Evertson v. City of Kimball

()
Bruce evertson and P erry van newkirk , aPPellees ,
v. the city of kimBall et al ., aPPellants.
767 N.W.2d 75
Filed July 2, 2009. 	No. S-08-524.
. Justiciable Issues. Justiciability issues that do not involve a factual dispute pre-
sent a question of law.
2. Statutes. Statutory interpretation is a question of law.
3. Appeal and Error. An appellate court resolves questions of law independently of
the determination reached by the court below.
4. Mandamus: Words and Phrases. Mandamus is a law action and is defined as an
extraordinary remedy, not a writ of right.
5. 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. An appellate court will not dis-
turb those findings unless they are clearly erroneous.
6. Mandamus. Whether to grant a writ of mandamus is within the trial court’s
discretion.
7. Moot Question. A case becomes moot when the issues initially presented in
litigation cease to exist or the litigants lack a legally cognizable interest in the
litigation’s outcome.
8. Moot Question: Jurisdiction: Appeal and Error. Although mootness does not
prevent appellate jurisdiction, it is a justiciability doctrine that can prevent courts
from exercising jurisdiction.
9. Moot Question: Appeal and Error. Under the public interest exception to the
mootness doctrine, an appellate court may review an otherwise moot case if it
involves a matter affecting the public interest or when other rights or liabilities
may be affected by its determination.
0. ____: ____. When determining whether a case involves a matter of public inter-
est, an appellate court considers () the public or private nature of the question
presented, (2) the desirability of an authoritative adjudication for future guidance
of public officials, and (3) the likelihood of future recurrence of the same or a
similar problem.
. Mandamus: Proof. A party seeking a writ of mandamus under Neb. Rev. Stat.
§ 84-72.03 (Reissue 2008) has the burden to satisfy three elements: () The
requesting party is a citizen of the state or other person interested in the examina-
tion of the public records; (2) the document sought is a public record as defined
cASeS deTeRMINed
IN The
SUPReMe cOURT OF NebRASkA
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

by Neb. Rev. Stat. § 84-72.0 (Reissue 2008); and (3) the requesting party has
been denied access to the public record as guaranteed by Neb. Rev. Stat. § 84-72
(Reissue 2008).
2. ____: ____. If the requesting party satisfies its prima facie claim for release of
public records, the public body opposing disclosure must show by clear and con-
vincing evidence that Neb. Rev. Stat. § 84-72.05 or § 84-72.08 (Reissue 2008)
exempts the records from disclosure.
3. Records: Words and Phrases. Neb. Rev. Stat. § 84-72.0 (Reissue 2008)
does not require a citizen to show that a public body has actual possession of
a requested record. This broad definition includes any documents or records
that a public body is entitled to possess, regardless of whether the public body
takes possession.
4. Records: Proof. Under Neb. Rev. Stat. § 84-72.0 (Reissue 2008), requested
materials in a private party’s possession are public records if the following
requirements are met: () The public body, through a delegation of its authority
to perform a government function, contracted with a private party to carry out a
government function; (2) the private party prepared the records under the public
body’s delegation of authority; (3) the public body was entitled to possess the
materials to monitor the private party’s performance; and (4) the records are used
to make a decision affecting public interest.
5. Statutes: Records: Appeal and Error. An appellate court must narrowly con-
strue statutory exemptions shielding public records from disclosure.
6. Records: Police Officers and Sheriffs: Intent. Neb. Rev. Stat. § 84-72.05(5)
(Reissue 2008) applies only to investigations or examinations for the purpose of
performing adjudicatory or law enforcement functions.
7. Records: Public Officers and Employees: Intent. Neb. Rev. Stat. § 84-72.05(5)
(Reissue 2008) applies to an investigation of a public body’s employees only if
the investigation focuses on specifically alleged illegal acts.
8. Attorney Fees: Appeal and Error. An appellate court will affirm a trial court’s
decision awarding or denying attorney fees absent an abuse of discretion.
9. ____: ____. A party may recover attorney fees and expenses in a civil action only
when a statute permits recovery or when the Nebraska Supreme court has recog-
nized and accepted a uniform course of procedure for allowing attorney fees.
Appeal from the district court for kimball county: kristine
r. cecava, Judge. Affirmed in part, and in part reversed and
remanded with directions.
Randall L. Goyette and Andrea d. Snowden, of baylor,
evnen, curtiss, Grimit & Witt, L.L.P., for appellants.
donald J.b. Miller, of Matzke, Mattoon & Miller, L.L.c.,
L.L.O., for appellees.
William F. Austin, of erickson & Sederstrom, P.c., for
amicus curiae League of Nebraska Municipalities.
2 	278 NebRASkA RePORTS

heavican, 	c.J., 	wright, 	connolly, 	gerrard, 	stePhan,
mccormack , and miller-lerman, JJ.
connolly, J.
I. SUMMARY
After 	receiving 	complaints 	alleging 	that 	police 	officers
in 	kimball, 	Nebraska, 	were 	engaged 	in 	racially 	profiling
hispanics, the mayor hired a private investigator to investi-
gate. Later, the appellees, kimball citizens bruce evertson and
Perry Van Newkirk, brought a mandamus action to compel the
city of kimball, its mayor, and its city clerk (collectively the
city) to disclose the investigative report. The city refused. It
claimed that the report was verbal and that it had not paid for
or requested a written report. It also claimed that it did not
have to disclose any materials because the records fell within
exemptions under the public records statutes. The district
court disagreed and ordered the city to disclose the records
as redacted.
This appeal presents two questions:
. do a private investigator’s written data and reports con-
stitute public records under § 84-72.0 when the public body
contractually delegated its investigative authority to the pri-
vate investigators?
2. Are these requested materials, even if public records,
exempt from disclosure under three separate provisions of
§ 84-72.05?
II. bAckGROUNd
In July 2005, Gregory Robinson, the mayor of kimball,
attended a meeting with members of Forward kimball Industries,
a private economic development corporation. At the meeting,
members complained that the city’s police department was tar-
geting the members’ hispanic or minority employees. Newkirk
and evertson were business partners; evertson attended the
meeting. Most of the complaints focused on Officer Sharon
Lewis, and the members demanded that Robinson terminate
Lewis’ employment.
 Neb. Rev. Stat. §§ 84-72 to 84-72.09 (Reissue 2008).
eVeRTSON v. cITY OF kIMbALL 	3
cite as 278 Neb. 

because of the complaints made at the meeting, Robinson
put Lewis on administrative leave and decided to investigate.
The Nebraska State Patrol declined to conduct the investiga-
tion, and Robinson did not ask the sheriff’s office because
he wanted an independent investigator from outside the city.
So Robinson hired Robert Miller, an attorney and investiga-
tor from colorado. Miller then hired bill Tidyman and Aaron
Sanchez to help.
Robinson instructed the investigators to mainly investigate
the specific allegations against Lewis and also to review the
police department’s 	treatment 	of 	minorities. In November
2005, Robinson and the city attorney met with the investiga-
tors. The team’s verbal report confirmed some earlier allega-
tions. The verbal report resulted in the city’s terminating
Lewis’ employment. Robinson stated that he had not seen, nor
did the investigation team give him, any notes or copies. And
Robinson declined to order a final written report documenting
the team’s recommendations. he stated that the report would
have cost $5,000 to $6,000 and that the investigation costs had
already exceeded expectations. The city paid about $26,000
for the investigation.
The appellees knew from conversations with Sanchez that he
was preparing a report for Tidyman. The appellees demanded
a copy of the Tidyman report, in part, to defend themselves
against Lewis’ federal lawsuit. The suit alleged a conspiracy
to terminate Lewis’ employment, and the appellees believed
that the report would show that no conspiracy existed. The
city responded that no report meeting the appellees’ descrip-
tion existed.
1. aPPellees file a mandamus P etition
In March 2006, the appellees sought a writ of mandamus
ordering the city to disclose the Tidyman report. The city
answered that it had only a verbal report and that it had not
requested or paid for a written report. It also affirmatively
alleged exemptions under § 84-72.05(4), (5), and (7) of the
public records statutes.
Later, in response to a deposition subpoena, Tidyman elected
to file with the court the sealed documents in his possession
4 	278 NebRASkA RePORTS

and an accompanying affidavit. The court had ordered the
investigators to seal any discovered reports and submit them to
the court. It further ordered that the parties should not review
them until the court decided whether to order disclosure.
At trial on the mandamus petition, the court stated that
Tidyman’s submitted documents contained his interview notes
that he had typed for Miller but did not include a report that
he would have provided to the city. Later, the appellees dis-
covered that Sanchez had produced a final written report for
Miller. his report summarized his findings based on 30 or more
interviews and the city’s arrest statistics. he agreed to mail his
sealed report to the court for review.
2. court determines that documents
are P uBlic records
In January 2008, the court issued an order directing the city
to produce the Sanchez report. It found that Miller had hired
Tidyman & Associates to conduct the investigation and that
Tidyman & Associates had hired Sanchez to do the interview-
ing. The court further found that because of their investigation,
the city terminated Lewis’ employment. The court also found
that the city had falsely asserted that no written report existed.
The court noted that the documents were produced as part of
the investigation. It stated that the city had paid for the inves-
tigative documents, received the information, and knew that
the documents existed. It concluded that the documents were
therefore public records and that none of the raised statutory
exemptions applied.
3. court P uBlicizes sanchez rePort in its order
to disclose and gives aPPellees
access to all documents
The court ordered the city to produce Sanchez’ written
report. It also redacted names from the Sanchez report and
attached it to its order. It also ordered that upon request, the
appellees and their counsel could review in chambers other
documents submitted by Tidyman and Sanchez, because Lewis
had sued them in an action arising from the facts surrounding
the investigation. Following this order, the court granted the
appellees’ motion for attorney fees.
eVeRTSON v. cITY OF kIMbALL 	5
cite as 278 Neb. 

III. ASSIGNMeNTS OF eRROR
The city assigns that the district court erred in () deter-
mining that the documents the appellees sought were public
records belonging to the city; (2) failing to determine that
§ 84-72.05(4), (5), and (7) exempted the documents from
disclosure; and (3) awarding attorney fees and finding that
$23,92.5 in attorney fees was a reasonable amount.
IV. STANdARd OF ReVIeW
[-3] Justiciability issues that do not involve a factual dis-
pute present a question of law.2 And statutory interpretation is
a question of law.3 We resolve questions of law independently
of the determination reached by the court below.4
[4-6] Mandamus is a law action, and we have defined it as
an extraordinary remedy, not a writ of right.5 In a bench trial
of a law action, the trial court’s factual findings have the effect
of a jury verdict. We will not disturb those findings unless they
are clearly erroneous.6 Whether to grant a writ of mandamus is
within the trial court’s discretion.7
V. ANALYSIS
1. mootness
The appellees contend that the court’s order that disclosed
the investigative materials renders the appeal moot because the
court published the contents of the Sanchez report and granted
them access to the other requested documents. They contend
that the public interest exception to the mootness doctrine does
not apply because the recurrence of this fact will likely not
occur again. The city disagrees. It contends that we have an
2 See In re Interest of Anaya, 276 Neb. 825, 758 N.W.2d 0 (2008).
3 In re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009).
4 See Pennfield Oil Co. v. Winstrom, 276 Neb. 23, 752 N.W.2d 588
(2008).
5 See State ex rel. Johnson v. Gale, 273 Neb. 889, 734 N.W.2d 290 (2007).
6 See, Albert v. Heritage Admin. Servs., 277 Neb. 404, 763 N.W.2d 373
(2009); Krolikowski v. Nesbitt, 257 Neb. 42, 598 N.W.2d 45 (999).
7 See State ex rel. Steinke v. Lautenbaugh, 263 Neb. 652, 642 N.W.2d 32
(2002).
6 	278 NebRASkA RePORTS

opportunity to prevent further disclosure of these records and
give guidance to public bodies faced with similar requests.
They argue we should apply the public interest exception.
[7,8] A case becomes moot when the issues initially pre-
sented in litigation cease to exist or the litigants lack a legally
cognizable 	interest 	in 	the 	litigation’s 	outcome.8 Although
mootness does not prevent appellate jurisdiction, it is a jus-
ticiability doctrine that can prevent courts from exercising
jurisdiction.9
[9,0] but under the public interest exception, we may
review an otherwise moot case if it involves a matter affecting
the public interest or when other rights or liabilities may be
affected by its determination.0 And when determining whether
a case involves a matter of public interest, we consider () the
public or private nature of the question presented, (2) the desir-
ability of an authoritative adjudication for future guidance of
public officials, and (3) the likelihood of future recurrence of
the same or a similar problem.
This appeal presents valid reasons for applying the public
interest exception. As these facts show, we can foresee a public
body hiring a private investigator to conduct an internal inves-
tigation of its officials’ or employees’ activities to eliminate
any appearance of impartiality. Giving guidance to courts and
public bodies for future cases warrants our review of the issues.
Thus, the case falls within the public interest exception.
2. Burdens of P roof
[,2] A party seeking a writ of mandamus under § 84-72.03
has the burden to satisfy three elements: () 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 § 84-72.0; and (3) the requesting
party has been denied access to the public record as guaranteed
8 See In re Interest of Taylor W., 276 Neb. 679, 757 N.W.2d  (2008).
9 See id.
0 In re Interest of Anaya, supra note 2.
 Id.
eVeRTSON v. cITY OF kIMbALL 	7
cite as 278 Neb. 

by § 84-72.2 If the requesting party satisfies its prima facie
claim for release of public records, the public body opposing
disclosure must show by clear and convincing evidence that
§ 84-72.05 or § 84-72.08 exempts the records from disclo-
sure.3 Regarding the appellees’ burden of proof as the request-
ing parties, the parties dispute only the second element.
3. what constitutes a P uBlic record?
The city contends that the court erred in finding that the
documents sought by the appellees were public records. It
argues that the evidence showed that the documents did not
belong to the city. It mainly relies on Forsham v. Harris,4 a
U.S. Supreme court decision applying the federal Freedom of
Information Act (FOIA).5 Under Forsham and other Supreme
court interpretations of the federal act, an agency must create
the records or exercise its right to obtain them before a request-
ing party can obtain an order for disclosure.
The appellees counter that they can distinguish Forsham.
They contend that physical possession presents only one fac-
tor indicating ownership of records. They argue that requir-
ing physical possession would permit governmental entities
to easily avoid disclosing records by simply declining to take
possession of them. So the initial question we address is
whether Nebraska’s statutes require physical possession of the
requested materials.
(a) Nebraska’s definition
of Public Records
Section 84-72.0() 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
2 See State ex rel. Neb. Health Care Assn. v. Dept. of Health, 255 Neb. 784,
587 N.W.2d 00 (998).
3 See id.
4 Forsham v. Harris, 445 U.S. 69, 00 S. ct. 977, 63 L. ed. 2d 293
(980).
5 See 5 U.S.c. § 552 (2006).
8 	278 NebRASkA RePORTS

tax-supported district in this state, or any agency, branch,
department, board, bureau, commission, council, subunit,
or committee of any of the foregoing. data which is a
public record in its original form shall remain a public
record when maintained in computer files.
The reference to “data” in the last sentence shows that the
Legislature intended public records to include a public body’s
component information, not just its completed reports or docu-
ments. In addition, § 84-72.0(3) requires that courts liberally
construe the public records statutes for disclosure when a pub-
lic body has expended its funds.
The city argues that the “of or belonging to” language in
§ 84-72.0 means a public body must have ownership of, as
distinguished from a right to obtain, materials in the hands of
a private entity. but the city’s narrow reading of the statute
would often allow a public body to shield records from public
scrutiny. It could simply contract with a private party to per-
form one of its government functions without requiring produc-
tion of any written materials.
[3] Section 84-72.0 does not require a citizen to show
that a public body has actual possession of a requested record.
construing the “of or belonging to” language liberally, as we
must, this broad definition includes any documents or records
that a public body is entitled to possess—regardless of whether
the public body takes possession. The public’s right of access
should not depend on where the requested records are physi-
cally located. Section 84-72.0(3) does not permit the city’s
nuanced dance around the public records statutes.
As noted, however, the city urges us to follow the U.S.
Supreme court’s decision in Forsham. We have previously anal-
ogized decisions under the federal FOIA to construe Nebraska’s
public records statutes.6 but a close look at Forsham provides
little guidance. We believe a critical distinction exists between
the judicial construction of the FOIA and § 84-72.0: The
FOIA does not define the operative term, and Nebraska’s
definition of public records is less restrictive than the judicial
6 See State ex rel. Neb. Health Care Assn., supra note 2.
eVeRTSON v. cITY OF kIMbALL 	9
cite as 278 Neb. 

qualifiers that the Supreme court has imposed for disclosure
under the FOIA.
The FOIA defines “record” as “any information that would
be an agency record.”7 It does not define “agency record.” And
a court can only “order the production of any agency records
improperly withheld.”8 The U.S. Supreme court has stated that
the word “‘withhold’ . . . presupposes the actor’s possession
or control of the item withheld.”9 The court has held that two
requirements must be satisfied to show that requested materi-
als qualify as agency records: () The agency must “‘create
or obtain’” the requested materials and (2) “the agency must
be in control of the requested materials at the time the FOIA
request is made. [control means] that the materials have come
into the agency’s possession in the legitimate conduct of its
official duties.”20
In contrast to the U.S. Supreme court’s judicial “create
or obtain” definition—with its attendant possession require-
ment—the Nebraska Legislature more broadly defined public
records to include documents or records “of or belonging to”
a public body. And remember, nothing in § 84-72.0 requires
a public body to have actual possession of a requested record.
Further, Forsham simply does not address disclosure when a
public body contractually delegates a governmental function to
a private party and decides not to take possession of the writ-
ten records. To determine whether a Nebraska public body is
entitled to records in a private party’s possession for purposes
of disclosure, we look to other state court decisions.
(b) Functional equivalency Tests
In recent years, many state courts confronted the interplay
of privatization of governmental duties and statutory require-
ments for access to public records. Some states have statutory
7 5 U.S.c. § 552(f)(2).
8 5 U.S.c. § 552(a)(4)(b).
9 Kissinger v. Reporters Committee, 445 U.S. 36, 5, 00 S. ct. 960, 63
L. ed. 2d 267 (980).
20 Department of Justice v. Tax Analysts, 492 U.S. 36, 44-45, 09 S. ct.
284, 06 L. ed. 2d 2 (989).
0 	278 NebRASkA RePORTS

provisions that preclude a public body from intentionally or
unintentionally circumventing public records statutes by dele-
gating public duties to private parties.2 As the Iowa Supreme
court has noted, its statutory provision prevents government
agencies from accomplishing indirectly what they are prohib-
ited from doing directly—avoiding disclosure.22
Many courts have adopted functional equivalency tests for
determining whether records in a private party’s possession
should be disclosed. Many of these tests provide stringent
requirements before ordering disclosure. Some of these tests
require a requesting party to show that the private party func-
tions as a hybrid public/private entity: an entity created by,
funded by, and regulated by the public body.23 These tests
appear appropriate when a private entity performs an ongo-
ing government function. but requiring citizens to show that a
private party functions as a hybrid government entity creates a
loophole that would often allow public bodies to evade public
records laws. As we know, public bodies often contract with
independent contractors to provide government services.
We agree with other courts that public records laws should not
permit scrutiny of all a private party’s records simply because
it contracts with a government entity to provide services. but
we prefer the Ohio Supreme court’s test, which applies to a
broader range of circumstances. For a private entity’s records to
fall within Ohio’s public records act, three requirements must
be satisfied: () The private entity must prepare the records to
carry out a public office’s responsibilities; (2) the public office
must be able to monitor the private entity’s performance; and
(3) the public office must have access to the records for this
2 See, News and Sun-Sentinel v. Schwab, et al., 596 So. 2d 029 (Fla. 992);
Gannon v. Board of Regents, 692 N.W.2d 3 (Iowa 2005).
22 KMEG Tele. v. Iowa State Bd. of Regents, 440 N.W.2d 382 (Iowa 989),
abrogated on other grounds, Gannon, supra note 2.
23 See, e.g., Connecticut Humane Soc. v. FOIC, 28 conn. 757, 59 A.2d
395 (99); Marks v. McKenzie High School Fact-Finding Team, 39 Or.
45, 878 P.2d 47 (994); Memphis Publishing v. Cherokee Children, 87
S.W.3d 67 (Tenn. 2002).
eVeRTSON v. cITY OF kIMbALL 	
cite as 278 Neb. 

purpose.24 The court concluded, “[G]overnmental entities can-
not conceal information concerning public duties by delegating
these duties to a private entity.”25
[4] We agree. Section 84-72.0(3) does not permit public
bodies to conceal public records by delegating their duties to
a private party. Accepting the city’s argument would mock the
spirit of open government. We conclude that the Ohio Supreme
court’s test appears to be the most consistent with § 84-72.0’s
broad definition of public records, and we adapt it to determine
whether a public body is entitled to documents in a private par-
ty’s possession for purposes of disclosure. Specifically, under
§ 84-72.0, requested materials in a private party’s posses-
sion are public records if the following requirements are met:
() The public body, through a delegation of its authority to
perform a government function, contracted with a private party
to carry out the government function; (2) the private party pre-
pared the records under the public body’s delegation of author-
ity; (3) the public body was entitled to possess the materials to
monitor the private party’s performance; and (4) the records are
used to make a decision affecting public interest.
here, the mayor delegated to Miller’s team his authority to
investigate allegations of wrongdoing by public officials and
set the boundaries of the investigation. The investigators cre-
ated the records under the city’s delegated authority, and the
information contained therein proved essential to the mayor’s
decision in terminating a public official. The city does not
claim that the mayor did not have the right to obtain copies of
the investigators’ records to monitor their performance. And
any claim to the contrary lacks credibility—the city having
paid $26,000 for this information. The mayor admitted that
he terminated Lewis’ employment because of the informa-
tion. Thus, the district court was not clearly wrong in finding
that the records belonged to the city and that it relied on the
information in the reports, even if it declined to take possession
of the materials or pay for a final written report documenting
24 State ex rel. v. Krings, 93 Ohio St. 3d 654, 758 N.e.2d 35 (200).
25 Id. at 659, 758 N.e.2d at 40.
2 	278 NebRASkA RePORTS

the team’s recommendations. We conclude that the investiga-
tors’ written reports and documents were public records under
§ 84-72.0.
4. records were exemPt from disclosure
The city contends that the court erred in concluding that
§ 84-72.05(4), (5), and (7) did not exempt requested materi-
als. We agree that the court erred in failing to conclude that
§ 84-72.05(5) exempted the investigatory records. Thus, we do
not decide whether they were also exempt under § 84-72.05(4)
or (7).
[5] As noted, the Legislature intended that courts liberally
construe §§ 84-72 to 84-72.03 for disclosure whenever a
public body expends public funds.26 because the Legislature
has expressed a strong public policy for disclosure, we must
narrowly construe statutory exemptions shielding public records
from disclosure.27
Under § 84-72.05(5), public bodies have discretion to with-
hold the following materials:
Records 	developed 	or 	received 	by 	law 	enforcement
agencies and other public bodies charged with duties
of investigation or examination of persons, institutions,
or businesses, when the records constitute a part of the
examination, investigation, intelligence information, citi-
zen complaints or inquiries, informant identification, or
strategic or tactical information used in law enforcement
training, except that this subdivision shall not apply to
records so developed or received relating to the presence
26 See § 84-72.0(3).
27 See, e.g., Department of Interior v. Klamath Water Users Protective Assn.,
532 U.S. , 2 S. ct. 060, 49 L. ed. 2d 87 (200); Young v. Rice, 308
Ark. 593, 826 S.W.2d 252 (992); County of Santa Clara v. Superior
Court, 70 cal. App. 4th 30, 89 cal. Rptr. 3d 374 (2009); Herald Co
v Bay City, 463 Mich. , 64 N.W.2d 873 (2000); Colby v. Gunson,
224 Or. App. 666, 99 P.3d 350 (2008); Trombley v. Bellows Falls Union
H.S. Dist. No. 27, 60 Vt. 0, 624 A.2d 857 (993); Brouillet v. Cowles
Publishing Co., 4 Wash. 2d 788, 79 P.2d 526 (990). compare, State ex
rel. Upper Republican NRD v. District Judges, 273 Neb. 48, 728 N.W.2d
275 (2007); Grein v. Board of Education, 26 Neb. 58, 343 N.W.2d 78
(984).
eVeRTSON v. cITY OF kIMbALL 	3
cite as 278 Neb. 

of and amount or concentration of alcohol or drugs in any
body fluid of any person.
here, the court ruled that the investigatory records exemp-
tion did not apply because () Robinson and kimball are not
“‘law enforcement agencies’” or “‘other public bodies charged
with duties of investigation or examination’” and (2) the inves-
tigation was not a criminal justice or regulatory investigation.
but the city contends that the records here are exempt under
our two-part test for investigatory records set out in State ex
rel. Neb. Health Care Assn.28
In State ex rel. Neb. Health Care Assn., we modified a stan-
dard used by federal courts that determined whether an agency
can withhold records under exemption 7 of the federal FOIA.29
Under specified conditions, exemption 7 allows agencies to
withhold “records or information compiled for law enforce-
ment purposes.” In determining whether a public body com-
piled records “for law enforcement purposes,” some federal
courts apply a two-part test. First, the agency’s investigatory
activities must relate to the enforcement of laws or the main-
tenance of national security. Second, the relationship between
the investigation and one of the agency’s law enforcement
duties must sufficiently support at least a colorable claim of
its rationality.30
We modified the two-part test in State ex rel. Neb. Health
Care Assn. to also apply to a public body’s investigatory
records. There, we defined investigatory records:
[A] public record is an investigatory record where () the
activity giving rise to the document sought is related to
the duty of investigation or examination with which the
public body is charged and (2) the relationship between
the investigation or examination and that public body’s
duty to investigate or examine supports a colorable claim
of rationality.3
28 State ex rel. Neb. Health Care Assn., supra note 2.
29 See 5 U.S.c. § 552(b)(7).
30 See State ex rel. Neb. Health Care Assn., supra note 2.
3 Id. at 792, 587 N.W.2d at 06.
4 	278 NebRASkA RePORTS

The two-part test provides a deferential burden-of-proof rule
for a public body performing an investigation or examination
with which it is charged. but, as we recognized in State ex
rel. Neb. Health Care Assn., the investigatory exception does
not apply to protect material compiled ancillary to an agen-
cy’s routine administrative functions or oversight activities.32
Federal courts have held that exemption 7 applies only when
the investigation involves an agency’s investigation of “non-
agency personnel and of activities external to the agency’s own
operations”33 and only when the agency aims its investigation
with special intensity on a particular party.34 exemption 7 does
not apply to material compiled during internal agency inves-
tigations in which an agency, acting as the employer, simply
supervises its own employees. exemption 7 does not cover this
matter even if the investigation of internal activities reveals evi-
dence that could later cause a law enforcement investigation.35
If the exemption covered all monitoring of employees’ activi-
ties, the exemption would swallow the disclosure rule.
As the district of columbia circuit court of Appeals has
explained, “Any internal auditing or monitoring conceivably
could result in disciplinary action, in dismissal, or indeed in
criminal charges against the employees.”36 but exempting all
internal audits from disclosure would permit the exemption
to defeat the purpose of the public records laws—“to provide
public access to information concerning the Government’s
own activities.”37 The government must therefore show that the
agency compiled the investigatory records for adjudicatory or
enforcement purposes and not general agency monitoring of
32 See id.
33 Stern v. F.B.I., 737 F.2d 84, 89 (d.c. cir. 984). See, Rosenfeld v. U.S.
Dept. of Justice, 57 F.3d 803 (9th cir. 995); Pratt v. Webster, 673 F.2d
408 (d.c. cir. 982).
34 See State ex rel. Neb. Health Care Assn., supra note 2.
35 Stern, supra note 33, citing Rural Housing Alliance v. United States Dept.
of Agr., 498 F.2d 73 (d.c. cir. 974). See, also, Kimberlin v. Department
of Justice, 39 F.3d 944 (d.c. cir. 998).
36 Rural Housing Alliance, supra note 35, 498 F.2d at 8.
37 Id.
eVeRTSON v. cITY OF kIMbALL 	5
cite as 278 Neb. 

its programs and employees.38 And “‘[a]n agency’s investiga-
tion of its own employees is for “law enforcement purposes”
only if it focuses “directly on specifically alleged illegal
acts, acts which could, if proved, result in civil or crimi-
nal sanctions.”’”39
[6,7] We agree that an investigation of a public body’s
employee is “for law enforcement purposes” if the alleged
acts could result in a civil or criminal sanction. Although
§ 84-72.05(5) does not refer to law enforcement purposes,
it does refer to law enforcement agencies and public bodies
charged with investigating or examining persons, institutions,
or businesses. We interpret this language to mean investigations
or examinations for performing adjudicatory or law enforce-
ment functions. Otherwise, the exemption could exempt a
broad spectrum of materials that included records related to
official misconduct or general government activity. A broad
interpretation of the exemption would be inconsistent with the
Legislature’s policy for disclosure. For the same reason, we
also agree that § 84-72.05(5) should apply to an investigation
of a public body’s employees only if the investigation focuses
on specifically alleged illegal acts.
here, the complaints focused on racial profiling, an illegal
act. Nebraska statutes prohibit racial profiling. Neb. Rev. Stat.
§ 20-502 (Reissue 2007) provides that no “law enforcement
agency in this state shall engage in racial profiling.” Yet, the
Legislature has not enacted any criminal sanctions for this
statute or authorized any state agency to investigate allega-
tions of racial profiling.40 Thus, the only means the city had to
enforce the statute arose from Robinson’s supervisory power to
investigate the job performance of the city’s law enforcement
officials. Robinson, as the mayor, had statutory responsibility
to ensure that the city complied with all governing laws and
had the power to remove police officers.4 Although Robinson’s
38 Patterson v. I.R.S., 56 F.3d 832 (7th cir. 995); Stern, supra note 33.
39 Patterson, supra note 38, 56 F.3d at 837, quoting Stern, supra note 33.
40 See Neb. Rev. Stat. §§ 20-50 to 20-506 (Reissue 2007).
4 See Neb. Rev. Stat. §§ 7-07() and 7-0 (Reissue 2007).
6 	278 NebRASkA RePORTS

investigation overlapped with his supervisory powers, the city
was not monitoring its employees. The investigation concen-
trated on racial profiling and specifically zeroed in on allega-
tions of racial profiling by Lewis. These allegations, if proved,
would constitute a violation of law. We concede that the inves-
tigation could not have resulted in civil or criminal sanctions
because the Legislature has not enacted enforcement provisions
for racial profiling. but we conclude that the mayor’s purpose
in initiating the investigation was nonetheless for enforcement
of the law. because the statutes charged the mayor as the city’s
representative to ensure that the city complied with govern-
ing laws, we determine that the court erred in concluding that
the investigatory records exemption under § 84-72.05(5) did
not apply.
5. attorney fees were not authorized
[8,9] Finally, the city contends that the court erred in
awarding attorney fees. We will affirm a trial court’s decision
awarding or denying attorney fees absent an abuse of discre-
tion.42 A party may recover attorney fees and expenses in a
civil action only when a statute permits recovery or when we
have recognized and accepted a uniform course of procedure
for allowing attorney fees.43
Section 84-72.07 specifically authorizes attorney fees only
when the requesting party has substantially prevailed. having
determined that the court erred in failing to conclude that
§ 84-72.05(5) exempted the requested records, the appel-
lees have not substantially prevailed. We conclude that the
court erred in awarding the appellees an attorney fee under
§ 84-72.07.
VI. cONcLUSION
We determine that the district court did not err in determin-
ing that the requested materials were public records under
§ 84-72.0. but, we conclude that the court did err in failing
42 See State ex rel. Stenberg v. Consumer’s Choice Foods, 276 Neb. 48, 755
N.W.2d 583 (2008).
43 See Simon v. City of Omaha, 267 Neb. 78, 677 N.W.2d 29 (2004).
eVeRTSON v. cITY OF kIMbALL 	7
cite as 278 Neb. 

to rule that § 84-72.05(5) allowed the city to withhold
the records from disclosure. Further, because an exemption
applied, the requesting parties did not substantially prevail and
the court erred in awarding attorney fees under § 84-72.07.
We therefore affirm in part, and in part reverse and remand
the cause with directions for the district court to enter an order
consistent with this opinion.
affirmed in Part, and in Part reversed
and remanded with directions.
shari erickson and george erickson, aPPellants , v.
u-haul international , doing Business as u-haul
comPany, a corPorate defendant, and u-haul
center of n.w. omaha , aPPellees.
767 N.W.2d 765
Filed July 2, 2009. 	No. S-08-759.
. Summary Judgment. Summary judgment is proper if the pleadings and admis-
sible evidence offered at the hearing show that there is no genuine issue as to any
material facts or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment was granted, giving that party the benefit of all reasonable
inferences deducible from the evidence.
3. Jurisdiction: States. When there are no factual disputes regarding state contacts,
conflict-of-law issues present questions of law.
4. Statutes: Judgments: Appeal and Error. The meaning of a statute is a ques-
tion of law. When reviewing questions of law, an appellate court has an obliga-
tion to resolve the questions independently of the conclusion reached by the
trial court.
5. Rules of Evidence: Appeal and Error. When the Nebraska evidence Rules
commit the evidentiary question at issue to the discretion of the trial court, an
appellate court reviews the admissibility of evidence for an abuse of discretion.
6. Trial: Evidence: Appeal and Error. A trial court’s determination of the rele-
vancy and admissibility of evidence must be upheld in the absence of abuse
of discretion.
7. Jurisdiction: States. In answering any choice-of-law question, the court first
asks whether there is any real conflict between the laws of the states.
8. ____: ____. In conflict-of-law analysis, an actual conflict exists when a legal
issue is resolved differently under the law of two states.
8 	278 NebRASkA RePORTS