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Committee advances compromise to shield Nebraska public power cost data

March 9, 2018 GMT

LINCOLN — Representatives for Nebraska public power utilities and news media outlets reached a compromise Thursday on a legislative amendment that allows utilities to keep their detailed cost data confidential.

The Legislature’s Natural Resources Committee adopted the compromise language and added it to an omnibus bill they quickly advanced to the floor for debate in coming weeks.

The compromise language was hashed out after officials with Media of Nebraska objected to the amendment being so broad that it could limit public access to other important information about the performance of public utilities.

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The public power industry wants to change existing law after a recent court ruling ordered the Nebraska Pubic Power District to release proprietary cost information the district says would damage its ability to remain competitive.

The compromise language says the industry may withhold “competitive or proprietary information which would give an advantage to business competitors.” It goes on to define competitive information as records that a reasonable person, knowledgeable of the electric utility industry, could conclude gives an advantage to business competitors.

State Sen. Dan Hughes of Venango, the committee chairman, introduced the amendment on behalf of the public power districts. The amendment is attached to Legislative Bill 822.

At issue is a Feb. 23 ruling by the Nebraska Supreme Court that said NPPD must release specific information on the cost of generating electricity from its power plants. The decision was in response to a public records request from a potential competitor based in Houston.

Nebraska is the only state where all electrical producers are public. The state’s open records laws don’t apply to private companies.

Shelley Sahling-Zart, a vice president at Lincoln Electric System, said Nebraska utilities already disclose information related to their rates and business operations that private power companies don’t have to release. She compared the recent ruling to Husker football coach Scott Frost being ordered to publicly release his playbook.

“How competitive would the Husker football team be if he was required to divulge the Husker playbook but nobody else in the Big Ten had to divulge theirs?” she asked. “What we’re asking you to do is protect our playbook.”

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Also testifying in support of the amendment were officials with the Omaha Public Power District, NPPD and Municipal Energy Agency of Nebraska. Letters of support were submitted by chambers of commerce and numerous smaller public power districts.

Dave Bundy, chairman of the board of Media of Nebraska and editor of the Lincoln Journal Star, said his members understand the need for public utilities to be competitive. But Bundy argued that the proposal makes “public power companies less public” by removing language from current law that requires the public purpose of requested information to be considered.

Mikel Lauber, news director at 10/11 KOLN/KGIN in Lincoln, said his station has conducted surveys that show strong interest in stories about state government and examples of governmental inefficiency.

“There was a higher interest in reporting on state and governmental issues than there was on Husker sports,” he said. “I don’t have to tell you that’s saying something in Nebraska.”

The World-Herald is one of the members of Media of Nebraska.

The legal fight that led to the court’s ruling stemmed from a public records request by Aksamit Resource Management. The Texas company argued that disclosing the information would allow ratepayers to better understand the costs behind their electrical rates.

NPPD said that Aksamit wants NPPD’s information for competitive reasons and that there is no public purpose for releasing the information. NPPD has not yet had to disclose the information to the Texas company.

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