Date: 09-23-2016

Case Style:

Case Number: 294 Neb. 842

Judge: Michael G. Heavican

Court: Nebraska Supreme Court

Plaintiff's Attorney:

Douglas J. Peterson

Defendant's Attorney:

Joy Shiffermiller

Description: Steckelberg is employed by the State Patrol as a trooper.
He was an applicant for a lateral transfer to the position of
Executive Protection Trooper. Interviews were conducted on
March 26, 2015. Another applicant was awarded the position.
On April 5, 2015, Steckelberg requested that he be permitted
to review his score sheets and the comments and recommendations
from the hiring board. That request was denied,
with the State Patrol’s human resources division informing
Steckelberg that the State Patrol would not provide feedback
concerning interviews. That same day, Steckelberg inquired as
- 844 -
Nebraska Supreme Court Advanc e Sheets
294 Nebraska Reports
STECKELBERG v. NEBRASKA STATE PATROL
Cite as 294 Neb. 842
to why his own records were not provided to him. Steckelberg
was again informed that there would be no feedback given
regarding interviews, because such records were considered to
be confidential.
On April 9, 2015, Steckelberg made, through counsel, a
request under Nebraska’s public records laws for “any and
all documents regarding the most recent interview for the
Executive Protection Trooper position,” including “the completed
a [sic] score sheet, which each member made notes
and comments on, each recommendation and the Board’s
recommendation to the Superintendent.” The State Patrol
sent the listing for the open position but otherwise denied
Steckelberg’s request, with the State Patrol referencing Neb.
Rev. Stat. § 84-712.05(15) (Reissue 2014) as the basis for
such denial.
On May 6, 2015, Steckelberg sought a writ of mandamus in
the Lancaster County District Court, again under Nebraska’s
public records laws, seeking the records that were the subject
of his public records request. Trial on Steckelberg’s petition
was held on August 14.
The trial court held for the State Patrol and denied
Steckelberg’s petition for writ of mandamus. The trial court
concluded that the records Steckelberg sought could be
withheld under § 84-712.05(7), providing that the personal
information of personnel could be withheld from examination.
The court addressed and rejected Steckelberg’s argument
that the State Patrol was not permitted to rely on
§ 84-712.05(7) when its initial denial was purportedly premised
on § 84-712.05(15), concluding that its review of the
public records request was de novo under Neb. Rev. Stat.
§ 84-712.03 (Reissue 2014).
Steckelberg appealed. The State Patrol filed a petition to
bypass the Court of Appeals, which we granted.
ASSIGNMENTS OF ERROR
Steckelberg assigns, restated and consolidated, that the
trial court erred in (1) allowing the State Patrol to rely on
- 845 -
Nebraska Supreme Court Advanc e Sheets
294 Nebraska Reports
STECKELBERG v. NEBRASKA STATE PATROL
Cite as 294 Neb. 842
a different exemption than that originally relied upon, (2)
finding that Steckelberg had not met his burden of proof to
show that the documents were public records, (3) finding the
records were exempt under § 84-712.05(7) and accordingly
denying his petition for writ of mandamus, and (4) not allowing
Steckelberg to review the records that the court reviewed
in camera.
STANDARD OF REVIEW
[1] An action for a writ of mandamus is a law action, and
in an appellate review of a bench trial of a law action, a trial
court’s finding has the effect of a jury verdict and will not be
set aside unless clearly erroneous.1
[2] A claim of equitable estoppel rests in equity, and in
an appeal of an equity action, an appellate court tries factual
questions de novo on the record and reaches a conclusion independent
of the findings of the trial court.2
ANALYSIS
On appeal, Steckelberg makes three basic arguments: (1)
that the district court erred in allowing the State Patrol to rely
on a different exception to the public records laws than that
originally cited by the State Patrol when it denied Steckelberg’s
request, (2) that the district court erred in finding that the
records sought were exempted from disclosure, and (3) that the
district court ought to have allowed him to inspect the records
during the court’s in camera review.
Some background law is helpful. Section 84-712(1) provides
that “all citizens of this state and all other persons interested
in the examination of the public records as defined in section
84-712.01 are hereby fully empowered and authorized” to
examine such records. Neb. Rev. Stat. § 84-712.01(1) (Reissue
2014) provides in part:
1 State ex rel. Neb. Health Care Assn. v. Dept. of Health, 255 Neb. 784, 587
N.W.2d 100 (1998).
2 Id.
- 846 -
Nebraska Supreme Court Advanc e Sheets
294 Nebraska Reports
STECKELBERG v. NEBRASKA STATE PATROL
Cite as 294 Neb. 842
Except when any other statute expressly provides that
particular information or records shall not be made public,
public records shall include all records and documents,
regardless of physical form, of or belonging to this
state, any county, city, village, political subdivision, or
tax-supported district in this state, or any agency, branch,
department, board, bureau, commission, council, subunit,
or committee of any of the foregoing.
Records “which may be withheld from the public” include
18 separate categories.3 Section 84-712.03 allows a person who
is denied “any rights granted by sections 84-712 to 84-712.03”
to file suit. Section 84-712.03(2) provides, in part, that the
court with jurisdiction “shall determine the matter de novo and
the burden is on the public body to sustain its action.”
Before the district court, the State Patrol relied upon
§ 84-712.05(7)—“[p]ersonal information in records regarding
personnel of public bodies other than salaries and routine
directory information”—to support the withholding of the
records from Steckelberg. In initially denying Steckelberg’s
request, however, the State Patrol relied on § 84-712.05(15),
which provides that the following information may be
withheld:
[j]ob application materials submitted by applicants, other
than finalists, who have applied for employment by any
public body as defined in section 84-1409. For purposes
of this subdivision, (a) job application materials means
employment applications, resumes, reference letters, and
school transcripts and (b) finalist means any applicant (i)
who reaches the final pool of applicants, numbering four
or more, from which the successful applicant is to be
selected, (ii) who is an original applicant when the final
pool of applicants numbers less than four, or (iii) who is
an original applicant and there are four or fewer original
applicants.
3 § 84-712.05.
- 847 -
Nebraska Supreme Court Advanc e Sheets
294 Nebraska Reports
STECKELBERG v. NEBRASKA STATE PATROL
Cite as 294 Neb. 842
Estoppel
Steckelberg first argues that the State Patrol should not
be permitted to change its reliance under state law from
§ 84-712.05(15) to § 84-712.05(7). In initially denying
Steckelberg’s request, the State Patrol cited subsection (15).
The State Patrol has since conceded that § 84-712.05(15) is
inapplicable, but argues that the records are protected by subsection
(7). Steckelberg argues that the State Patrol should not
be allowed to “mend [its] hold” in this way.4
[3] We have little case law on the concept of mending one’s
hold. But, generally, to mend one’s hold means that “where
a party has based his conduct upon certain reasons stated by
him, he will not be permitted, after litigation has commenced,
to assert other reasons for his conduct.”5 The phrase comes
from 19th-century wrestling parlance, where it meant to “get
a better grip (hold) on your opponent.”6 Its origins in the law
are traced to the U.S. Supreme Court’s opinion in Railway Co.
v. McCarthy.7
We noted this concept in Enterprise Co., Inc. v. Nettleton
Business College.8 In that case, we observed that “[t]he principle
prohibiting a party from mending his hold is ordinarily
applicable only if some previous conduct on his part would
render present assertion of the right unjust.”9
4 Brief for appellant at 27.
5 Hays v. Christiansen, 114 Neb. 764, 771, 20 N.W. 609, 612 (1926). See,
also, Brown v. Security Mutual Life Ins. Co., 150 Neb. 811, 36 N.W.2d
251 (1949); State, ex rel. Truax, v. Burrows, 136 Neb. 691, 287 N.W. 178
(1939); McDowell v. Metropolitan Life Ins. Co., 129 Neb. 764, 263 N.W.
145 (1935).
6 See Harbor Ins. Co. v. Continental Bank Corp., 922 F.2d 357, 362 (7th
Cir. 1990).
7 Railway Co. v. McCarthy, 96 U.S. (6 Otto) 258, 24 L. Ed. 693 (1877).
8 Enterprise Co., Inc. v. Nettleton Business College, 186 Neb. 183, 181
N.W.2d 846 (1970).
9 Id. at 189, 181 N.W.2d at 851.
- 848 -
Nebraska Supreme Court Advanc e Sheets
294 Nebraska Reports
STECKELBERG v. NEBRASKA STATE PATROL
Cite as 294 Neb. 842
And we echoed this concept of prejudice in State ex rel.
Neb. Health Care Assn. v. Dept. of Health.10 There, we noted
that “[t]he doctrine of equitable estoppel . . . will not be
invoked against a governmental entity except under compelling
circumstances where right and justice so demand; in such
cases, the doctrine is to be applied with caution and only for
the purpose of preventing manifest injustice.”11 We concluded
the relator-appellant had not shown that it was prejudiced by
the appellees’ delay in issuing their denial of access to certain
documents.
We therefore examine this record for prejudice caused as a
result of the State Patrol’s change in position. We find none.
Steckelberg’s request for the records was denied within days
of making of the request. Initially, § 84-712.05(15) was cited,
but by the time the State Patrol filed its answer, it cited to
subsection (7). There is nothing in the record to suggest that
during the district court litigation of this matter, the State
Patrol argued that records were exempted under subsection
(15). This conclusion is reinforced by the district court’s correct
observation that its review of the State Patrol’s denial was
de novo.
Steckelberg’s first assignment of error is without merit.
Acc ess to Records
Steckelberg next argues that the district court erred in finding
that he did not meet his burden to show that the records
were public records. The district court reasoned both that
Steckelberg had not met his initial burden to show that the
records in question were public records and that even if that
burden had been met, the State Patrol had shown that the
records were exempt under § 84-712.05(7).
[4] This is a mandamus action. 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
10 State ex rel. Neb. Health Care Assn. v. Dept. of Health, supra note 1.
11 Id. at 796, 587 N.W.2d at 108.
- 849 -
Nebraska Supreme Court Advanc e Sheets
294 Nebraska Reports
STECKELBERG v. NEBRASKA STATE PATROL
Cite as 294 Neb. 842
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. 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 Neb.
Rev. Stat. § 84-712.08 (Reissue 2014) exempts the records
from disclosure.12
We agree with Steckelberg insofar as he argues that the
district court erred in finding that he had not met his initial
burden. It is undisputed that Steckelberg is a citizen or otherwise
interested party and that he has been denied access
to the records sought. Steckelberg has also shown that the
records sought were those belonging to the State Patrol, an
agency of the State, and thus were public records as defined by
§ 84-712.01. Indeed, the State Patrol concedes that Steckelberg
has met his burden.
We turn next to the question of whether the State Patrol
showed that the records fall within an exemption listed in
§ 84-712.05.
Steckelberg argues that these records do not fit within
§ 84-712.05(7) for two reasons: (1) The State Patrol’s own
evidence shows that the records sought are not part of an
employee’s personnel record, and (2) the records sought fit
more neatly into § 84-712.05(15), which the State Patrol concedes
is otherwise inapplicable.
Steckelberg’s first argument—that the State Patrol’s own
evidence shows the records are not personnel records—misses
the mark. The State Patrol did produce an affidavit stating that
the records were not kept with an employee’s personnel record,
but were kept separately by the State Patrol’s human resources
division. But § 84-712.05(7) exempts “[p]ersonal information
in records regarding personnel.” The district court found that
12 Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009).
- 850 -
Nebraska Supreme Court Advanc e Sheets
294 Nebraska Reports
STECKELBERG v. NEBRASKA STATE PATROL
Cite as 294 Neb. 842
the information in the records sought did contain personal
information. And the information was about employees, otherwise
known as personnel,13 of the State Patrol. There is no
requirement in § 84-712.05(7) that in order to be exempt, the
records must be kept within an employee’s personnel record,
as used as a term of art; the records need only be personal
information about personnel, defined as persons employed by
an organization.14
[5] We also note that the records in question are not part
of our appellate record, nor did either party request their
inclusion in our record. It is incumbent upon the appellant
to present
a record supporting the errors assigned.15 To the
extent Steckelberg suggests that the district court erred in its
finding that the sought-after records contained personal information,
we cannot reach that issue, because we do not have
those records.
Steckelberg also argues that the records fit more squarely
into § 84-712.05(15), which all agree is otherwise inapplicable
on these facts. Steckelberg argues that records such as this are
not open for examination where the applicants are not finalists,
but are open when the applicants are finalists, as is the
case here. Though not entirely specific, Steckelberg appears
to be arguing that if § 84-712.05(7) is read broadly enough to
exempt these materials, then there is no purpose behind the
exemption provided by § 84-712.05(15).
This argument is without merit. Section 84-712.05(15) provides
that “job application materials” of applicants, “other than
finalists,” are exempt from examination. Job application materials
are defined in subsection (15) as “employment applications,
resumes, reference letters, and school transcripts.”
13 See Webster’s Third New International Dictionary of the English Language,
Unabridged 1687 (1993).
14 See id.
15 See Roskop Dairy v. GEA Farm Tech., 292 Neb. 148, 871 N.W.2d 776
(2015).
- 851 -
Nebraska Supreme Court Advanc e Sheets
294 Nebraska Reports
STECKELBERG v. NEBRASKA STATE PATROL
Cite as 294 Neb. 842
It is conceded that Steckelberg was a finalist. But even
if he had not been, he sought “the completed a [sic] score
sheet, which each member made notes and comments on,
each recommendation and the Board’s recommendation to the
Superintendent.” These records are not “job application materials”
as defined by § 84-712.05(15).
Section 84-712.05(7) does not infringe upon the exemption
provided by § 84-712.05(15). As such, Steckelberg’s second
argument and his second and third assignments of error are
without merit.
In Camera Review
Finally, Steckelberg argues that he ought to have been
permitted to inspect the records during the district court’s in
camera review. Section 84-712.03(2) provides in relevant part
that “[t]he court may view the records in controversy in camera
before reaching a decision, and in the discretion of the court
other persons, including the requester, counsel, and necessary
expert witnesses, may be permitted to view the records, subject
to necessary protective orders.”
[6] This decision, then, is entrusted to the discretion of the
court. And we review for an abuse of that discretion. We cannot
find an abuse of discretion in this case. There was nothing
about the nature of these records that required any other person
to be present to help the court decipher the meaning of the
records in question. To allow Steckelberg to be present for this
review would obviate the need for the underlying litigation.
There is no merit to Steckelberg’s final assignment of error.

Outcome:

The records Steckelberg seeks to view are exempted under § 84-712.05(7). As such, the district court did not err in denying Steckelberg’s petition for writ of mandamus. The decision
of the district court is affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments:

View Case