Failing to clarify a law exempting the state’s public power providers from making proprietary records public could affect ratepayers, representatives of those public utilities told the Legislature’s Natural Resources Committee on Wednesday.
But media organizations said a proposal by Sen. Dan Hughes of Venango on behalf of the public power industry carved out too much from the state’s public-records laws, pushing public power in the direction of their profit-driven competition.
At the close of a lengthy hearing Wednesday — which Hughes said was one of the best hearings he's attended as a state senator — the two sides huddled to strike a deal.
The drafted compromise that could go back to the committee allows public utilities to withhold “competitive or proprietary information which would give an advantage to business competitors” from being turned over in response to public-records requests.
It defines competitive information as “information which a reasonable person, knowledgeable of the electric utility industry, could conclude gives an advantage to business competitors,” keeping the door open for the public to make a case to each provider or other means outlined in statute.
Wednesday's special hearing came less than two weeks after the Nebraska Supreme Court reversed a lower court’s ruling allowing the Nebraska Public Power District to withhold proprietary documents from Gary Aksamit of Aksamit Resource Management LLC, who asked for records related to cost and revenue projections of individual power facilities, rate outlooks and other information in 2016.
Justice William Cassel wrote in the opinion that lawmakers could one day clarify the language in the public-records exemption, but until that happened, the state’s public power providers should be responsive to requests for information, even if it gives their competitors a leg up.
Speaking for the Nebraska Power Association, Shelley Sahling-Zart, vice president and general counsel for Lincoln Electric System, said the Supreme Court's decision could subject public utilities to a wide range of requests for proprietary information, which would be "to the detriment of our customer-owners” because the public power entities could not receive that information in turn from private competitors.
She likened it to the Nebraska athletic department, drawing the analogy that while the public could request budget documents or staff rosters, the athletic department would not turn over football coach Scott Frost’s playbook — a proprietary document that would put the Huskers at a competitive disadvantage.
“What we’re asking you to do is protect our playbook,” Sahling-Zart said.
Tim Burke, president of the Omaha Public Power District, said the sweeping decision by the Supreme Court could jeopardize future economic development in the state, by giving companies pause before they provide public power companies with their own proprietary information while they considered locating in Nebraska.
Media of Nebraska, which represents the state’s print and broadcast outlets, testified against the exemption, cautioning the committee that the language introduced by Hughes could allow the utilities to withhold more information from the public interest than they could before the Supreme Court ruling.
“We just want to make sure it’s not so broad they lose accountability to the public,” said Korby Gilbertson on behalf of the organization.
Senators took no action Wednesday, but will meet Thursday morning to consider which amendment to send to the floor for debate.