A nonprofit that’s been collecting and analyzing a trove of criminal justice data has made presentations to Nebraska officials who may use the information to shape solutions addressing critical issues in the state’s prison system. So far though, the content of those presentations, made in closed-door meetings, has not been made public despite requests, prompting concern from Nebraska’s leading civil liberties advocacy organization.
The working group formed earlier this year after state leaders successfully applied for funding to address challenges facing Nebraska’s state prisons, which are among the most overcrowded in the U.S. The group, which is receiving technical assistance from the nonprofit Crime and Justice Institute, intends to use the findings to prepare for legislative and administrative actions in 2022.
While participants have provided updates on the process when asked, their actual findings have not been disclosed.
The group of over a dozen officials — which spans branches of government and multiple levels of the justice system — is not considered a public body, according to Gov. Pete Ricketts’ spokesperson Taylor Gage.
This week, Ricketts called the current part of the process the “data collection stage.”
“If there’s any legislation that comes out of it, it will go to a hearing just like any other bill and the public will have a chance to weigh in on that,” he said. At some point, he said, data will be released in support of any prospective legislation.
Len Engel, CJI’s director of policy and campaigns, said the nonprofit has given the group two big data presentations thus far with analyses. Group members raised questions that led to ongoing analysis, he said.
Asked whether The World-Herald could see the presentations, Engel said that’s up to the chairs of the working group: Ricketts, Chief Justice of the State Supreme Court Michael Heavican and State Sen. Steve Lathrop of Omaha.
The World-Herald formally requested the presentations under the state public records law from the Governor’s Office, which denied the request based on the presentations being in “draft” form, saying they’re “expected to be revised and amended.”
“Governor Ricketts intends to release these documents and data after the information has been verified and is in its final form,” wrote administrative assistant Lana Gillming-Weber.
The presentations were “pretty heavily vetted” before CJI presented them, Engel said, but he was reluctant to comment on whether the presentations would be considered a draft.
“The data story is always evolving because of the different agencies involved, the amount of data that’s available — there’s a lot to learn from the data, and everything you learn you want to dig a little deeper,” Engel said.
The director of ACLU of Nebraska, Danielle Conrad, called the Governor’s Office’s response “troubling.” On its face, Conrad said, “It just doesn’t make sense” to her that presentations given to a committee composed of public officials would be considered drafts.
The state has a “strong and proud tradition of open government,” Conrad said, paraphrasing an inscription on the outside of the State Capitol in Lincoln. That inscription reads: “The salvation of the state is watchfulness in the citizen.”
The ACLU believes that the state and officials should err on the side of disclosure.
“It’s not exactly a secret that there’s a huge, pressing public policy issue at play here,” Conrad said. “So it’s very troubling and strange and surprising that the Governor’s Office would seek to scuttle from public view what seems to be an earnest effort across all three branches of government to find solutions to that problem.”
The ACLU submitted its own request for the records after learning of the response to The World-Herald.
The ACLU has vocally opposed Ricketts’ proposal to build a new prison. In 2017, it filed a lawsuit challenging conditions in the state’s overcrowded and understaffed lockups.
Under Nebraska law, public records include all records and documents “of or belonging to” the state and other governmental bodies, though there are almost two dozen exemptions in the law.
Shawn Renner, a Lincoln lawyer who previously represented the Nebraska Press Association for 35 years, said that the law does not “deal directly with draft documents” but that there’s an attorney general opinion from 1991 — which the Governor’s Office cited in a follow-up email regarding the denial — that “indicates that some documents are insufficiently final” to be considered “records” under the state’s public records act.
“It is not clear under that 30-year-old attorney general’s opinion” whether these documents, as described to him by a World-Herald reporter, would qualify as a draft, Renner said. He declined to speculate how a court might rule on the issue.
Conrad had a stronger opinion.
“I think that the Governor’s Office is most likely misapplying this statutory framework and misreading the attorney general’s opinion on that point,” she said.
This is not the first time ACLU of Nebraska has pushed back against the Ricketts administration for withholding records it believes should be public. The organization, along with The World-Herald and Lincoln Journal Star, sued the Nebraska Department of Correctional Services in 2017 for denying their requests for documents revealing where Nebraska got lethal injection drugs. The Nebraska Supreme Court ultimately ruled that state officials had to release the documents.
Lathrop, one of the other working group chairs, declined to provide the data presentations. Legislators are largely exempt from public records law.
“The Governor has asked that we not share the information from the CJI PowerPoint (presentations) until we’ve had an opportunity to develop policy proposals,” Lathrop said.
The World-Herald also formally requested the records from the Administrative Office of the Courts and Probation on Friday.
Ricketts, alongside Heavican and Lathrop, announced in February that the state would seek federal money to assess and improve the state’s criminal justice system.
In a March letter to the U.S. Department of Justice and The Pew Charitable Trusts, Nebraska officials asked for technical help from CJI. Among other issues, the letter noted that the state’s aging prisons are overcrowded, its incarceration rate has increased by 17% over 15 years, and its recidivism rates have gradually increased over the last decade.
Their request was approved, and the nonprofit has been gathering a decade’s worth of data from across the criminal justice system and conducting analyses that should reveal a sense of underlying issues.
Information from the process that’s underway has been difficult to access from the start.
The Governor’s Office did not voluntarily provide a list of officials who are part of the working group when The World-Herald requested one earlier this year. Instead, a reporter obtained a list under the state’s public records law.
The World-Herald recently requested an interview with Corrections Director Scott Frakes about the study and a recent Judiciary Committee meeting where corrections employees testified about the dire impacts of severe understaffing.
“The work of CJI and the associated committee is in progress,” spokesperson Laura Strimple replied. “At this time, the group does not have any announcements. When they do, we’ll be sure to communicate with you.”
Frakes will address staffing, retention and the listening session when he appears before the Judiciary Committee on Wednesday, according to Strimple. She said that, since union negotiations were underway at the time, the department was not granting interviews before that.
Engel said the openness in the process across states has largely depended on each state’s open meeting laws. In some states, every meeting has been open to the public, but those requirements aren’t always in place and the process is out of sight until a point where there’s a public dissemination of the information.
He said CJI remains “quite optimistic” about the process in Nebraska.
“The convictions that folks came into this process held about the outcomes and the data-driven process is still very much alive,” he said.