Adopted as an Advisory Opinion pursuant the provisions of §49-14,123(10) and Title 4, Chapter 1, Rules of Practice and Procedure. As provided in §49-14,123(10), this Advisory Opinion shall be binding upon the Commission, unless amended or revoked, concerning the person or public body who requested the opinion and acted in reliance on it in good faith unless material facts were omitted or misstated by the person in the request for the opinion.
Question Presented: Can a reporter for a state owned radio network use information gathered in the course of her employment to write a book as a private project?
Conclusion: No, but see analysis.
Facts: A reporter for the Nebraska Public Radio plans to write a book on the industrialization of hog farming in Nebraska. This book would address the social, environmental and economic impact of this type of hog production and the public policy issues raised by the trend. In the course of her employment with the Nebraska Public Radio Network (NPRN), the reporter became familiar with these issues while doing a documentary series for “Nebraska Nightly”. Thus, information for the documentary was gathered while working as a paid employee of NPRN, using equipment owned by NPRN.
The Nebraska Public Radio Network is owned and operated by the Nebraska Educational Telecommunications Commission. The Educational Telecommunications Commission is an agency of the State of Nebraska. Its broadcast operations are generally referred to as NET. The employees of the NPRN and the Telecommunications Commission are employees of the State of Nebraska. The reporter is a public employee who worked on the documentary on state time using state owned equipment.
The reporter intends to write the book on her own time using her own resources and equipment. That is, she will use her own computer, tape recorder, car, telephone, etc. She wants to know if she can use material gathered as a state employee in connection with her book.
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Analysis: Section 49-14,101(3) of the Nebraska Political Accountability and Disclosure Act (NPADA) provides as follows:
No public official or public employee shall use that person’s public office or any confidential information received through the holding of a public office to obtain financial gain, other than compensation provided by law, for himself or herself, a member of his or her immediate family, or a business with which the individual is associated.
In Advisory Opinions 45, 99, 170 and 174 the Commission has taken the position that the term confidential includes not only that information which is strictly confidential, but also information which is not generally available to others.
Section 49-14,101(4) of the NPADA generally provides that no public official or public employee shall use personnel, resources, property, or funds under that individual’s official care and control other than in accordance with law or regulation or use such items for personal financial gain.
The Commission has taken the position that public resources may be used by public officials and public employees for non-governmental purposes and for personal gain only to the same extent and on the same basis that the resource is available to the general public. See Advisory Opinion #173. By way of illustration, a state owned photocopy machine is to be used for state business. However, if the agency controlling the machine allows any member of the public to make photocopies at the rate of ten cents per page, an employee or official of the agency may make photocopies for personal business for ten cents per page.
The notes, tape recordings and other research material gathered by the reporter in connection with the production of the documentary are the property of the Nebraska Educational Telecommunications Commission. Consequently, the reporter may use them for a personal, non-governmental purpose or for personal financial gain to the same extent and on the same basis as the materials may be used by the general public. In practical terms, this means that if members of the public may acquire copies of documents at a specific cost per page, the reporter may acquire copies of the same documents at the same cost. If the public may acquire copies of audio tapes for a specific cost, the reporter may acquire copies at the same cost. If members of the public may review these materials for research purposes, the reporter may do so as well.
We note, however, that the policies of the Nebraska Educational Telecommunications Commission restrict the availability of certain material to the public.
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In 1993 the Nebraska Educational Telecommunications Commission adopted a policy pursuant to the Nebraska Free Flow of Information Act. See §20-144 et seq. of the Nebraska Statutes. According to §20-146, the Free Flow of Information Act is intended to protect the First and Fourteenth Amendment rights of the print and broadcast media from compelled disclosure of:
1) The source of any published or unpublished, broadcast or non-broadcast information obtained in the gathering, receiving, or processing of information for any medium of communication to the public; or
2) Any unpublished or non-broadcast information obtained or prepared in gathering, receiving, or processing of information for any medium of communication to the public.
The two preceding numbered paragraphs are quoted in the NET policy which goes on to state:
Accordingly, NET’s policy is ordinarily to reject requests, from whatever quarter, for non-broadcast information and records (such as video and audio tapes, transcripts, telephone messages, notes, notebooks, files, computer data, and the like) obtained by NET personnel in the newsgathering process. (Regardless of their location, all such materials remain the property of NET.) Requests to deviate from this policy, or to provide copies of material previously broadcast, will be considered by management on a case by case basis.
Assuming that this policy applies to the materials that the reporter seeks to use, it is clear that the unpublished and non-broadcast materials are confidential and that the published and broadcast materials are not generally available to the public. Under these circumstances, the use of these materials in connection with a venture which may result in the payment of money could constitute a use of confidential information received through the holding of public office for personal financial gain. Such a use could be a violation of §49-14,101(3).
Even if it were the intent of the reporter that she receive no money for writing the book, she would still be using resources under her official care and control for a non-governmental purpose on a basis not available to the public. Such a use could be a violation of §49-14,101(4).
Given the policy of the Nebraska Educational Telecommunications Commission, the materials may not be used by the reporter in connection with a personal, non-governmental project.
