Huff v. Brown

305 Neb. 648

941 N.W.2d 515

Herchel H. HUFF, Appellee,

v.Doug BROWN, Sheriff of Furnas County, Appellant.

No. S-19-271

Supreme Court of Nebraska.

Filed April 23, 2020

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 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 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 dis-qualify 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 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 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 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...