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HUFF v. BROWN

Cite as 305 Neb. 648

Herchel H. Huff, appellee, v. Doug Brown, 

sheriff of Furnas County, appellant.

___ N.W.2d ___

Filed April 23, 2020. No. S-19-271.

1. 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.

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

court’s discretion.

3. Public Officers and Employees: Records. The duty, if any, to provide 

public records stays with the office of the records’ custodian and is 

transferred to a new holder of the office.

4. Mandamus: Proof. A party seeking a writ of mandamus under Neb. 

Rev. Stat. § 84-712.03 (Cum. Supp. 2018) 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).

5. ____: ____. If the public body holding the record wishes to oppose 

the issuance of a writ of mandamus, the public body must show, by 

clear and conclusive evidence, that the public record at issue is exempt 

from the disclosure requirement under one of the exceptions provided 

by Neb. Rev. Stat. § 84-712.05 (Cum. Supp. 2018) or Neb. Rev. Stat. 

§ 84-712.08 (Reissue 2014).

6. Mandamus: Words and Phrases. Mandamus is a law action and is 

defined as an extraordinary remedy, not a writ of right, issued to compel 

the performance of a purely ministerial act or duty, imposed by law 

upon an inferior tribunal, corporation, board, or person, where (1) the 

relator has a clear right to the relief sought, (2) there is a corresponding 

Nebraska Supreme Court Online Library

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

04/23/2020 10:10 AM CDT
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clear duty existing on the part of the respondent to perform the act, and 

(3) there is no other plain and adequate remedy available in the ordinary 

court of law.

7. Mandamus: Proof. Under Neb. Rev. Stat. § 84-712.03(1)(a) (Cum. 

Supp. 2018), the requesting party’s initial responsibility includes demonstrating that the requested record is a public record that he or she has a 

clear right to access under the public records statutes and that the public 

body or custodian against whom mandamus is sought has a clear duty to 

provide such public records.

Appeal from the District Court for Furnas County: James E. 

Doyle IV, Judge. Affirmed in part, and in part reversed and 

remanded.

Melodie T. Bellamy, Special Counsel for Furnas County, and 

Morgan R. Farquhar, Furnas County Attorney, for appellant.

Herchel H. Huff, pro se.

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

and Papik, JJ.

Miller-Lerman, J.

NATURE OF CASE

Doug Brown, the sheriff of Furnas County, appeals the 

order of the district court for Furnas County, Nebraska, which 

granted in part a writ of mandamus requiring him to provide 

records to Herchel H. Huff pursuant to the public records 

statutes. Brown argues, inter alia, that the court erred when it 

substituted him as a party for the prior sheriff, when it granted 

the writ based solely on Huff’s affidavit, when it granted the 

writ despite Huff’s failure to respond to the prior sheriff’s 

response which required Huff to deposit fees before certain 

records would be produced, and when it waived fees that were 

authorized by statute.

We conclude that although the district court did not err when 

it substituted Brown’s name for that of the former sheriff, 

the court erred when it determined that Huff had shown that 

Brown had a clear duty to provide the records requested. We 
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therefore affirm in part the order to the extent it denied Huff’s 

petition but reverse in part the order to the extent it granted the 

writ of mandamus.

STATEMENT OF FACTS

On September 23, 2018, Huff sent to then Furnas County 

sheriff Kurt Kapperman a 4-page letter which included 15 

numbered paragraphs of requests for public records. Huff is an 

inmate serving sentences for convictions including motor vehicle homicide. The documents requested by Huff included, inter 

alia, records relating to the investigation of charges against 

him, criminal history records of jurors who had convicted 

him, criminal history records of and fees and expenses paid 

to witnesses and prosecuting attorneys in his trial, information 

regarding the salaries paid to the sheriff, and records relating to 

the impoundment of his vehicle.

Kapperman responded in writing to Huff’s requests on 

October 2, 2018. Kapperman stated that “no responsive records 

exist[ed]” as to 14 of the 15 paragraphs of requests. The 

remaining paragraph, denominated as “request 3,” included 

requests for jail records, including medical records, maintained 

pursuant to Neb. Rev. Stat. § 47-204 (Reissue 2010). In request 

3, Huff requested his own jail records as well as records for 

certain jurors from his trial that he asserted had been “convicted [of] or cited for DWI.” In his response, Kapperman 

stated with respect to the request for jail records relating to 

jurors that “no responsive records exist, and the request seeks 

protected medical information.” With respect to the request for 

Huff’s jail records, Kapperman estimated that “the inspection 

and copying of records would cost approximately $750.00” 

and stated that he therefore required “a deposit of $750.00 

before fulfilling such a request.” Kapperman cited Neb. Rev. 

Stat. § 84-712(3)(f) (Reissue 2014) as authority for requiring 

the deposit.

On October 15, 2018, Huff filed a petition for writ of mandamus under Neb. Rev. Stat. § 25-2156 (Reissue 2016) and 
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the public records statutes, Neb. Rev. Stat. § 84-712 et seq. 

(Reissue 2014 & Cum. Supp. 2018). Huff named “Sheriff Kurt 

Kapperman” as the defendant in the petition. Huff sought an 

“order compelling . . . Kapperman to release all requested 

documents per the [public records] statutes.” Kapperman filed 

an answer on January 21, 2019, in which he generally denied 

the allegations in Huff’s petition. Kapperman also asserted that 

Huff had failed to state a claim against him upon which relief 

could be granted, because Brown had been sworn into office on 

January 3 and Kapperman was no longer sheriff.

On January 30, 2019, the court held a telephonic hearing. 

The court first took up and overruled Huff’s motion to disqualify the judge. The court then turned to the petition for a 

writ of mandamus. The court referred to an affidavit of Huff 

dated November 13, 2018, which had been offered into evidence by Huff and marked as exhibit 3. It generally asserted 

that Huff had requested documents from Kapperman, that the 

documents were public records subject to disclosure, and that 

Kapperman had failed to comply with Huff’s request and was 

refusing to release records, in violation of the public records 

statutes. Kapperman objected to exhibit 3 “on the basis that [he 

had not] had an opportunity to cross-examine” Huff regarding 

statements in the affidavit. The court overruled Kapperman’s 

objection and admitted exhibit 3 into evidence.

Neither Huff nor Kapperman offered additional evidence, 

and the court heard argument by both parties. In addition to 

arguing that he could not comply with Huff’s request because 

he was no longer the sheriff of Furnas County, Kapperman 

argued that Huff was barred from proceeding with his claim 

because Huff had failed to timely respond to Kapperman’s 

response of October 2, 2018, in violation of § 84-712(4), 

which requires a deposit before Kapperman would provide the 

requested records that were in his possession.

On February 14, 2019, the district court filed an order in 

which it granted in part and denied in part Huff’s petition for a 

writ of mandamus. The court addressed Kapperman’s argument 
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that Huff failed to state a claim against Kapperman because he 

was no longer the Furnas County sheriff. The court stated that 

the fact that Kapperman was no longer the sheriff was “of no 

consequence” because the petition was directed at the office of 

the sheriff, not at the specific individual occupying the office 

at any given time. Accordingly, the court permitted Huff “to 

substitute . . . Brown, the current Furnas County Sheriff[,] in 

the caption of the case in place of Kapperman.”

Turning to the merits of Huff’s request, the court stated that 

the sheriff’s response that he had “no responsive records” to 

most of Huff’s requests was “not sufficient.” The court cited 

Nebraska precedent which it read to provide that the reference in § 84-712.01(1) to public records “of or belonging to” 

a public custodian “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.” Based on that reading of precedent, 

the court reviewed Huff’s specific requests and categorized 

them into three general groups: (1) records the sheriff was 

not required to produce, (2) records the sheriff appeared to be 

entitled to possess, and (3) records the sheriff appeared not to 

be entitled to possess.

The court included in the first category—records the sheriff was not required to produce—medical records related 

to persons other than Huff and a report of the names of all 

county officials. In his request 3, Huff requested, inter alia, 

jail records, including medical records, for certain jurors in 

his trial. The court determined that medical records relating to persons other than Huff were exempt from production 

under § 84-712.05(2). In another request, Huff requested 

records maintained pursuant to Neb. Rev. Stat. § 23-1306 

(Reissue 2012) regarding “all the county officers with their 

official signatures and seals of their respective offices.” The 

court noted that § 23-1306 gave the county clerk the duty to 

maintain such records regarding county officers. The court 

determined that the sheriff might be entitled to possess such 
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records with regard to his own office, and it therefore included 

records regarding the office of sheriff in the second category, 

discussed below. However, the court concluded that with 

regard to records regarding other county officials, the sheriff 

did not have a duty to respond. The court therefore denied in 

part Huff’s petition for mandamus, because it pertained to the 

requests for medical records of others and information regarding other county officers.

The court generally granted mandamus as to Huff’s remaining requests and set forth different requirements as to each 

request depending on how certain the court was that the sheriff was entitled to possess the requested record. The requests 

were generally denominated as records the court presumed the 

sheriff was entitled to possess or records the court thought the 

sheriff might not be entitled to possess. This categorization 

was consistent with the second and third categories identified above.

Regarding records it presumed the sheriff was entitled to 

possess, the court ordered the sheriff to conduct a due and diligent investigation to determine whether such records existed 

and, if so, to provide them to Huff. If after a due and diligent 

investigation the sheriff determined he was not entitled to possess the records, the sheriff would be granted the opportunity 

to rebut the presumption by affidavit evidence. Such affidavit 

would need to include the facts necessary to support the sheriff’s determination, as well as the identity and location of any 

other custodian of records that the sheriff believed was entitled 

to possess the records.

Regarding records the court thought the sheriff might not 

be entitled to possess, the court ordered the sheriff to conduct a due and diligent investigation to determine whether 

such records existed and, if so, to provide them to Huff. If 

the records were no longer available, the sheriff would be 

required to explain in writing why such records were no 

longer available. If the sheriff determined his office was not 

entitled to possess the records, the sheriff needed to report 
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facts supporting such determination and identify any other 

public custodian the sheriff believed was entitled to possess 

the records.

In its order, the court also addressed the requirement that 

Huff deposit a fee before the sheriff would provide Huff’s jail 

records, which the sheriff had determined he could provide. 

The court stated that § 84-712(3)(b) and (f) authorizes a public records custodian to charge a fee that “‘shall not exceed 

the actual added cost of making the copies available’” and to 

require a deposit if the cost is estimated to exceed $50. The 

court concluded that “[t]his provision authorized the deposit 

requested by the sheriff.” The court noted, however, that Huff 

was indigent and had been permitted to proceed in forma pauperis in this action.

The court acknowledged that neither the public records 

statutes nor the in forma pauperis statutes explicitly supported 

a waiver of the fees chargeable under § 84-712. Nevertheless, 

the court determined that in enacting the public records statutes, “the [L]egislature intended to make all public records 

readily available to the public,” and the court “infer[red that] 

the [L]egislature intended to avoid the imposition of copying 

expenses as [a] means to avoid the obligation to produce public records.”

The court noted that as an inmate, Huff did not have the 

ability to examine public records in situ, and that therefore, 

his only access to records would be by obtaining copies; the 

court further noted that as a prisoner, Huff had little financial 

resources to pay the costs. Therefore, in order to fulfill what it 

determined to be the Legislature’s intent and the court’s authority under § 84-712.03(2) “to grant such other equitable relief 

as may be proper,” the court determined that fees were subject 

to waiver in an appropriate circumstance. The court determined 

that Huff’s requests were not frivolous, and it therefore concluded that the fees associated with his requests were subject 

to waiver and should in fact be waived. The court applied this 

holding to both the $750 deposit that the sheriff had required 
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and any fees that might be chargeable in connection with the 

additional production of records ordered by the court.

In conclusion, the court ordered that the sheriff would have 

30 days from the date of the order

to conduct the investigations and inquiries required, to 

deliver to Huff the records required by this order or state 

under oath he is not entitled to possess such records and 

the identity and location of any custodian of the public 

body he believes is entitled to possess such records and 

to contemporaneously file with the court a report of his 

responses to the requests and his responses to this writ.

Brown appeals the order of the district court.

ASSIGNMENTS OF ERROR

Brown claims, renumbered and restated, that the court erred 

when it (1) substituted Brown for Kapperman as the defendant; 

(2) found that the sheriff had a duty to provide certain records 

even after Huff failed to pay a fee or timely respond as required 

under § 84-712(4); (3) received exhibit 3 into evidence and 

ordered a writ of mandamus without admitting any other evidence; (4) ordered the sheriff (a) to provide records without the 

payment of an authorized fee, (b) to provide records that were 

not in his possession, and (c) to conduct an investigation and 

to report on other requested records by identifying and locating 

the custodian of such records; and (5) waived fees and costs 

authorized under § 84-712 and ordered the sheriff to produce 

records without the payment of such fees and costs.

STANDARDS OF REVIEW

[1,2] Mandamus is a law action, and it is an extraordinary remedy, not a writ of right. Aksamit Resource Mgmt. v. 

Nebraska Pub. Power Dist., 299 Neb. 114, 907 N.W.2d 301 

(2018). 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. Id. 

Whether to grant a writ of mandamus is within the trial court’s 

discretion. Id.
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ANALYSIS

Petition for Writ of Mandamus and Request for Public 

Records Were Directed at Person Holding Office 

of Sheriff, and Therefore, Court Did Not Err 

When It Allowed Substitution of Brown’s 

Name for Kapperman’s.

Brown first claims that the district court erred when it 

substituted his name as sheriff for that of Kapperman as the 

defendant in this action. We determine that the district court 

fairly interpreted Huff’s records request and petition for a writ 

of mandamus as being directed at the office of the Furnas 

County sheriff as the custodian of public records and that 

therefore, the court did not err when it allowed the caption 

for this action to be updated to reflect the name of the current 

holder of that office.

The district court noted that “Huff’s request for the production of public records was directed to the office of the sheriff 

of Furnas County . . . not to the individual who occupied the 

office at the time of the delivery of the request.” We agree 

with the district court’s interpretation of the request and of 

Huff’s petition for a writ of mandamus as seeking compliance 

with that request by the sheriff. A request under the public 

records statutes is directed to the custodian of the records being 

sought, and although a request is made to the specific person 

holding the position of custodian, in substance it is inherently 

directed at the holder of the office that acts as the custodian of 

the records.

[3] We note that Neb. Rev. Stat. § 23-1709 (Reissue 2012) 

provides in relevant part that “[w]hen a sheriff goes out of 

office he or she shall deliver to his or her successor all books 

and papers pertaining to the office . . . .” We read the requirement under § 23-1709 that a sheriff leaving office deliver “all 

books and papers” to his or her successor to include public 

records for which the sheriff is custodian. We further note that 

with regard to the naming of parties to an action, Neb. Rev. 

Stat. § 25-322 (Reissue 2016) provides in relevant part:
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An action does not abate by . . . the transfer of any 

interest therein during its pendency, if the cause of action 

survives or continues. . . . In case of [a] transfer of interest, the action may be continued in the name of the original party or the court may allow the person to whom the 

transfer is made to be substituted in the action.

Reading these statutes together, we determine that Huff’s 

action for mandamus to enforce his public records request 

directed to the holder of the office of sheriff did not abate as 

a result of the transfer of public records of the sheriff’s office 

from Kapperman as custodian to Brown as custodian. The 

duty, if any, to provide public records stays with the office 

of the records’ custodian and is transferred to the new holder 

of the office. We therefore conclude that the district court did 

not err when it allowed the substitution of Brown’s name for 

Kapperman’s name as custodian of the public records at issue 

in this action.

In Order for Court to Issue Mandamus, Huff 

Needed to Show That Sheriff Had Clear 

Duty to Provide Requested Records.

The remaining issues on appeal deal with Huff’s requests for 

public records and whether he was entitled to a writ of mandamus requiring the sheriff to provide the requested records. We 

therefore review standards relating to mandamus in the context 

of a public records request.

[4,5] A person denied access to a public record may file 

for speedy relief by a writ of mandamus under § 84-712.03.

Aksamit Resource Mgmt. v. Neb. Pub. Power Dist., 299 Neb. 

114, 907 N.W.2d 301 (2018). We have stated that 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. 
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Aksamit Resource Mgmt., supra. Where a suit is filed under 

§ 84-712.03, the Legislature has imposed upon the public 

body the burden to “‘sustain its action.’” Aksamit Resource 

Mgmt., 299 Neb. at 123, 907 N.W.2d at 308. If the public 

body holding the record wishes to oppose the issuance of a 

writ of mandamus, the public body must show, by clear and 

conclusive evidence, that the public record at issue is exempt 

from the disclosure requirement under one of the exceptions 

provided by § 84-712.05 or § 84-712.08. See Aksamit Resource 

Mgmt., supra.

In the present case, the only documents that the sheriff 

asserted were exempt from disclosure under a statutory exception were medical records that the sheriff asserted to be exempt 

under § 84-712.05(2). The court agreed that such records were 

exempt from disclosure, and it therefore denied mandamus 

as to those records. Huff did not appeal or cross-appeal to 

assign error to the court’s denial of mandamus regarding these 

records; therefore, the court’s denial of mandamus as to those 

records is affirmed and whether the records are exempt from 

disclosure is not at issue in this appeal.

The issues on appeal involve records for which the court 

granted a writ of mandamus. In his response to Huff’s request, 

Kapperman did not assert, and Brown does not argue on 

appeal, that these records were exempt from disclosure pursuant to a statutory exception. Instead, in his response to Huff’s 

request, Kapperman either (1) asserted that no responsive 

records existed or (2) acknowledged that the records existed 

but required the deposit of a fee before the records would be 

provided. The standard set forth above placing a burden on the 

public body to show by clear and convincing evidence that a 

record is exempt does not apply when the public body’s reason 

for denying a records request is not that the record is exempt 

from disclosure under a statutory exception. Instead, we have 

acknowledged:

Requiring the public body to demonstrate that an 

exception applies to the disclosure of a particular public 
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record does not, however, change the fact that it is the 

initial responsibility of the relator to demonstrate that the 

record in question is a public record within the meaning 

of § 84-712.01. Under § 84-712.03, a writ may be sought 

by “[a]ny person denied any rights granted by sections 

84-712 to 84-712.03 . . . .” In order to establish standing and jurisdiction, therefore, it must be shown that the 

party seeking mandamus has been denied rights under 

§ 84-712. A necessary component of this showing is that 

the party was seeking a record that is a “public record” 

within the meaning of § 84-712.01.

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

Neb. 784, 789-90, 587 N.W.2d 100, 105 (1998).

[6,7] The requesting party’s initial responsibility to demonstrate a prima facie claim for a writ of mandamus requiring 

release of public records must be understood in the context of 

general requirements for mandamus. Mandamus is a law action 

and is defined as an extraordinary remedy, not a writ of right, 

issued to compel the performance of a purely ministerial act 

or duty, imposed by law upon an inferior tribunal, corporation, 

board, or person, where (1) the relator has a clear right to the 

relief sought, (2) there is a corresponding clear duty existing 

on the part of the respondent to perform the act, and (3) there 

is no other plain and adequate remedy available in the ordinary 

court of law. State ex rel. Rhiley v. Nebraska State Patrol, 

301 Neb. 241, 917 N.W.2d 903 (2018). Therefore, under 

§ 84-712.03(1)(a), the requesting party’s initial responsibility 

includes demonstrating that the requested record is a public 

record that he or she has a clear right to access under the 

public records statutes and that the public body or custodian 

against whom mandamus is sought has a clear duty to provide 

such public records.

As noted above, the district court denied mandamus with 

regard to medical records the sheriff asserted were exempt 

from disclosure. The court also denied mandamus with regard 

to records regarding county officials other than the county 
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sheriff. Because Huff does not appeal or cross-appeal that ruling, the denial of mandamus as to those records is affirmed.

With Regard to Records for Which Sheriff Required 

a Deposit of Fees, Huff Failed to Show He Timely 

Responded to the Request and Therefore Failed 

to Show the Sheriff Had a Clear Duty to 

Provide Such Records.

As we have indicated above, the remaining issues on appeal 

relate to records with respect to which the court granted mandamus and that the sheriff asserts he has no duty to provide 

either because no such record existed or because the records 

existed but Huff did not timely respond to the sheriff’s request 

for a deposit of fees before the records would be provided.

We first address the records that in his response Kapperman 

acknowledged were in his possession but for which he required 

a deposit of fees before the request could be fulfilled. We 

determine that because Huff did not timely respond as required 

under § 84-712(4), the sheriff did not have a clear duty to provide the records and the court erred when it granted mandamus 

as to these records.

In his response to Huff’s request, Kapperman asserted that 

most of the requested records did not exist but he acknowledged that jail records relating to Huff as sought in request 

3 existed and were public records that could be provided to 

Huff. However, Kapperman estimated that “the inspection and 

copying of records would cost approximately $750.00,” and 

he therefore required from Huff “a deposit of $750.00 before 

fulfilling such a request.” We note that § 84-712(3)(b) provides 

in part that “the custodian of a public record may charge a fee 

for providing copies of such public record . . . , which fee shall 

not exceed the actual added cost of making the copies available.” Also, § 84-712(3)(f), which was cited by Kapperman in 

his response, provides that “[i]f copies requested in accordance 

with . . . this section are estimated by the custodian of such 

public records to cost more than fifty dollars, the custodian 
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may require the requester to furnish a deposit prior to fulfilling 

such request.”

Brown claims on appeal that the district court erred when 

it found that the sheriff had a duty to provide these records 

even after Huff failed to respond to Kapperman’s request for a 

deposit before providing the records. Brown cites § 84-712(4), 

which provides in relevant part that after the custodian has 

provided to the requester an estimate of the expected cost of 

the copies:

The requester shall have ten business days to review the 

estimated costs, including any special service charge, and 

request the custodian to fulfill the original request, negotiate with the custodian to narrow or simplify the request, 

or withdraw the request. If the requester does not respond 

to the custodian within ten business days, the custodian 

shall not proceed to fulfill the request.

Kapperman’s response to Huff’s request was dated October 

2, 2018. Huff does not assert, and there is nothing in the record 

that indicates, that within 10 business days thereafter, Huff 

either requested Kapperman to fulfill the original request, 

attempted to negotiate with Kapperman to narrow or simplify 

the request, or withdrew his request. Instead, on October 15, 

Huff filed a petition for a writ of mandamus in the district 

court. Brown argues that because Huff did not respond within 

10 business days in one of the ways set forth in § 84-712(4), 

and because the statute provides that in such circumstance, “the 

custodian shall not proceed to fulfill the request,” the sheriff no longer had a duty to fulfill the request. We agree with 

the sheriff.

Huff attached to his petition copies of his request and 

Kapperman’s response. Huff did not assert in his petition that 

he had responded within 10 business days to Kapperman’s 

request for a deposit of fees; nor did he attach a copy of any 

such response. The only additional evidence Huff offered at 

the hearing was his affidavit, in which he made no assertion that he had timely responded. Without a response, under 
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§ 84-712(4), Kapperman was no longer under a duty to fulfill 

the request for jail records. Therefore, we determine that with 

respect to these records, Huff failed his initial responsibility to 

demonstrate that he had been denied access to the public record 

as guaranteed by § 84-712, because he failed to demonstrate 

that the sheriff had a clear duty under § 84-712 to fulfill the 

request. See Russell v. Clarke, 15 Neb. App. 221, 724 N.W.2d 

840 (2006) (affirming denial of petition for writ of mandamus 

where evidence established that there were no public records 

maintained by custodian other than those of which copies were 

provided or of which custodian offered to provide copies upon 

payment of reasonable expense of copying, and requester failed 

to adduce evidence to contrary).

We note in connection with this request that in his petition, 

Huff asserted that Kapperman was “charging [an] amount more 

than what it would cost to copy these records.” However, Huff 

did not assert a factual basis to support his claim of unreasonableness; nor did he present evidence to show that the $750 

requested by Kapperman exceeded the reasonable expense of 

copying. There was no showing indicating the volume of documents requested and therefore no way to determine whether 

$750 was a reasonable cost, and in addition, the district court 

made no finding that the requested fee was excessive or unreasonable. Instead, in its order, the court stated that § 84-712(3)(f) 

“authorized the deposit requested by the sheriff.” Although the 

court thereafter determined that the fee should be waived, such 

determination was based on Huff’s inability to pay rather than 

the reasonableness of the fee. Because the sheriff has been 

relieved of his duty, if any, to provide records encompassed 

by request 3, we do not comment on the court’s ruling that the 

fees provided for in § 84-712(3)(f) can be waived. Compare 5 

U.S.C. § 552(a)(4)(A) (2018) (providing for statutory waiver 

of fee).

On the record before the district court, Huff did not show 

a clear duty on the part of the sheriff as custodian of the jail 

records to provide the records which the sheriff offered to 
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HUFF v. BROWN

Cite as 305 Neb. 648

provide upon a deposit of fees. We therefore conclude that the 

court abused its discretion when it granted mandamus as to 

those records.

Huff Failed to Demonstrate That Sheriff Had 

a Clear Duty to Provide Records That 

Sheriff Asserted Did Not Exist.

Regarding the majority of the records requested by Huff, 

the sheriff responded that no responsive records existed. The 

district court granted mandamus with regard to those requests 

encompassed by this response under the reasoning that such 

records were records “‘of or belonging to’” the sheriff because 

the sheriff was “‘entitled to possess’” the records. We determine that the court misapplied this court’s precedent in reaching that conclusion, and we conclude that Huff failed to 

establish as a prima face case that the requested records were 

records that the sheriff had a clear duty to provide.

The record from the district court does not contain evidence 

to support a finding that the sheriff was the custodian of the 

requested records. As noted above, Huff attached to his petition Kapperman’s response in which Kapperman asserted that 

as to most of Huff’s requests, “no responsive records exist.” 

In his pleadings and in his affidavit, Huff made generalized 

allegations that Kapperman was withholding records and not 

fulfilling his duty. But there was no other evidence to establish 

that the sheriff was the custodian of the requested records. In 

its order, the court does not explicitly find that the sheriff was 

being untruthful and that the requested records were actually 

in his possession. Instead, the court reasoned that the sheriff 

was required to provide the records to Huff because the sheriff was “‘entitled to possess’” the records.

For purposes of the public records statutes, § 84-712.01(1) 

defines “public records” to “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, 
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bureau, commission, council, subunit, or committee of any of 

the foregoing.” In its order in this case, the district court cited 

Evertson v. City of Kimball, 278 Neb. 1, 9, 767 N.W.2d 751, 

759 (2009), in which we stated that this definition “does not 

require a citizen to show that a public body has actual possession of a requested record” and we liberally construed the 

“‘of or belonging to’” language of § 84-712.01(1) to include 

“any documents or records that a public body is entitled to possess—regardless of whether the public body takes possession.” 

We stated that “[t]he public’s right of access should not depend 

on where the requested records are physically located.” Id. The 

district court in its order interpreted Evertson “to require the 

custodian who receives a public records request to examine 

each of the requests to determine whether, as a custodian in 

the public body to which the request is directed, he or she is 

‘entitled to possess the document’ requested.” The court then 

categorized the records requested by Huff as those that the 

sheriff “presumptively appears to be entitled to possess” and 

those “which it appears the sheriff may not be entitled to possess.” As to each category, the court required the sheriff to 

investigate whether he was entitled to possess the requested 

documents and either provide the documents, explain why he 

could not possess them, or identify any other custodian the 

sheriff believed to be entitled to possess the records.

We determine that the district court read Evertson too 

broadly. In Evertson, the city’s mayor had commissioned an 

investigation by a private entity and two citizens requested 

from the city a written report that was in the possession of 

the private entity. Although we ultimately concluded that the 

record was exempt from production based on a statutory exception, as a preliminary step we determined that the report was 

a “public record” under § 84-712.01 even though the city had 

declined to take possession. In reaching that conclusion, we 

set forth the language relied on by the district court to the 

effect that public records include documents the public body is 

entitled to possess.
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However, Evertson must be understood in the context of a 

request for documents in the possession of a private entity. In 

Evertson, we set forth tests for determining whether records 

in the possession of a private party are public records subject to disclosure, and such tests generally focused on the 

public body’s delegation to a private entity of its authority 

to perform a government function and the preparation of the 

records as part of such delegation of authority. Thus, it was in 

the context involving the public body’s access to documents 

in the possession of a private entity that the “entitled to possess” language in Evertson, 278 Neb. at 9, 767 N.W.2d at 

759, emerged.

In the present case, Huff did not assert, and there is no indication from the record, that any of the documents requested 

by Huff were in the possession of a private entity to whom 

the sheriff had delegated authority to perform a function of 

the sheriff’s office. The court made general findings that the 

requested records were records that the sheriff appeared to 

be entitled to possess; however, the court made no indication 

whether it thought that, contrary to the response that no responsive records existed, the records were actually in the sheriff’s 

possession or whether it thought the sheriff could obtain the 

records from some other unspecified custodian pursuant to 

some unspecified authority. Huff presented no evidence to contradict the sheriff’s response or to establish that the sheriff was 

the custodian of the requested records.

The sheriff argued at the hearing that the records at issue 

were “not items that are kept by the sheriff’s department” and 

that instead, the custodians of certain requested records may 

have been other county officers such as the county attorney 

or the county clerk. Therefore, it is possible the court may 

have determined that the sheriff was “entitled to possess” such 

records in the performance of his duties because the sheriff 

could request the other county officers to provide the records. 

See Evertson v. City of Kimball, 278 Neb. 1, 9, 767 N.W.2d 

751, 759 (2009). But we do not think that Evertson should 
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HUFF v. BROWN

Cite as 305 Neb. 648

be extended to apply to records normally in the possession of 

other governmental custodians. Although the sheriff may be 

able to request records from another county office, it does not 

mean they are records “of or belonging to” the sheriff; instead, 

they are records “of or belonging to” the other county office. 

See § 84-712.01.

The public records statutes are directed to “the custodian” of 

a requested public record, see § 84-712, and the duties imposed 

thereunder on a specific custodian relate only to the public 

records of which that specific office or person is the custodian. 

A specific custodian only has a clear duty under the public 

records statutes to provide the public records of which he or 

she is custodian. It is the obligation of the person requesting a 

record to determine the proper custodian and to make a request 

of that person or office.

The record of proceedings in this case is that in his response, 

the sheriff asserted that as to most of Huff’s requests, no 

responsive records existed. The only evidence presented by 

Huff was his affidavit in which he made general allegations 

that the sheriff failed to comply with his requests. But there 

is no evidence to support a showing that the sheriff was in 

fact custodian of any of the records at issue, and therefore, 

Huff failed to make a prima facie showing that the sheriff had 

a clear duty under the public records statutes to provide the 

records. Although other county officers may have been custodians of the requested records, the public records statutes did 

not impose a duty on the sheriff to obtain those records on 

Huff’s behalf.

For completeness, we note that in another request subsequent to request 3, Huff sought the criminal history records 

of various individuals such as jurors and attorneys. Neb. 

Rev. Stat. § 29-3520 (Reissue 2016) provides in part that 

“[c]omplete criminal history record information maintained 

by a criminal justice agency shall be a public record open to 

inspection and copying by any person during normal business hours and at such other times as may be established by 
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Cite as 305 Neb. 648

the agency maintaining the record.” Further, Neb. Rev. Stat. 

§ 29-3522 (Reissue 2016) states that if the requested criminal 

justice history record is not in the custody or control of the 

person to whom the request is made, such person shall notify 

the requester and state the agency, if known, which has custody 

or control of the record in question. In this case, the sheriff 

responded to this request by asserting “no responsive records 

exist.” With respect to Huff’s request for criminal histories, we 

read this response as being both that the sheriff did not have 

custody of such records and that the sheriff was not aware of 

any requested criminal histories that were in the custody and 

control of another agency. Although on this record as a whole, 

the sheriff has broadly addressed the concerns reflected in 

§§ 29-3520 and 29-3522, the better practice going forward 

when responding to a request for criminal history record information is an initial twofold response containing both an answer 

to whether the responder has custody and control of the information sought and, if not, which agency, if known, has custody 

or control of the record in question or an explicit statement 

that the responder is not aware of any criminal history in the 

custody of another agency.

We further note, with respect to Huff’s requests for documents other than criminal histories, that the public records 

statutes do not include a requirement similar to that in 

§ 29-3522 for a custodian to inform the requester of another 

agency that has custody or control of the record requested. 

Therefore, to the extent the district court’s mandamus ordered 

the sheriff to provide such information with regard to records 

other than criminal histories, the sheriff had no clear duty to 

do so.

We conclude that the district court abused its discretion 

when it granted the writ of mandamus as to the records for 

which the sheriff has responded that no responsive records 

exist. Because we conclude that Huff did not establish a prima 

facie case that he was denied public records that the sheriff 

had a clear duty to provide, we reverse the portions of the 
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order granting mandamus. We therefore need not consider 

Brown’s remaining assignments of error.

CONCLUSION

We conclude that the district court did not err when it 

allowed Brown’s name to be substituted for Kapperman’s, 

because the present action was directed to the office of the 

sheriff of Furnas County. With regard to the merits of Huff’s 

petition for a writ of mandamus, to the extent the district 

court denied Huff’s petition in part, we affirm such denial. To 

the extent the district court granted the remainder of Huff’s 

petition and issued mandamus, we conclude that Huff failed 

to demonstrate a prima facie case that he had been denied a 

request for public records that the sheriff had a clear duty to 

provide under § 84-712. We therefore reverse the order to the 

extent the court granted mandamus, and we remand the matter 

with directions to the district court to deny Huff’s petition for 

a writ of mandamus in its entirety.

Affirmed in part, and in part 

reversed and remanded.

Freudenberg, J., not participating.