The Nebraska Supreme Court on Friday reversed a lower-court decision that had allowed NPPD to refuse to release public records that broke down the cost of generating electricity at specific facilities because the information could help its competitors.
In 2016, Nebraska Public Power District denied requests from Aksamit Resource Management LLC and First Security Power LLC, based in Lincoln.
Gary Aksamit, the head of the energy firms that have been pushing to sell electricity in Nebraska, took them to court.
But Platte County District Judge Robert Steinke declined to issue an order that would've forced NPPD to disclose the records, finding that if released they would give business competitors an advantage and serve no public purpose.
In Friday's order, the Supreme Court said the appeal turned on a statutory exception for "proprietary or commercial information which if released would give advantage to business competitors and serve no public purpose."
Emphasis on "no public purpose."
"Does the statute require public records useful to an energy policy debate to be released despite an advantage flowing to a competitor? The words chosen by the Legislature dictate that answer must be 'yes.' We cannot say the result is absurd," Justice William Cassel wrote.
At trial, Dr. Ernie Goss, an economics professor at Creighton University, testified that a difficulty he encountered while conducting research on public power in Nebraska was a lack of access to information about the costs and revenues of NPPD's individual generation units.
Goss said it was difficult to judge whether NPPD was being run efficiently without looking at the information broken down.
NPPD focused on the confidentiality of the information in the industry and the competitive harm if it were forced to disclose the information.
But, Cassel said, the crux of the appeal is whether the release would serve a public purpose. The court found that testimony from Goss, as well as a former NPPD employee who said he observed business inefficiencies that led to higher rates, articulated a public purpose.
"Indeed, one can scarcely escape the intense public debate regarding the merits of fossil fuels versus renewable fuels," he said.
Cassel said the Legislature might well one day exclude a public power district's competitive information from public scrutiny.
"But thus far it has not," he said.
The court reversed the district court's order and sent the case back with directions for the judge to issue an order directing the information be released.
The case is likely to have a farther reach than a single case. In 2016, Aksamit asked all four of the state's largest public power entities to disclose the information.
At the time, Lincoln Electric System said it wouldn't publish breakdowns for its costs. Now, it appears, LES and others will have to disclose the information, too.
LES said in a statement that it will review the decision and "determine its applicability to our current processes."
NPPD said its legal staff is reviewing the decision.