threats or harassment. He testified that the purchase orders 

and chemical analysis reports were withheld, because they 

identify a member of the execution team “on their face.” He 

1 69 Neb. Admin. Code ch. 11, § 003 (2017).
- 785 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE EX REL. BH MEDIA GROUP v. FRAKES

Cite as 305 Neb. 780

testified that the communication with a supplier, DEA forms, 

photographs, and invoices were withheld, because they identify the supplier and, if contacted, the supplier could share the 

identity of a team member. He stated that “since the supplier 

has direct knowledge of team members, or at least one team 

member . . . I can . . . draw the connection that [it] would be 

able to identify a member of the team.” Frakes testified that 

inventory logs were withheld, because they “contain information that ultimately could lead to identifying the supplier.” He 

admitted that he had the ability to redact identifying information contained in the records and that he could ask the supplier 

not to identify any team members. He did not know whether 

DCS’ contract with the supplier contains a confidentiality or 

nondisclosure provision. He asserted that the photographs of 

packaging are attorney work product.

In closing arguments, the relators argued that the purchase 

orders and chemical analysis reports should undergo a redaction process and be disclosed. Regarding the remaining records, 

they argued that there is no provision under Nebraska law 

which makes the identity of a lethal injection drug supplier 

confidential. Frakes argued that because the withheld records 

name the supplier and the supplier knows the identity of a team 

member, the withheld records are reasonably calculated to lead 

to the identity of a team member.

On June 18, 2018, the district court entered orders in each 

case partially granting and partially denying the requests 

for writs of mandamus. The court found that pursuant to 

§ 84-712.01(3), it was required to liberally construe public 

records laws in favor of disclosure. The court found the relators met their burden to show a prima facie claim that they 

were denied access to public records as guaranteed by public 

records laws. The court interpreted § 83-967(2) as an exemption from disclosure under the public records statutes and 

found that the burden therefore shifted to Frakes to prove by 

clear and convincing evidence that the documents sought were 

exempt from disclosure. The court found that the purchase 

orders and chemical analysis reports identified execution team 
- 786 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE EX REL. BH MEDIA GROUP v. FRAKES

Cite as 305 Neb. 780

members on their face and therefore were exempt from disclosure under § 83-967(2). As to the remaining documents, the 

court found that Frakes failed to meet his burden to show that 

an exemption applies. The court stated that “[t]he evidence is 

speculative at best” that disclosure of these documents would 

lead to the identification of an execution team member. The 

court found that Frakes had not proved that the photographs of 

packaging are attorney work product. The court ordered Frakes 

to disclose within 7 days the communications with the supplier, DEA records, invoices, inventory logs, and photographs 

of packaging.

On June 19, 2018, Frakes filed a notice of appeal. On June 

27, relators filed motions to alter or amend the judgments 

to include an award of attorney fees and costs. The court 

determined that, despite Frakes’ notice of appeal, it had jurisdiction over the motions to alter or amend. The court found 

the motions to alter or amend were proper, because relators 

had requested attorney fees in their petitions. Following a 

hearing, the court granted relators’ motions for an award of 

attorney fees and costs. Frakes appealed, and relators crossappealed. We moved the appeals to our docket and consolidated them.

ASSIGNMENTS OF ERROR

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

finding relators had established standing and jurisdiction, (2) 

finding relators had met their burden to show the documents 

sought are public records as defined by § 84-712.01, (3) finding § 83-967(2) is an exemption from disclosure that the public 

body must prove applies by clear and convincing evidence, (4) 

finding Frakes failed to establish by clear and convincing evidence that the withheld documents are reasonably calculated 

to lead to the identity of an execution team member, (5) finding Young’s public records request was properly submitted, 

(6) finding the court had jurisdiction to rule on the motions to 

alter or amend, and (7) finding relators were entitled to attorney fees and costs.
- 787 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE EX REL. BH MEDIA GROUP v. FRAKES

Cite as 305 Neb. 780

Relators assign on cross-appeal that the district court erred 

in not requiring disclosure of the purchase orders and chemical 

analysis reports with the redactions of confidential information, 

in accordance with § 84-712.06.

STANDARD OF REVIEW

[1-3] Mandamus is a law action, and it is an extraordinary 

remedy, not a writ of right. 2 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. 3 Whether to grant a writ of mandamus is within the 

trial court’s discretion. 4

[4] Statutory interpretation is a question of law that an 

appellate court resolves independently of the trial court. 5

ANALYSIS

[5] 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 Section 84-712.01(1) defines public 

records in Nebraska: “[P]ublic 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.”

[6] The Legislature intended that courts liberally construe 

§§ 84-712 to 84-712.03 for disclosure “whenever any state . . . 

record of receipt [or] voucher, invoice, purchase order . . . or 

2 State ex rel. Veskrna v. Steel, 296 Neb. 581, 894 N.W.2d 788 (2017).

3 Id.

4 Id.

5 Aksamit Resource Mgmt. v. Nebraska Pub. Power Dist., 299 Neb. 114, 907 

N.W.2d 301 (2018).

6 Id.
- 788 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE EX REL. BH MEDIA GROUP v. FRAKES

Cite as 305 Neb. 780

expenditure involving public funds is involved.” 7 And it did 

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.” 8 Because the Legislature has expressed a strong 

public policy for disclosure, an appellate court must narrowly 

construe statutory exemptions shielding public records from 

disclosure. 9

[7,8] A person denied access to a public record may file for 

speedy relief by a writ of mandamus under § 84-712.03. 10 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. 11 If the requesting party satisfies its prima facie 

claim for release of public records, the public body opposing disclosure must show by clear and conclusive evidence 

that § 84-712.05 or § 84-712.08 exempts the records from 

disclosure. 12

Jurisdiction

We have two sets of appeals: those taken following the 

June 18, 2018, orders and those taken after the district court 

awarded attorney fees to the relators. The first appeals were 

7 § 84-712.01(3).

8 Id.

9 Aksamit Resource Mgmt., supra note 5.

10 Id.

11 Id. See State ex rel. Neb. Health Care Assn. v. Dept. of Health, 255 Neb. 

784, 587 N.W.2d 100 (1998).

12 See Aksamit Resource Mgmt., supra note 5; State ex rel. Neb. Health Care 

Assn., supra note 11. Cf. State ex rel. Veskrna, supra note 2 (using clear 

and convincing burden of proof); Evertson v. City of Kimball, 278 Neb. 1, 

767 N.W.2d 751 (2009).
- 789 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE EX REL. BH MEDIA GROUP v. FRAKES

Cite as 305 Neb. 780

premature. 13 We dismiss those appeals for lack of jurisdiction. 

We have jurisdiction over the second set of appeals.

Standing

Frakes argues that the relators lack standing to bring this 

mandamus action, because they failed to prove, as a threshold 

matter, that the documents they seek are “public records” as 

defined by § 84-712.01. In framing this as a standing argument, rather than a burden of proof argument, Frakes relies on 

language from State ex rel. Neb. Health Care Assn. v. Dept. 

of Health.

 14 In that case, as referenced above, we set out the 

respective burdens of proof that applied to those seeking to use 

mandamus to compel access to public records and those seeking to withhold such records. Frakes is correct that, in dicta, we 

described the relator’s burden of proof as something that was 

necessary “[i]n order to establish standing and jurisdiction” 15 to 

bring a mandamus action under § 84-712.03. But our language 

regarding standing and jurisdiction was imprecise, and has 

caused unnecessary confusion.

In the context of a public records denial, a district 

court’s jurisdiction over a writ of mandamus is governed by 

§ 84-712.03, and such jurisdiction does not turn on whether 

the claim advanced by the relator has merit. The concept of 

standing relates to a court’s power to address the issues presented and serves to identify those disputes which are appropriately resolved through the judicial process. 16 The focus of 

the standing inquiry is on whether the plaintiff is the proper 

party to assert the claim. 17 Indeed, in considering standing, 

the legal and factual validity of the claim presented must be 

13 See State ex rel. Fick v. Miller, 252 Neb. 164, 560 N.W.2d 793 (1997).

14 State ex rel. Neb. Health Care Assn., supra note 11.

15 Id., 255 Neb. at 789, 587 N.W.2d at 105.

16 Griffith v. Nebraska Dept. of Corr. Servs., 304 Neb. 287, 934 N.W.2d 169 

(2019).

17 Id.
- 790 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE EX REL. BH MEDIA GROUP v. FRAKES

Cite as 305 Neb. 780

assumed. 18 To the extent State ex rel. Neb. Health Care Assn.

framed the relator’s showing in a mandamus action seeking public records as a matter of standing and jurisdiction 

rather than a threshold burden of proof, we disapprove of 

that language.

A party denied access to records need only establish a prima 

facie claim that the requested record is a public record. 19 A 

party has established a prima facie claim if it has produced 

enough evidence to demonstrate that it is entitled to judgment 

if the evidence were uncontroverted. 20 The inquiry of whether 

a requested record is a public record focuses on the information 

or record sought. 21

The categories of records at issue in Frakes’ appeal are the 

records that the district court found did not on their face identify an execution team member, which are (1) communications 

between a DCS execution team member and a supplier, (2) 

DEA forms, (3) inventory logs, (4) photographs of packaging, and (5) invoices. Relators have not sought the identity 

of any execution team member and have requested that any 

confidential information within the records be redacted prior to 

their disclosure.

Here, after correctly setting out the parties’ respective 

burdens of proof, the district court made factual findings 

that relators met their burden to prove they were citizens 

of Nebraska or other persons interested in the examination 

of the public records, that the documents sought were public records as defined by § 84-712.01, and that Frakes had 

denied them access to the records. Because we do not find 

18 Id.

19 See, City of Kimball, supra note 12; State ex rel. Neb. Health Care Assn., 

supra note 11.

20 See Chicago Lumber Co. of Omaha v. Selvera, 282 Neb. 12, 809 N.W.2d 

469 (2011).

21 See, State ex rel. Adams Cty. Historical Soc. v. Kinyoun, 277 Neb. 749, 

765 N.W.2d 212 (2009); City of Kimball, supra note 12; State ex rel. Neb. 

Health Care Assn., supra note 11.
- 791 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE EX REL. BH MEDIA GROUP v. FRAKES

Cite as 305 Neb. 780

any of these findings to be clearly erroneous, we will not disturb them.

Frakes’ position is distinguishable from our decision in 

State ex rel. Unger v. State.

 22 In State ex rel. Unger, the relator sought the disclosure of a portion of a presentence report 

consisting of a victim’s questionnaire, which raised the issue 

of whether a presentence report is within the definition of 

“public records” under § 84-712.01. We found that under 

Neb. Rev. Stat. § 29-2261(6) (Cum. Supp. 2014), a presentence report is privileged and wholly exempt from disclosure 

unless otherwise provided by statute, and that as a result, 

presentence report materials are not considered public records 

under § 84-712.01(1). Even recognizing that State ex rel.

Unger upheld a public body’s decision to withhold information, that case does not support the overbroad theory that 

Frakes asserts here. If Frakes were correct on his standing 

and jurisdiction theory, we would have dismissed the appeal 

in State ex rel. Unger for lack of jurisdiction, but we did not 

do so. We affirmed the district court’s decision that the relator 

failed to establish a prima facie claim, because, in that case, 

the Legislature expressly made privileged a particular type of 

record, a presentence report. Consequently, the relator failed 

to set forth a prima facie claim, because even if his claim 

were uncontroverted, the information sought was privileged. 

Here, accepting their claims as uncontroverted for purposes 

of establishing a prima facie claim, relators have not sought 

privileged information, including the identity of any execution team member, nor any information reasonably calculated 

to lead to the identity of an execution team member. Section 

83-967(2) does not impede relators’ ability to establish a prima 

facie claim.

Frakes separately argues that Young and Duggan did not 

submit records requests on behalf of LJS and OWH respectively. However, the record is clear that Young and Duggan 

submitted the requests as journalists for their respective news 

22 State ex rel. Unger v. State, 293 Neb. 549, 878 N.W.2d 540 (2016).
- 792 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE EX REL. BH MEDIA GROUP v. FRAKES

Cite as 305 Neb. 780

organizations. The record is also clear that DCS was responding to Young and Duggan as representatives of their respective 

news organizations. Frakes further argues that Young’s request 

was in the form of questions and not requests. Assuming without deciding that Young’s records request was not submitted in 

the proper form, we find that Frakes has waived this argument 

pursuant to §§ 84-712(4) and 84-712.04. However, DCS did 

not deny Young’s request on this basis and simply responded 

in the same manner as it did to the other requesting parties. 

Therefore, Young did not have an opportunity to modify her 

request as provided under § 84-712(4).

The relators have standing, and the district court had jurisdiction under § 84-712.03.

Documents Subject to Public 

Records Statutes

Frakes next argues that the requested documents are not subject to the public records statutes based on § 83-967(2). Frakes 

contends that the disclosure of the documents will lead to the 

identity of the execution team members. Frakes relies upon the 

first clause of § 83-967(2), which provides: “The identity of all 

members of the execution team, and any information reasonably calculated to lead to the identity of such members, shall 

be confidential and exempt from disclosure pursuant to sections 84-712 to 84-712.09 . . . .”

It is well-understood that the public records statutes place 

the burden of proof upon the public body to justify nondisclosure. 23 In order for Frakes to withhold records responsive to 

relators’ public information requests based upon § 83-967(2), 

he has to show that the information identifies a member of the 

execution team or is reasonably calculated to lead to the identity of such a member.

[9-11] Statutory language is to be given its plain and 

ordinary meaning, and an appellate court will not resort to 

23 See, § 84-712.03(2); City of Kimball, supra note 12; State ex rel. Neb. 

Health Care Assn., supra note 11.
- 793 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE EX REL. BH MEDIA GROUP v. FRAKES

Cite as 305 Neb. 780

interpretation to ascertain the meaning of statutory words 

which are plain, direct, and unambiguous. 24 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. 25 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. 26

We first analyze Frakes’ argument that as a matter of statutory interpretation, § 83-967(2) provides a complete exception 

to Nebraska’s public records laws pursuant to the “other statute” exception found in § 84-712(1). Section 84-712(1) states: 

“Except as otherwise expressly provided by statute, 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 (a) examine 

such records, and . . . obtain copies of public records . . . .” 

(Emphasis supplied.)

Frakes argues that § 83-967(2) is an “other statute” and 

that when §§ 83-967(2) and 84-712(1) are read together, they 

combine to create an “exception from the entirety of the 

[public records statutes],” 27 and that therefore, the documents 

requested by relators are “not subject to the statute authorizing 

records requests.” 28

The public records statutes encourage open and transparent 

government. Even so, the Legislature has made certain records 

exempt from disclosure under §§ 84-712.05 and 84-712.08. 

Section 84-712.05 provides that 23 separate categories of 

records “may be withheld from the public,” so long as those 

24 In re Application No. OP-0003, 303 Neb. 872, 932 N.W.2d 653 (2019).

25 J.S. v. Grand Island Public Schools, 297 Neb. 347, 899 N.W.2d 893 

(2017).

26 State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018).

27 Reply brief for appellant in cases Nos. S-18-604 through S-18-606 at 9.

28 Brief for appellant in cases Nos. S-18-604 through S-18-606 at 20.
- 794 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE EX REL. BH MEDIA GROUP v. FRAKES

Cite as 305 Neb. 780

records have not been “publicly disclosed in an open court, 

open administrative proceeding, or open meeting or disclosed 

by a public entity pursuant to its duties.” Section 84-712.05 

permits the withholding of a variety of categories of sensitive information, such as medical records and Social Security 

numbers. Several of these types of records are identified 

as “confidential.” 29 Section 84-712.08 suspends §§ 84-712, 

84-712.01, and 84-712.03 through 84-712.09, as well as Neb. 

Rev. Stat. § 84-1413 (Cum. Supp. 2016), when the application 

of those provisions would result in the loss of federal funds, 

services, or essential information which would otherwise be 

available to a state agency.

A statute qualifies as an “other statute” under § 84-712(1) 

when the plain language of a statute makes it clear that a record, 

or portions thereof, is exempt from disclosure in response to a 

public records request. 30 An “other statute” exemption does not 

allow a court to imply an exemption but only allows a specific 

exemption to stand. 31

Section 83-967(2) provides that the identity of execution 

team members, and any information reasonably calculated 

to lead to the identity of such members, “shall be confidential and exempt from disclosure pursuant to sections 84-712 

to 84-712.09.” The plain and unambiguous language of 

§ 83-967(2) contains an identifiable legislative intent to prevent the disclosure of the identities of execution team members. Section 83-967(2) thus qualifies as an “other statute” 

under § 84-712(1).

Although we agree that § 83-967(2) qualifies as an “other 

statute” under § 84-712(1), we disagree with Frakes about 

the impact of this conclusion. The plain and ordinary language of § 83-967(2) does not provide a complete exception 

29 See § 84-712.05(4), (13), and (16)(b).

30 See Doe ex rel. Roe v. Washington State Patrol, 185 Wash. 2d 363, 374 

P.3d 63 (2016).

31 Id.
- 795 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE EX REL. BH MEDIA GROUP v. FRAKES

Cite as 305 Neb. 780

to the public records statutes. Rather, § 83-967(2) makes 

records “exempt from disclosure pursuant to sections 84-712 

to 84-712.09.” Frakes is attempting to imply an exception 

using § 84-712(1) without regard to the language found within 

§ 83-967(2).

[12] An exemption from disclosure should not be misunderstood as an exception to the laws of the public records statutes. 

Disclosure, within the meaning of the public records statutes, 

refers to the exposure of documents to public view. 32 In arguing that § 83-967(2) creates an exception to the entirety of the 

public records statutes, Frakes presumes that the sole obligation imposed by the public records statutes is the exposure of 

documents to public view. Contrary to Frakes’ presumption, 

however, the public records statutes impose other additional 

obligations upon governmental bodies. An example of such 

an additional obligation occurs when a public body denies a 

public records request and § 84-712.04(1) requires the public 

body to provide to the requesting party in writing a description 

of the withheld records and the reasons for denial, including 

citations to any particular supporting legal authority. The writing must name the public official responsible for denying the 

request and provide notice of the requester’s right to administrative or judicial review of the public body’s decision. Section 

84-712.04(2) requires each public body to maintain a file of 

all denial letters and to make the file available to any person 

upon request.

The language of § 83-967(2) states only that certain records 

are “confidential and exempt from disclosure,” which is similar to language the Legislature has used in exempting other 

confidential records from disclosure under § 84-712.05, like 

§ 84-712.05(4), (13), and (16)(b). There is no language within 

§ 83-967(2) that would relieve DCS of its obligations under 

the public records statutes to respond to and document public 

information requests even where documents are not exposed to 

32 State ex rel. Neb. Health Care Assn., supra note 11.
- 796 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE EX REL. BH MEDIA GROUP v. FRAKES

Cite as 305 Neb. 780

public view. Were we to accept Frakes’ view that § 83-967(2) 

operates as a complete exception to the public records statutes, 

he would have no obligation to respond to a records request 

that he deems to implicate § 83-967(2), confirm the existence 

of records sought, explain why records may be withheld, provide notice of a right to judicial or administrative review of 

his decision, or keep these requests on file or make such file 

available upon request.

Under this court’s precedent, we have consistently respected 

the venerable policies of the public records statutes when 

adjudicating the applicability of exemptions from disclosure. 33

In State ex rel. Sileven v. Spire,

 34 the relator filed a public records request for documents relevant to investigations 

of him by law enforcement. The trial court found that the 

documents fell within the plain and ordinary meaning of an 

exemption under § 84-712.05(5), because the records were 

developed or received by law enforcement agencies as part of 

an investigation. The relator claimed that he had a heightened 

interest in obtaining the records, because he was entitled to 

review information regarding his criminal history record as 

provided by Neb. Rev. Stat. § 29-3525 (Reissue 1989). This 

court cited to Neb. Rev. Stat. § 29-3506 (Reissue 1989), 

which provides that “[c]riminal history record information 

shall not include intelligence or investigative information.” 

In considering the impact of § 29-3506 on the relator’s argument, we cited to the “other statute” exception found within 

§ 84-712. We concluded that “[t]he information requested by 

the relator consists of records concerning an investigation of 

him and is specifically excluded from review under § 29-3506 

as well as § 84-712.05(5).” 35 Thus, we understood in that 

context that both an “other statute” exception under § 84-712 

33 See, State ex rel. Unger, supra note 22; State ex rel. Sileven v. Spire, 243 

Neb. 451, 500 N.W.2d 179 (1993).

34 State ex rel. Sileven, supra note 33.

35 Id., 243 Neb. at 457, 500 N.W.2d at 183.
- 797 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE EX REL. BH MEDIA GROUP v. FRAKES

Cite as 305 Neb. 780

and an exemption within § 84-712.05 applied, that both statutes protected the information sought from disclosure, and 

that applying either statute led to the same result. The fact 

that § 29-3506 qualified as an “other statute” did not render 

the public records statutes inapplicable nor preclude judicial 

review of the government’s decision to withhold information, 

as Frakes argues § 83-967(2) does here.

State courts in other jurisdictions have held that all public 

records exceptions, including “other statute” exceptions, are 

construed narrowly. 36 The “narrow construction” rule means 

that if there is a plausible construction of a statute favoring 

disclosure of public records that construction will prevail. 37

Reference to federal laws confirms the rule that an “other 

statute” exception is to be narrowly construed. “Nebraska, like 

the federal government and many other states, has broad public 

records laws that generally provide open access to governmental records.” 38 We have previously analogized decisions under 

the federal Freedom of Information Act (FOIA), 5 U.S.C. 

§ 552 (2018), to construe Nebraska’s public records statutes. 39

As an analogy to § 84-712, the third exemption under the 

FOIA, 5 U.S.C. § 552(b)(3), provides that disclosure requirements do not apply to matters “specifically exempted from 

disclosure by statute.” Exemptions under the FOIA “must be 

narrowly construed.” 40

36 Fisher Broadcasting v. City of Seattle, 180 Wash. 2d 515, 326 P.3d 688 

(2014). See, American Civil Liberties Union of Northern California v. 

Superior Court, 202 Cal. App. 4th 55, 134 Cal. Rptr. 3d 472 (2011); 

County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 89 Cal. 

Rptr. 3d 374 (2009); Colby v. Gunson, 224 Or. App. 666, 199 P.3d 350 

(2008).

37 Colby, supra note 36.

38 Kinyoun, supra note 21, 277 Neb. at 754, 765 N.W.2d at 217.

39 City of Kimball, supra note 12; State ex rel. Neb. Health Care Assn., supra

note 11.

40 Dept. of Air Force v. Rose, 425 U.S. 352, 361, 96 S. Ct. 1592, 48 L. Ed. 

2d 11 (1976).
- 798 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE EX REL. BH MEDIA GROUP v. FRAKES

Cite as 305 Neb. 780

With these principles in mind, we agree with the district court’s interpretation that § 83-967(2) is reasonably 

and ordinarily understood as an exemption like those under 

§ 84-712.05. In the context presented here, we must interpret 

§ 83-967(2) together with provisions under the public records 

statutes and narrowly construe § 83-967(2) in favor of disclosure, particularly due to the fact that this case concerns the 

expenditure of public funds.

Frakes relies on language from Aksamit Resource Mgmt. v. 

Nebraska Pub. Power Dist.

 41 In that case, the power district 

relied on an exemption under § 84-712.05(3) to withhold its 

competitive information; the power district did not rely on an 

“other statute.” We narrowly construed § 84-712.05(3) in favor 

of disclosure and held that the power district was required to 

disclose its records. We concluded our opinion by stating that 

had the Legislature passed a hypothetical “other statute” protecting the power district’s competitive information, “we would 

not hesitate to apply the ‘other statute’ exception of the public 

records law and the general principle favoring a specific over 

a general statutes.” 42

Within 2 months of our decision, the Legislature passed 

superseding legislation in Neb. Rev. Stat. § 70-673 (Reissue 

2018), which provides:

(1) Notwithstanding any other provision of law, the 

public power industry . . . and the Nebraska Power 

Review Board may withhold competitive or proprietary 

information which would give an advantage to business 

competitors. . . .

(2) Any request for records described in this section shall be subject to the procedures for public record 

requests provided in sections 84-712 to 84-712.09.

The language of § 70-673 demonstrates the shortcomings of 

Frakes’ theory regarding § 83-967(2). First, by using the phrase 

41 Aksamit Resource Mgmt., supra note 5.

42 Id., 299 Neb. at 127, 907 N.W.2d at 310.
- 799 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE EX REL. BH MEDIA GROUP v. FRAKES

Cite as 305 Neb. 780

“[n]otwithstanding any other provision of law,” the Legislature 

demonstrated with clear intention that § 70-673(1) should 

prevail when it conflicts with another statute. By contrast, 

§ 83-967(2) does not state that information is exempt from disclosure “notwithstanding [the public records statutes].” Rather, 

§ 83-967(2) states that information is exempt from disclosure 

“pursuant to [the public records statutes].” Under an appropriately narrow construction, § 83-967(2) can be harmonized with 

the public records statutes and interpreted as an exemption. 

Second, § 70-673(2) recognizes that, as described above, the 

public records statutes impose requirements to respond to and 

document public records requests. Under Frakes’ reading of 

§ 83-967(2), he is not subject to those statutory requirements 

even though § 83-967(2) is silent on the matter. Frakes’ atextual interpretation must be rejected.

The lessons of Aksamit Resource Mgmt. counsel against 

Frakes’ interpretation. In Aksamit Resource Mgmt., we overruled a district court’s determination that an exemption under 

§ 84-712.05 applied and found that under an appropriately 

narrow construction of the exemption, the records at issue 

were required to be disclosed. We apply precisely the same 

rationale here. Guided by the Legislature’s requirement under 

§ 84-712.01(3) that we liberally construe public records statutes in favor of disclosure in cases which concern the expenditure of public funds, we conclude that the district court correctly interpreted § 83-967(2) as an exemption under the public 

records statutes. This assignment of error is without merit.

Failure of Proof Exemption Applies

The next issue for consideration is whether Frakes met his 

burden of proving an exemption applies which justifies nondisclosure. The district court’s findings in favor of relators have 

the effect of a jury verdict and will not be disturbed unless 

they are clearly erroneous. 43

43 See State ex rel. Veskrna, supra note 2.
- 800 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE EX REL. BH MEDIA GROUP v. FRAKES

Cite as 305 Neb. 780

Frakes argues on appeal that the documents ordered to be 

disclosed contain information “reasonably calculated to lead to 

the identity” of a team member as pronounced in § 83-967(2). 

However, the phrase “reasonably calculated” is undefined by 

statute and has not previously been interpreted by this court 

in the context of § 83-967(2). We need not do so here. But 

our analysis should not be read to disregard this phrase or to 

suggest that it could never lead to withholding records which 

would otherwise be subject to disclosure under the public 

records statutes.

Even accepting, only for purposes of argument, Frakes’ 

proposed definition, the evidence did not rise to that level. He 

defines “reasonably calculated” as that which is “moderately 

likely.” 44 Thus, he argues, § 83-967(2) protects “information 

[moderately likely] to lead to the identity” of an execution 

team member. Frakes testified that he understood identifying 

information of an execution team member to include that person’s name, official title, personal or work email address, or 

office address. Apart from the purchase orders and chemical 

analysis reports, which identify a team member on their face, 

Frakes has not elicited any proof that the remaining records 

contain any identifying information with regard to an execution team member. Nor did he present evidence of a chain of 

discovery moderately likely to result in the discovery of the 

identity of an execution team member.

We digress to reject two arguments advanced by the parties. First, the relators disputed whether unidentified execution team members truly are at risk of threats or harassment if 

identified. But regardless of the factual record on this issue, the 

Legislature has protected against the disclosure of the identities 

of execution team members under § 83-967(2). Second, there 

is no merit to Frakes’ argument that the occupations of Miller, 

Young, and Duggan make it more likely that disclosure of the 

records will lead to the identity of a team member. Frakes’ duty 

to disclose public records does not depend on who makes the 

44 Brief for appellant in cases Nos. S-18-604 through S-18-606 at 25.
- 801 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE EX REL. BH MEDIA GROUP v. FRAKES

Cite as 305 Neb. 780

request. The public records statutes apply “equally to all persons without regard to the purpose for which the information is 

sought.” 45 As a general rule, citizens are not required to explain 

why they seek public information. 46 “The information belongs 

to citizens to do with as they choose.” 47 The withholding of 

information under public records laws cannot be predicated on 

the identity of the requester. 48

Upon review of the sworn testimony, exhibits, the district 

court’s order, and the parties’ arguments on appeal, we conclude that Frakes failed to prove by clear and conclusive evidence that any of the requested records are reasonably calculated to lead to the identity of an execution team member. The 

evidence on this issue was slight on both sides, with the burden 

of proof on Frakes.

While objections were sustained to numerous questions 

which may have been aimed at meeting this burden, Frakes 

made no offers of proof 49 nor does he assign any error on 

appeal to these evidentiary rulings. 50

In his presentation to the trial court, Frakes focused on 

arguing that the public records statutes are inapplicable and 

that relators carry the burden of proof. Frakes conceded that 

these records do not identify execution team members on their 

45 State ex rel. Sileven, supra note 33, 243 Neb. at 457, 500 N.W.2d at 183.

46 National Archives and Records Admin. v. Favish, 541 U.S. 157, 124 S. Ct. 

1570, 158 L. Ed. 2d 319 (2004).

47 Id., 541 U.S. at 172.

48 See id. See, also, U. S. Dept. of Justice v. Reporters Committee, 489 U.S. 

749, 109 S. Ct. 1468, 103 L. Ed. 2d 774 (1989); NLRB v. Sears, Roebuck 

& Co., 421 U.S. 132, 95 S. Ct. 1504, 44 L. Ed. 2d 29 (1975); North v. 

Walsh, 881 F.2d 1088 (D.C. Cir. 1989).

49 See Sturzenegger v. Father Flanagan’s Boys’ Home, 276 Neb. 327, 754 

N.W.2d 406 (2008) (to predicate error upon ruling to permit witness to 

answer specific question, record must show offer to prove facts sought to 

be elicited).

50 See Armstrong v. State, 290 Neb. 205, 859 N.W.2d 541 (2015) (for 

appellate court to consider alleged error, party must specifically assign and 

argue it).
- 802 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE EX REL. BH MEDIA GROUP v. FRAKES

Cite as 305 Neb. 780

face, and he did not argue that the five categories of withheld 

records at issue contained any identifying information with 

regard to an execution team member. Frakes testified that the 

records identify a lethal injection drug supplier, which if contacted could disclose the identity of an execution team member. 

But he provided no evidence that such disclosure was likely. 

We agree with the district court that Frakes’ attenuated reasoning about whether an unidentified third party may or may not 

divulge confidential information is unpersuasive.

Relators had little difficulty undermining Frakes’ position 

on cross-examination. Frakes admitted that he could ask the 

supplier not to identify any execution team members, but did 

not know if this had been done. He also did not know if the 

contract with the supplier contains any confidentiality or nondisclosure provisions. In addition, Frakes acknowledged that 

the inventory logs do not identify a supplier, but, rather, they 

“contain information that ultimately could lead to identifying 

the supplier.”

Frakes failed to prove that the records contain any information which if disclosed would reasonably lead to the identity 

of a team member. Frakes faced a weighty burden to prove 

by clear and conclusive evidence that an exemption applies. 

Frakes’ conclusory allegations that records here come within 

an exemption are insufficient. The district court was well 

within its discretion to issue a partial writ to compel Frakes to 

produce these records. The court did not err in concluding that 

Frakes failed to prove by clear and conclusive evidence that an 

exemption applies.

Attorney Fees

Frakes argues the district court lacked jurisdiction to award 

relators attorney fees and costs, because he had already filed 

a notice of appeal and paid the docket fee. In addition, Frakes 

argues that the award of attorney fees was improper, because 

there is evidence that the relators’ expenses will be reimbursed by a third party. We find no merit to these assignments 

of error.
- 803 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE EX REL. BH MEDIA GROUP v. FRAKES

Cite as 305 Neb. 780

The district court issued orders on June 18, 2018, compelling Frakes to disclose the records which did not identify an 

execution team member on their face within 7 days. Frakes 

appealed the next day. Relators timely filed motions to alter 

or amend the judgments on June 27. Those motions asked the 

district court to alter or amend the judgments to award attorney fees and litigation costs to them pursuant to § 84-712.07, 

as requested in their petitions. The court’s June 18 order was 

silent on the issue of attorney fees and therefore implicitly 

denied relators’ request. 51 As to the relators’ motions to alter 

or amend, the district court found that it had jurisdiction over 

the motions and awarded the relators reasonable attorney fees 

and costs.

Where a request for attorney fees is made pursuant to state 

law, attorney fees are generally treated as an element of court 

costs, and an award of costs in a judgment is considered a 

part of the judgment. 52 A party seeking statutorily authorized 

fees must make a request for such fees prior to a judgment 

in the cause. 53 If a postjudgment motion seeks a substantive 

alteration of the judgment, a court may treat the motion as 

one to alter or amend the judgment. 54 A motion to alter or 

amend a judgment under Neb. Rev. Stat. § 25-1329 (Reissue 

2016) must be filed no later than 10 days after the entry 

of judgment.

[13] A motion to alter or amend a judgment is a “terminating motion” under Neb. Rev. Stat. § 25-1912(3) (Supp. 2017). 

Pursuant to § 25-1912(3), when any terminating motion such 

as a motion to alter or amend is timely filed, a notice of 

appeal filed before the court announces its decision upon the 

terminating motion shall have no effect, whether filed before 

51 See Murray v. Stine, 291 Neb. 125, 864 N.W.2d 386 (2015).

52 Webb v. Nebraska Dept. of Health & Human Servs., 301 Neb. 810, 920 

N.W.2d 268 (2018).

53 Id.

54 Clarke v. First Nat. Bank of Omaha, 296 Neb. 632, 895 N.W.2d 284 

(2017).
- 804 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE EX REL. BH MEDIA GROUP v. FRAKES

Cite as 305 Neb. 780

or after the timely filing of the terminating motion. That section further states that a new notice of appeal shall be filed 

within the prescribed time after the entry of the order ruling 

on the motion. 55

Frakes admits that a timely filed motion to alter or amend 

would have nullified his notice of appeal filed on June 19, 

2018, but argues that relators’ motions were not motions to 

alter or amend. To make this argument, Frakes mistakenly 

claims that relators never made a request for attorney fees 

prior to judgment. However, the record is clear that the relators requested attorney fees in their pleadings. A request for 

attorney fees in a pleading is sufficient to comply with the 

requirement that a party must request such fees prior to judgment. 56 Relators’ motions to include an award for attorney 

fees and costs sought substantive alteration of the judgments. 

Additionally, relators’ motions were filed within 10 days of 

the entry of the judgment. As a result, under § 25-912(3), the 

motions to alter or amend caused Frakes’ notice of appeal to 

have no effect. The district court had jurisdiction to award 

relators attorney fees and costs.

Frakes further argues that the court erred in awarding fees because they were not “reasonably incurred by the 

complainant.” 57 Section 84-712.07 provides that in any case 

in which the complainant seeking access to public records has 

substantially prevailed, the court may assess against the public body which had denied access to their records reasonable 

attorney fees and other litigation costs reasonably incurred by 

the complainant. The record indicates that both OWH and LJS 

offered affidavits setting forth their fee arrangement with their 

counsel. The affidavits stated that OWH and LJS and their 

counsel agreed that “Media of Nebraska, Inc. would pay the 

55 See, Bryson L. v. Izabella L., 302 Neb. 145, 921 N.W.2d 829 (2019); State 

v. Blair, 14 Neb. App. 190, 707 N.W.2d 8 (2005).

56 See, Webb, supra note 52; Murray, supra note 51; Olson v. Palagi, 266 

Neb. 377, 665 N.W.2d 582 (2003).

57 § 84-712.07.
- 805 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE EX REL. BH MEDIA GROUP v. FRAKES

Cite as 305 Neb. 780

legal fees for the litigation.” Frakes therefore contends that the 

relators “failed to offer any evidence they incurred any fees at 

all. Instead, they established the fees were incurred by a third 

party . . . .” 58 We disagree.

[14] On appeal, a trial court’s decision awarding or denying 

attorney fees will be upheld absent an abuse of discretion. 59

Black’s Law Dictionary defines “‘incur’” as a verb meaning 

“‘[t]o suffer or bring on oneself (a liability or expense).’” 60

Here, the district court found that relators had incurred a 

fair and reasonable amount of attorney fees. Frakes does not 

contest the reasonableness of the amount of fees awarded, 

but merely argues that relators did not incur the fees because 

another entity has agreed to pay those fees. We find no error in 

the court’s decision. Billing records in evidence show that relators did incur attorney fees. Section 84-712.07 requires only 

that the fees be “reasonably incurred.” There is no requirement 

under § 84-712.07 that the fees be “‘actually incurred’” 61 by 

the prevailing party. Relators incurred fees even if those fees 

were later reimbursed by a third party. This assignment of error 

is without merit.

Cross-Appeals

On cross-appeal, relators argue that the district court erred 

in not ordering Frakes to redact confidential information contained in the purchase orders and chemical analysis reports 

and disclose the balance of such records in accordance with 

§ 84-712.06. Relators’ cross-appeals raise an issue of first 

impression under Nebraska law.

[15] Section 84-712.06 of the public records statutes requires 

that “[a]ny reasonably segregable portion of a record shall be 

58 Brief for appellant in cases Nos. S-19-027 through S-19-029 at 39.

59 TransCanada Keystone Pipeline v. Nicholas Family, 299 Neb. 276, 908 

N.W.2d 60 (2018).

60 Id., 299 Neb. at 285, 908 N.W.2d at 67, quoting Black’s Law Dictionary 

885 (10th ed. 2014).

61 See id. (interpreting Neb. Rev. Stat. § 76-726 (Reissue 2018)).
- 806 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE EX REL. BH MEDIA GROUP v. FRAKES

Cite as 305 Neb. 780

provided to the public as a public record upon request after 

deletion of the portions which may be withheld.” The FOIA 

contains an analogous provision under 5 U.S.C. § 552(b). In 

interpreting the FOIA, the Eighth Circuit has recognized that 

agencies are required to disclose nonexempt portions of a 

document, unless those nonexempt portions are inextricably 

intertwined with exempt portions. 62 Effectively, each document 

consists of “‘discrete units of information,’” all of which must 

fall within a statutory exemption in order for the entire document to be withheld. 63 The withholding of an entire document 

by an agency is not justifiable simply because some of the 

material therein is subject to an exemption. 64

The agency has the burden to show that the exempt portions of the documents are not segregable from the nonexempt material. 65 The agency’s justification must be relatively 

detailed, correlating specific parts of the requested documents 

with the basis for the applicable exemption. 66 An agency 

need not commit significant time and resources to the separation of disjointed words, phrases, or even sentences which 

taken separately or together have minimal or no information 

content. 67 Ultimately, to carry its burden before the district 

court, the agency must provide a reasonably detailed justification rather than conclusory statements to support its claim 

that the nonexempt material in a document is not reasonably 

segregable. 68 When agencies demonstrate that the withheld 

records are exempt in their entireties, courts have upheld the 

62 Mo. Coalition for Environment v. U.S. Army Corps, 542 F.3d 1204 (8th 

Cir. 2008).

63 Id. at 1212.

64 Id.

65 Id.

66 Id.

67 Mead Data Cent., Inc. v. U.S. Dept. of Air Force, 566 F.2d 242 (D.C. Cir. 

1977).

68 See, id.; Schoenman v. F.B.I., 841 F. Supp. 2d 69 (D.D.C. 2012).
- 807 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE EX REL. BH MEDIA GROUP v. FRAKES

Cite as 305 Neb. 780

determination that no segregation is possible. 69 The declarations must provide the relator a “‘“meaningful opportunity 

to contest, and the district court an adequate foundation to 

review, the soundness of the withholding.”’” 70

Frakes did not argue that confidential portions of the withheld documents are not segregable from nonexempt portions. 

Frakes instead made the argument, rejected above, that the 

documents were by definition wholly exempt from disclosure. 

Although relators properly raised the issue, the district court 

made no findings on the issue of segregability. Rather, the 

district court conducted a different analysis by distinguishing 

the withheld records between those which identified a team 

member on their face and those which did not. This left unaddressed the argument raised by relators that under the public 

records statutes nonexempt portions of the purchase orders and 

chemical analysis reports should be disclosed.

Appellate courts may address the issue of segregability on 

their own or may remand the matter to the district court to 

make findings on the issue. 71 Here, it is clear that Frakes has 

proved that an exemption applies to the names of execution 

team members as well as any of their identifying information, such as that person’s official title or contact information. 

However, we find nothing in our record on appeal which suggests that an exemption applies to the portions of the purchase 

orders and chemical analysis reports which do not identify 

an execution team member, and there is no evidence that the 

exempt portions of the records are inextricably intertwined 

with nonexempt portions. Nonexempt portions of those records 

are not entitled to protection under § 83-967(2) and must be 

disclosed pursuant to § 84-712.06.

69 See Jarvik v. C.I.A., 741 F. Supp. 2d 106 (D.D.C. 2010).

70 American Civil Liberties Union of Northern California, supra note 36, 202 

Cal. App. 4th at 85, 134 Cal. Rptr. 3d at 495, quoting Wilderness Soc. v. 

U.S. Dept. of Interior, 344 F. Supp. 2d 1 (D.D.C. 2004).

71 See Juarez v. Dept. of Justice, 518 F.3d 54 (D.C. Cir. 2008).
- 808 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE EX REL. BH MEDIA GROUP v. FRAKES

Cite as 305 Neb. 780

On remand, the district court must order Frakes to produce nonexempt portions of the purchase orders and chemical 

analysis reports after portions that may be withheld have been 

redacted, such as an execution team member’s name, title, 

home or work address, telephone number, or email address.

CONCLUSION

In cases Nos. S-18-604 through S-18-606, we dismiss the 

appeals for lack of jurisdiction. In cases Nos. S-19-027 through 

S-19-029, we affirm in part, and in part reverse and remand 

with directions to issue appropriate writs in conformity with 

this opinion.

Appeals in Nos. S-18-604 through S-18-606 

dismissed.

Judgments in Nos. S-19-027 through S-19-029

affirmed in part, and in part reversed 

and remanded with directions.

Papik, J., not participating.