First reported by NOISE, the story jolted Omaha before quickly making more headlines and reaching the entire state.

Emails released by our team showed the Omaha Police Department closely monitoring the activities of Black activists and their allies. Records showed officers sharing the location of a private birthday party, requesting undercover officers participate in a chalking event even after they were told it was lawful activity, and weighing in on Black leaders’ perspectives about police reform.

The story prompted a flurry of texts, calls and emails from local organizers and advocates. Most conversations included something like this: “Did my name come up? How did you find this? Thank you for calling attention to this.”

HOW WE GOT THE EMAILS

The effort began with an unrelated public records request. We contacted Omaha Police to request a list of the munitions that they used at protests sparked by the killing of George Floyd in their militarized police response. One record in particular caught our eye. Police were emailing with city officials about the lawful activity of a local advocate, someone organizing bail support for arrested protesters.

We reached out to the advocate and she suggested a few more names to include a future search. Fast forward past phone calls, emails and two more records requests, and you end up with more than 1,700 emails and attachments in response to our narrow search terms.

LEVERAGING RECORDS REQUESTS

Nebraska state law clearly defines your right to access public records in the custody of Nebraska public agencies. If an email, text message or document was written on taxpayers’ time with taxpayer resources – barring narrow exemptions – it can be accessed by we the people.

The City of Omaha has a public records portal and you can find a helpful breakdown of how to use it on the Omaha Police Department website. For most records, the City of Omaha says the department responding to your request can provide the documents you’re requesting via email at no charge.

Your experience might differ if you’re looking for records in another community or from another public agency. Every agency handles requests differently, but they all are bound by the same law. In other words, while your requesting process might differ, the basics of a response shouldn’t.

Here’s what Nebraska law requires:

  • Government agencies must reply to a request within four business days although they can take longer to actually provide records. The law requires requests be fulfilled “as soon as is practicable and without delay.”
  • These agencies can charge a fee to provide records but by law that fee can’t exceed the actual cost of making the copy available.
  • There are exemptions to what records can be provided but they must be specifically identified, and the requester can appeal. For example, with the Lincoln Journal Star and the Omaha World-Herald, we took the Nebraska Department of Correctional Services all the way to the Nebraska Supreme Court and won after the department refused to provide lethal injection drug records.

The National Freedom of Information Coalition offers a text template for requesting public records from agencies that don’t have portals like the City of Omaha. The Student Press Law Center also offers a form-fillable template.

A word of advice: requests that are narrow and specific have a much better chance of avoiding roadblocks like excessive fees or unreasonable delays. For example, if you were looking for an email, identify the email account you’re interested in, a specific search term you’re looking for and set boundaries of a few weeks or months at most.

At the same time, be careful not to limit results by providing space for attorneys to duck your request. Don’t say you’re looking for emails that show a certain activity because the responding agency might disagree on your assessment. Look no further than the City of Omaha making the absurd claim that police weren’t engaged in surveillance because “phones were not wiretapped.” If we had requested emails showing police surveillance, we wouldn’t have received a thing.

TRANSPARENCY HELPS OUR DEMOCRACY WORK. PERIOD.

The ACLU protects Nebraskans' right to obtain public records because a democracy cannot function without government transparency. Our work has kept Nebraska’s public records law strong and ensured state and local government agencies comply with the law. And even when records show agencies are within the letter of the law, public scrutiny makes it more likely they’ll also act ethically. After all, just because you can do something, doesn’t mean you should.

Our police email release continues our work promoting open government that is accountable to the people.

Date

Friday, March 5, 2021 - 11:00am

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A string of public records requests led us to discover Omaha Police were closely monitoring Black activists and allies. In Nebraska, the law protects our right to access most emails and other records written by government employees.

With a unanimous City Council vote and Mayor Jean Stothert’s signature, Omaha’s municipal code will now better protect the right to meet in public streets and parks to call for government reform. The change is linked to our ProBLAC lawsuit, which ended successfully with a settlement agreement in January.

To understand just how important this is, we have to look back to the Omaha Police Department’s unconscionable mass arrest of people participating in a peaceful march along Farnam Street in the summer of 2020. Officers arrested 120 people, relying on an ordinance about obstructing public ways that would later be struck down by a judge as vague and overly broad. The judge’s decision affirmed our argument that the ordinance’s language restricted more protected free speech than necessary and created an undue risk of chilling participation in lawful expressive activity.

When our plaintiffs and city representatives agreed to participate in settlement negotiations, we knew a rework of that language should be part of the conversation. After three weeks of negotiation, which included local leaders meeting with a federal judge mediating the negotiations, the final agreement included revisions of the ordinances providing more protections for peaceful speech and protest, including language that mandates officers provide notice and reasonable time to comply before citing or arresting a citizen peacefully calling for change.

Even better, the revised ordinances protect spontaneous protests that occur in the street, even when traffic is obstructed, and regardless of whether the City has issued a permit. The U.S. Supreme Court has repeatedly made it clear that if a protest is in response to a breaking news event, police can’t use a burdensome permit requirement to prevent people from taking to the streets so their voices can be heard.

As a recent blog post from our friends at ACLU National puts it: “History shows public streets and roads are as deeply intertwined with our First Amendment rights as the idea of protest itself. […] The Supreme Court has recognized that our right to protest in the streets is a time-honored and cherished right.”

We’re proud to be part of defending that time-honored right, and to have our work now enshrined in Omaha city code. It wouldn’t have happened without our courageous plaintiffs and dedicated Freedom Fund attorneys, who stepped up immediately after the mass arrest to represent those who were arrested. They have our team’s deep gratitude.

The work is not done because too often officials are all too ready to undermine our rights when they don’t agree with someone’s message. Supporters and all Nebraskans can rest assured we will steadfastly oppose all attempts to chill free speech at the local and state level, including a bill before the Nebraska Legislature this session. The U.S. Supreme Court has rightly called the First Amendment’s protections indispensable conditions of nearly every other freedom. They must be fiercely protected.

Our thanks to our Freedom Fund partners

Gene Summerlin
Husch Blackwell

Jessica Douglas
Schaefer Shapiro LLP

Allison Heimes
Carlson Burnett

Brent Bloom
Brent Bloom Law Offices

James Regan
Regan Law Offices

Caitlin Lovell
Johnson & Mock PC LLO

Michael Tasset
Johnson & Mock PC LLO

Joseph Howard
Dornan Law

Jim McGough
McGough Law PC LLO

David Tarrell
Berry Law 

Jeffrey Leuschen
Law Office of Jeffrey Leuschen

Robert Bartle
Bartle & Geier

Kyle Flentje
Wagner Meehan & Watson LLP

Liam Meehan
Wagner Meehan & Watson LLP

Kenny Jacobs
Alexander Law

Andrea McChesney
McChesney & Farrell

Date

Friday, February 12, 2021 - 2:30pm

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