OMAHA, Neb.—Kimball officials say the findings of private investigators hired to probe allegations that a police officer was engaging in racial profiling were never meant for public release.
They want the Nebraska Supreme Court to overturn the ruling that made those documents public—including documents they argue were never in the city’s possession.
The court will hear arguments in the case Friday.
Mayor Greg Robinson launched an investigation after a group of local business leaders confronted him in July 2005 and alleged that law enforcement was targeting Hispanic people for arrest, following them and sitting outside their homes.
The group’s concerns centered on Sharon Lewis, a Kimball police officer.
After the Nebraska State Patrol declined to investigate, Robinson contacted a Colorado attorney, who hired two investigators to work on the case.
Weeks later, Robinson and Kimball’s city attorney met with the investigators to hear their findings. Robinson said in court documents that he declined to have a written report prepared for him because he believed the discussion was sufficient and because he didn’t want the city to incur more costs.
Investigators had prepared a report for the attorney who hired them, which was never turned over to Robinson. To have a report prepared for Robinson, it could have cost several thousand dollars, according to the city’s appeal.
Lewis was fired. She then sued the city, business leaders Bruce Evertson, Perry Van Newkirk and others in federal court, saying they conspired against her and violated her civil rights.
In January 2006, attorneys for Evertson and Van Newkirk demanded the city produce the report from the investigation.
Kimball County District Judge Kristine Cecava granted the request by ordering the investigators to hand over documents tied to the investigation, saying they are public record. She later ordered the city to bear the associated costs—including attorneys fees from Lewis’ federal lawsuit—which totaled more than $23,000.
In May 2008, the city appealed the ruling.
Attorneys argued the documents never belonged to the city, so they aren’t public records.
Regardless, the documents are exempt from disclosure because they address personnel matters, constituted legal advice sought from an attorney and because they were part of an investigation, Lincoln attorney Andrea Snowden wrote in court briefs.
The district court also abused its discretion in awarding attorneys fees and that order should be reversed, she said. She’s asked that the case be sent back to the trial court.
Sidney attorney Donald Miller, representing Evertson and Van Newkirk, argued the city called for the investigation, paid for it with public funds and received the information. That makes the documents public, he said.
In court briefs, he disputed the city’s exemption arguments and said disclosing the documents allowed the community to address the concerns and move forward.
“There were numerous newspaper articles, coffee-shop talk and just plain rumors regarding the Kimball Police Department and the federal lawsuit by Sharon Lewis against the city, appellees and various Kimball businesses,” Miller wrote. “The disclosure of the report clarified and established the true facts.”
Because the documents have already been disclosed, there is no controversy to be decided and the appeal should be dismissed, he said.
The city can’t “‘unring’ the bell that had already been rung by the trial judge,” but the high court can “grant partial relief to prevent any further disclosure,” Snowden argued.
The report prepared for the mayor constituted the type of report that could be withheld from public disclosure and the district court “missed the mark” in deciding otherwise, attorney William Austin wrote in friend-of-the-court briefs filed by the League of Nebraska Municipalities.
“Within the broader governmental context, investigations of citizen complaints about any form of police misconduct or other impropriety on the part of governmental officials should not be stifled by concerns that the reports will be made public and thus subject witnesses to harassment, potential retaliation or embarrassment,” Austin wrote.
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