By Jason Schock
The Nebraska Supreme Court, more than two years after the initial lawsuit and some four months after hearing arguments in the case of David Leon Frederick v. City of Falls City and Falls City EDGE, Friday morning sided with the City and EDGE, vacating a 2012 district court ruling by Judge Daniel Bryan that maintained EDGE records are public in nature and reversing the lower court’s order to award lawyer fees and costs to Frederick.
“We remand the cause to the district court with directions to dismiss,” the judgment reads.
Judge Bryan, on Dec. 11, 2012, ruled that records Frederick requested — but was denied access to — from the City and EDGE were, indeed, public in nature, as defined by the Public Records Act. Judge Bryan further found the City (the original suit was filed against the City, only, then later amended to include EDGE) liable for attorney fees and costs in the amount of $17,109.59. The City filed its appeal about one month later.
“Weighing the various factors, we conclude as a matter of law that EDGE is not the functional equivalent of an agency, branch or department of Falls City and that therefore, EDGE’s records requested by Frederick are not ‘public records,’” as defined by state law. Because of this determination, we do not reach EDGE’s assignment of error with respect to attorney fees or issues raised in the cross-appeals of Frederick and Falls City.”
The “records” in this case refers to unspecified information shared between EDGE Director Beckie Cromer and/or the City and Consolidated Grain & Barge Co., one of the largest shippers of grain in the world. When the agricultural giant corresponded with Cromer in the early stages regarding potential expansion in southeast Nebraska, word traveled quickly, particularly among those in the business, namely Salem Grain, which is co-owned by David Leon Frederick. While enticing CGB to invest here and ultimately build what has become a bustling $23 million skyline-dominating facility was and has been a triumph for EDGE, it was naturally not cause for celebration to its competitors.
Intent nonwithstanding, Frederick and Salem Grain requested access to all documentation related to EDGE’s recruitment of CGB, but were admittedly denied certain company financial information. Cromer said conversations held in confidence is par for the course and companies often prefer some private facts remain private. To negate any private talks would turn off prospective clients and unduly hinder EDGE’s ability to recruit against similar economic bodies. EDGE and the City of Falls City argue that some records are not public records or are exempt from disclosure.
The Supreme Court agreed, stating that EDGE is not a functional equivalent of a city agency, branch or department because it performs a governmental function, i.e., the promotion of economic development.
“A city does not have a duty or responsibility to promote economic development; it simply has the authority to do so if it chooses. And unlike essential governmental functions, such as building and maintaining streets and highways and providing for public health and safety, private entities are free to engage in economic development activities without any involvement of public bodies,” the Court ruled.