LB366 LB366
2023 2023
LEGISLATURE OF NEBRASKA
ONE HUNDRED EIGHTH LEGISLATURE
FIRST SESSION
LEGISLATIVE BILL 366
Introduced by Conrad, 46.
Read first time January 12, 2023
Committee: Government, Military and Veterans Affairs
1 A BILL FOR AN ACT relating to public records; to amend sections 84-712,
2 84-712.01, and 84-712.07, Reissue Revised Statutes of Nebraska, and
3 sections 81-1454, 84-712.03, and 84-712.05, Revised Statutes
4 Cumulative Supplement, 2020; to provide that recordings from body-
5 worn cameras of peace officers depicting the death of a person being
6 apprehended or in custody are public records; to change public
7 records provisions relating to residents, nonresidents, fees, and
8 remedies; to define a term; and to repeal the original sections.
9 Be it enacted by the people of the State of Nebraska,
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1 Section 1. Section 81-1454, Revised Statutes Cumulative Supplement,
2 2022, is amended to read:
3 81-1454 (1) A body-worn camera policy required by section 81-1453
4 shall include provisions which govern the use of body-worn cameras by
5 peace officers and the retention and disposition of recordings created
6 with such cameras by law enforcement agencies. Such body-worn camera
7 policy shall include, but not be limited to:
8 (a) (1) A requirement that training be provided to any peace officer
9 who will use a body-worn camera and to any other employee who will come
10 into contact with video or audio data recorded by a body-worn camera;
11 (b) (2) A requirement that recordings created by body-worn cameras
12 shall be retained for a minimum period of ninety days from the date of
13 recording. Such recordings shall be retained for more than ninety days if
14 required by the following circumstances:
15 (i) (a) Upon notice to the law enforcement agency of a criminal or
16 civil court proceeding in which the recording may have evidentiary value
17 or in which the recording is otherwise involved, the recording shall be
18 retained until final judgment has been entered in the proceeding;
19 (ii) (b) Upon notice to the law enforcement agency of a disciplinary
20 proceeding against an employee of the agency in which the recording may
21 have evidentiary value or in which the recording is otherwise involved,
22 the recording shall be retained until a final determination has been made
23 in such proceeding; and
24 (iii) (c) If the recording is part of a criminal investigation that
25 has not resulted in an arrest or prosecution, the recording shall be
26 retained until the investigation is officially closed or suspended; and
27 (c) (3) A procedure governing the destruction of recordings after
28 the retention period described in subdivision (1)(b) (2) of this section
29 has elapsed.
30 (2) Recordings created by body-worn cameras which depict or record
31 circumstances in which a person died while being apprehended by, or while
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1 in the custody of, a law enforcement officer or detention personnel,
2 including duplicates of such recordings, are public records under section
3 84-712.01.
4 Sec. 2. Section 84-712, Reissue Revised Statutes of Nebraska, is
5 amended to read:
6 84-712 (1) Except as otherwise expressly provided by statute, all
7 residents citizens of this state and all other persons interested in the
8 examination of the public records as defined in section 84-712.01 are
9 hereby fully empowered and authorized to (a) examine such records, and
10 make memoranda, copies using their own copying or photocopying equipment
11 in accordance with subsection (2) of this section, and abstracts
12 therefrom, all free of charge, during the hours the respective offices
13 may be kept open for the ordinary transaction of business and (b) except
14 if federal copyright law otherwise provides, obtain copies of public
15 records in accordance with subsection (3) of this section during the
16 hours the respective offices may be kept open for the ordinary
17 transaction of business.
18 (2) Copies made by residents citizens or other persons using their
19 own copying or photocopying equipment pursuant to subdivision (1)(a) of
20 this section shall be made on the premises of the custodian of the public
21 record or at a location mutually agreed to by the requester and the
22 custodian.
23 (3)(a) Copies may be obtained pursuant to subdivision (1)(b) of this
24 section only if the custodian has copying equipment reasonably available.
25 Such copies may be obtained in any form designated by the requester in
26 which the public record is maintained or produced, including, but not
27 limited to, printouts, electronic data, discs, tapes, and photocopies.
28 This section shall not be construed to require a custodian to copy any
29 public record that is available to the requester on the custodian's
30 website on the Internet. The custodian of the public record is required
31 to provide the location of the public record on the Internet to the
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1 requester. If the requester does not have reasonable access to the
2 Internet due to lack of computer, lack of Internet availability, or
3 inability to use a computer or the Internet, the custodian shall produce
4 copies for the requester as provided in this section.
5 (b) Except as otherwise provided by statute, the public body, public
6 entity, or public official which is the custodian of a public record may
7 charge a fee for providing copies of such public record pursuant to
8 subdivision (1)(b) of this section, which fee shall not exceed the actual
9 added cost of making the copies available. For purposes of this
10 subdivision, (i) for photocopies, the actual added cost of making the
11 copies available shall not exceed the amount of the reasonably calculated
12 actual added cost of the photocopies, which may include a reasonably
13 apportioned cost of the supplies, such as paper, toner, and equipment,
14 used in preparing the copies, as well as any additional payment
15 obligation of the custodian for time of contractors necessarily incurred
16 to comply with the request for copies, (ii) for printouts of computerized
17 data on paper, the actual added cost of making the copies available shall
18 include the reasonably calculated actual added cost of computer run time
19 and the cost of materials for making the copy, and (iii) for electronic
20 data, the actual added cost of making the copies available shall include
21 the reasonably calculated actual added cost of the computer run time, any
22 necessary analysis and programming by the public body, public entity,
23 public official, or third-party information technology services company
24 contracted to provide computer services to the public body, public
25 entity, or public official, and the production of the report in the form
26 furnished to the requester.
27 (c) For residents of Nebraska, the The actual added cost used as the
28 basis for the calculation of a fee for records shall not include any
29 charge for the existing salary or pay obligation to the public officers
30 or employees with respect to the first eight four cumulative hours of
31 searching, identifying, physically redacting, or copying. A special
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1 service charge reflecting the calculated labor cost may be included in
2 the fee for time required in excess of eight four cumulative hours, since
3 that large of a request may cause some delay or disruption of the other
4 responsibilities of the custodian's office, except that the fee for
5 records shall not include any charge for the services of an attorney or
6 any other person to review the requested public records seeking a legal
7 basis to withhold the public records from the public. No special service
8 charge or fee shall be charged for copies of blank forms or pages that
9 have all meaningful information redacted.
10 (d) For nonresidents of Nebraska, the actual added cost used as the
11 basis for the calculation of a fee for records may include a charge for
12 the proportion of the existing salary or pay obligation to the public
13 officers or employees, including a proportional charge for the services
14 of an attorney to review the requested public records for the time spent
15 searching, identifying, physically redacting, copying, or reviewing such
16 records.
17 (e) (d) State agencies which provide electronic access to public
18 records through a portal established under section 84-1204 shall obtain
19 approval of their proposed reasonable fees for such records pursuant to
20 sections 84-1205.02 and 84-1205.03, if applicable, and the actual added
21 cost of making the copies available may include the approved fee for the
22 portal.
23 (f) (e) This section shall not be construed to require a public body
24 or custodian of a public record to produce or generate any public record
25 in a new or different form or format modified from that of the original
26 public record.
27 (g) (f) If copies requested in accordance with subdivision (1)(b) of
28 this section are estimated by the custodian of such public records to
29 cost more than fifty dollars, the custodian may require the requester to
30 furnish a deposit prior to fulfilling such request.
31 (h) The custodian may waive or reduce any fee described in this
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1 section if the waiver or reduction of the fee would be in the public
2 interest. Disclosure is in the public interest if it is likely to
3 contribute to the understanding of the operations or activities of
4 government and is not primarily in the commercial interest of the person
5 requesting such records.
6 (4) Upon receipt of a written request for access to or copies of a
7 public record, the custodian of such record shall provide to the
8 requester as soon as is practicable and without delay, but not more than
9 four business days after actual receipt of the request, an estimate of
10 the expected cost of the copies and either (a) access to or, if copying
11 equipment is reasonably available, copies of the public record, (b) if
12 there is a legal basis for denial of access or copies, a written denial
13 of the request together with the information specified in section
14 84-712.04, or (c) if the entire request cannot with reasonable good faith
15 efforts be fulfilled within four business days after actual receipt of
16 the request due to the significant difficulty or the extensiveness of the
17 request, a written explanation, including the earliest practicable date
18 for fulfilling the request, an estimate of the expected cost of any
19 copies, and an opportunity for the requester to modify or prioritize the
20 items within the request. Such estimate shall be provided to the
21 requester in writing and such written estimate shall be attested to under
22 oath by the custodian of the public records. The requester shall have ten
23 business days to review the estimated costs, including any special
24 service charge, and request the custodian to fulfill the original
25 request, negotiate with the custodian to narrow or simplify the request,
26 or withdraw the request. If the requester does not respond to the
27 custodian within ten business days, the custodian shall not proceed to
28 fulfill the request. The four business days shall be computed by
29 excluding the day the request is received, after which the designated
30 period of time begins to run. Business day does not include a Saturday, a
31 Sunday, or a day during which the offices of the custodian of the public
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1 records are closed.
2 (5) For purposes of sections 84-712 to 84-712.09, resident means a
3 person domiciled in this state and includes news media without regard to
4 domicile.
5 Sec. 3. Section 84-712.01, Reissue Revised Statutes of Nebraska, is
6 amended to read:
7 84-712.01 (1) Except when any other statute expressly provides that
8 particular information or records shall not be made public, public
9 records shall include all records and documents, regardless of physical
10 form, of or belonging to this state, any county, city, village, political
11 subdivision, or tax-supported district in this state, or any agency,
12 branch, department, board, bureau, commission, council, subunit, or
13 committee of any of the foregoing. Data which is a public record in its
14 original form shall remain a public record when maintained in computer
15 files.
16 (2) When a custodian of a public record of a county provides to a
17 member of the public, upon request, a copy of the public record by
18 transmitting it from a modem to an outside modem, a reasonable fee may be
19 charged for such specialized service. Such fee may include a reasonable
20 amount representing a portion of the amortization of the cost of computer
21 equipment, including software, necessarily added in order to provide such
22 specialized service. This subsection shall not be construed to require a
23 governmental entity to acquire computer capability to generate public
24 records in a new or different form when that new form would require
25 additional computer equipment or software not already possessed by the
26 governmental entity.
27 (3) Sections 84-712 to 84-712.03 shall be liberally construed
28 whenever any state, county, or political subdivision fiscal records,
29 audit, warrant, voucher, invoice, purchase order, requisition, payroll,
30 check, receipt, or other record of receipt, cash, or expenditure
31 involving public funds is involved in order that the residents citizens
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1 of this state shall have the full right to know of and have full access
2 to information on the public finances of the government and the public
3 bodies and entities created to serve them.
4 Sec. 4. Section 84-712.03, Revised Statutes Cumulative Supplement,
5 2022, is amended to read:
6 84-712.03 (1) Any person denied any rights granted by sections
7 84-712 to 84-712.03 may elect to:
8 (a) File for speedy relief by a writ of mandamus in the district
9 court within whose jurisdiction the state, county, or political
10 subdivision officer who has custody of the public record can be served;
11 or
12 (b) Petition the Attorney General to review the matter to determine
13 whether a record may be withheld from public inspection or whether the
14 public body that is custodian of such record has otherwise failed to
15 comply with such sections, including whether the fees estimated or
16 charged by the custodian are actual added costs or special service
17 charges as provided under section 84-712. This determination shall be
18 made within fifteen calendar days after the submission of the petition.
19 If the Attorney General determines that the record may not be withheld or
20 that the public body is otherwise not in compliance, the public body
21 shall be ordered to disclose the record immediately or otherwise comply.
22 If the public body continues to withhold the record or remain in
23