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Court tells Neb. Public Power District it cannot keep generating costs private

The Nebraska Supreme Court said the Nebraska Public Power District cannot keep its electric generating costs private.

In an opinion issued Feb. 23, the court reversed another court's finding that it serves no public purpose to reveal the cost and revenue information of each generating unit owned by the Nebraska Public Power District, or NPPD. The opinion, written by Judge William Cassel, said the NPPD failed to show that it was entitled to withhold the information requested by a private company that wants to produce and sell electricity in Nebraska and thus compete with the NPPD.

"Although it demonstrated that releasing the information requested would give an advantage to its competitors, it failed to establish that the information would serve no public purpose," Cassel wrote. "The law as framed required it to prove both elements."

The matter relates to a request from Aksamit Resource Management, a Nebraska-headquartered wind energy developer and energy retailer that in March 2016 sent the NPPD 22 requests for certain operational information. While the NPPD complied with most of those requests, it refused to provide information related to generation assets it owned or partially owned. Aksamit then sued, and the case went to trial in December 2016.

During the trial, the NPPD had to show it was exempt from the state's open records law, which allows exemptions if information is proprietary or commercially sensitive in nature and if released would give an advantage to business competitors and serve no public purpose.

Aksamit had argued that disclosure of the requested information would serve a public purpose, as Nebraska citizens have an interest in knowing the operational and financial details associated with state-owned electrical utilities. Knowing those details could help them evaluate the continued viability of public power in Nebraska, the company said.

The NPPD maintained that keeping the information confidential was necessary and was allowed, as it could suffer competitive harm from disclosing records responsive to Aksamit's requests. The NPPD participates in the Southwest Power Pool, a regional market where it buys and sells electricity.

Platte County, Neb., District Court Judge Robert Steinke in February 2017 sided with the NPPD, saying the public power district did not have to release the information. Steinke said the evidence showed the generation unit-specific cost and revenue information was proprietary or commercial to the NPPD and if it were released publicly, it would give an advantage to the NPPD's competitors.

Aksamit appealed that decision, and the Nebraska Supreme Court granted the company's petition to bypass review by the Nebraska Court of Appeals.

In the opinion for the Supreme Court, Cassel said the district court inferred legislative intent regarding the NPPD's records but this inference has no direct statutory support.

"If presented with the opportunity to exclude a public power district's competitive information from public scrutiny, the Legislature might well do so," Cassel wrote. "But thus far it has not."

The NPPD is discussing the ruling with other public power utilities, spokesman Mark Becker said, adding that the NPPD's board of directors will be briefed about the opinion at its monthly meeting March 8.

Aksamit did not immediately respond to a request for comment. (Case No. S-17-333)