Evertson v. City of Kimball

767 N.W.2d 751

278 Neb. 1

Bruce EVERTSON and Perry Van Newkirk, appellees, v. The CITY OF KIMBALL et al., appellants.

No. S-08-524.

Supreme Court of Nebraska.

July 2, 2009.

Randall L. Goyette and Andrea D. Snowden, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., Lincoln, 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., Omaha, for amicus curiae League of Nebraska Municipalities.

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 investigate. 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.¹ The district court disagreed and ordered the City to disclose the records as redacted.

This appeal presents two questions:

1. Do a private investigator's written data and reports constitute public records under § 84-712.01 when the public body contractually delegated its investigative authority to the private investigators?

2. Are these requested materials, even if public records, exempt from disclosure under three separate provisions of § 84-712.05?

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 targeting 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.

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 investigation, 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 investigator 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 investigators. The team's verbal report confirmed some earlier allegations. 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' description existed.

1. APPELLEES FILE A MANDAMUS PETITION

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 § 84-712.05(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 and an accompanying affidavit. The court had ordered the investigators to seal any discovered reports and submit it to the court. It further ordered that the parties should not review it 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 discovered 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 PUBLIC 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 interviewing. 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 investigative 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 PUBLICIZES 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.

III. ASSIGNMENTS OF ERROR

The City assigns that the district court erred in (1) determining that the documents the appellees sought were public records belonging to the City; (2) failing to determine that § 84-712.05(4), (5), and (7) exempted the documents from disclosure; and (3) awarding attorney fees and finding that $23,192.51 in attorney fees was a reasonable amount.

IV. STANDARD OF REVIEW

Justiciability issues that do not involve a factual dispute 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

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 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.

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 Although mootness does not prevent appellate jurisdiction, it is a justiciability doctrine that can prevent courts from exercising jurisdiction.⁹

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.¹⁰ And when determining whether a case involves a matter of public interest, we consider (1) 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.¹¹

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 investigation 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 PROOF

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 § 84-712.¹² 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 § 84-712.05 or § 84-712.08 exempts the records from disclosure.¹³ Regarding the...