Jacob v. Neb. Bd. of Parole

313 Neb. 109

982 N.W.2d 815

David H. JACOB, appellant,

v.NEBRASKA BOARD OF PAROLE and Mark T. Langan, parole board member, appellees.

No. S-21-844.

Supreme Court of Nebraska.

Filed December 23, 2022

David H. Jacob, pro se.

Douglas J. Peterson, Attorney General, and James A. Campbell, Solicitor General, for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Freudenberg, J.

I. INTRODUCTION

A committed offender sought a writ of mandamus under the Nebraska public records statutes, specifically Neb. Rev. Stat. § 84-712.03 (Cum. Supp. 2022), compelling the Board of Parole and one of its officers to disclose the record of an informal, first-step parole review proceeding during which he was interviewed by two board members who ultimately found he was not reasonably likely to be granted parole. The district court granted summary judgment in favor of the respondents, reasoning the record of the review proceedings was part of the individual file deemed by statute to be confidential and, also, that it was part of the examination or investigation by a public body charged with duties of investigation or examination of persons, which may be withheld from disclosure. The offender appeals. We affirm.

II. BACKGROUND

David H. Jacob is a committed offender serving an indeterminate sentence with the Department of Correctional Services. He became eligible for parole in 2015. Since 2015, the Board of Parole has conducted annual reviews pursuant to Neb. Rev. Stat. § 83-1,111 (Reissue 2014 & Cum. Supp. 2022). The reviewers have determined after each annual review that Jacob should be denied parole and deferred his case for later reconsideration. At issue in the current action is the record pertaining to a review by the Board of Parole that occurred on September 5, 2019 (Review).

1. NOTICE

Following the Review, the Board of Parole sent Jacob an Offender Board Review Notice (Notice). The Notice set forth that the Board of Parole, as a result of the Review, deferred Jacob's case for another review the following year.

The Notice described that in compliance with § 83-1,111 (Cum. Supp. 2022), as well as Neb. Rev. Stat. §§ 83-192 and 83-1,114 (Cum. Supp. 2022), the Board of Parole had reviewed Jacob's case in his presence. It set forth two reasons for its decision: (1) "The nature/circumstances of your offense(s) indicates that an early release would depreciate from the seriousness of your crime and promote disrespect for the law" and (2) "[d]ue to your prior criminal record." The Notice did not elaborate upon either of these reasons. The Notice recommended that Jacob follow the recommendations of his personalized plan.

2. PUBLIC RECORDS WRITTEN REQUEST AND RESPONSE

In response, Jacob sent a formal request to the Board of Parole pursuant to Neb. Rev. Stat. § 84-712 (Reissue 2014) of the public records statutes, asking for a copy of the complete record of the Review. Jacob pointed out that such a record was required by § 83-1,111(1), wherein it states, "Any hearing and review shall be conducted in an informal manner, but a complete record of the proceedings shall be made and preserved." Further, Jacob recalled there was a " ‘Court reporter’ " at the Review "transcribing what was said." Thus, he was "hereby requesting a copy of that transcribed ‘record.’ "

The Board of Parole responded with a letter signed by board member Mark T. Langan, stating that no verbatim transcription is made for informal board reviews. In any case, according to the Board of Parole, the records developed and maintained in connection with board reviews are generally exempt from the public records statute by virtue of Neb. Rev. Stat. § 84-712.05(5) (Cum. Supp. 2022) and they are specifically exempt pursuant to Neb. Rev. Stat. § 83-1,125.01(2) (Cum. Supp. 2022).

3. PETITION FOR PUBLIC RECORDS WRIT OF MANDAMUS

On January 16, 2020, Jacob filed a verified petition for a writ of mandamus pursuant to § 84-712.03(a), requiring the Board of Parole and board member Langan, together referred to herein as the "Board," to produce a copy of the records of the Review. Jacob also requested that the Board provide him with a copy of his " ‘prior criminal record’ " for the court to review in camera. He specified that he was not seeking any parole proceedings orders and notices, which are exempted from public disclosure pursuant to § 83-1,125.01(1)(m).

Jacob described the Review as being in front of two members of the Board of Parole. Jacob alleged that, at the Review, there was a microphone positioned in front of him and there was a court reporter present who kept a record of what was said. Jacob implied he was making the request because one of the reasons in the Notice for denying parole was his prior criminal record—and he did not have a criminal record other than the charges for which he is presently incarcerated. Furthermore, Jacob alleged there was no discussion at the Review of any prior criminal record.

4. BOARD'S ANSWER

The Board resisted the writ. In its answer, the Board stated it "[l]ack[ed] knowledge of whether Jacob has a criminal record in addition to his three convictions for second degree murder." It admitted there was no discussion of any prior criminal record in the Review, explaining that the only crimes discussed at the Review were the three convictions for which he was incarcerated.

The Board denied that a court reporter was present at the Review or that any verbatim record of the Review was made. Although the Board admitted § 83-1,111(1) requires it to maintain a complete record of the review, it noted the statute does not require the record include an audio recording or verbatim transcript. Furthermore, insofar as the public records statutes are concerned, the Board asserted its obligations are limited to disclosure of existing public records and do not envision the creation of records that do not exist. It asserted the court should dismiss the petition on the grounds that there is no document to provide to Jacob.

The Board alternatively asserted that to the extent any documents providing a summary or recording of the review exist, they were not required to produce it. In this regard, the Board asserted, first, that such record was part of Jacob's "individual file," confidential under § 83-1,125.01(2), and therefore not a public record as defined by Neb. Rev. Stat. § 84-712.01 (Reissue 2014). The Board asserted the list in § 83-1,125.01(1) of what shall be included in the "individual file" was not exclusive of what was properly contained therein. Second, the Board asserted that such record was developed as part of its " ‘duties of investigation or examination’ " and " ‘constitute a part of the examination [or] investigation.’ " Therefore, it may be withheld from the disclosure pursuant to § 84-712.05(5).

The Board did not specifically assert in its answer that it had already provided Jacob with its complete record of the Review.

5. CASE PROGRESSION AND MOTION TO AMEND PETITION

At a hearing on September 18, 2020, the court set a deadline for completion of discovery within 90 days. Trial was set for February 24, 2021.

On December 30, 2020, almost 1 year after filing his petition, Jacob moved to amend his petition to add a prayer for relief for a declaratory judgment of his rights under the provision in § 83-1,111(1), describing the obligation to make a complete record of the review proceedings. His proposed amended pleading was identical to the original petition except for the addition of a prayer for declaratory judgment "for both a construction of the validity of Neb.Rev.Stat. § 83-1,111(1) and a declaration of the Relator's rights and status under the portion of that statute" providing that a complete record of the proceedings shall be made and preserved.

The Board objected to the amendment on the basis of undue delay. At the hearing on the motion to amend, Jacob explained he wanted to "waive the trial altogether and move to just a declaratory judgment." Jacob said he had come to understand during discovery that the Board of Parole does not make what Jacob considered to be a "complete record" of review proceedings. "So, there's really no need for a trial to say we have to compel them to make a complete record. They don't have one." Instead, he wanted the court to "make the statement or make a definition, what does it mean to have a complete record."

The Board argued there appeared to be no dispute of fact pertaining to the underlying petition. Although Jacob could bring a separate action for declaratory judgment if he wished to, they were all too "far down the road into the case" for an amendment not to prejudice them. According to the Board, Jacob should have known at least a year before of any facts giving rise to the declaratory judgment action.

The court denied the motion to amend on the grounds that at such a late stage in the litigation, it was not appropriate to add a declaratory judgment claim to the petition for a writ of mandamus. The court stated it agreed with the parties that a writ of mandamus was "not a good option because there's no record.... I can't order somebody to produce something that doesn't exist...." It also agreed that "whether the parole board is — is legally required to do something that is different ... would be a better subject of a declaratory judgment." Nevertheless, it concluded, "[A]t this stage, I think that ... needs to be a separate action."

6. CROSS-MOTIONS FOR SUMMARY JUDGMENT AND ARGUMENTS

Although Jacob initially indicated at the hearing on his motion to amend that he might dismiss the petition for a writ of mandamus, he instead filed a motion for summary judgment in his mandamus action. The Board submitted a cross-motion for summary judgment.

Jacob asserted in his motion that a complete record of the Review, containing pertinent information, was made and is maintained in a State database. He asserted he was entitled to a copy of whatever information was contained in the State database pertaining...