By Russ Pankonin
    The Imperial Republican
     In a March 2 ruling, the Nebraska Supreme Court said communications by a public body during a closed session are not considered privileged information.
     "There is no absolute privilege for communications made during a closed session," the high court said it its ruling.
     However, those same communications may be kept from the public under certain instances determined by a court.
     The decision resulted from an action filed by the Upper Republican Natural Resource District with the high court.
     The NRD sought relief from a district court ruling requiring them to give depositions in a suit originally filed by WaterClaim and other individuals. WaterClaim was later dropped as a plaintiff in the suit.
     The suit challenged that the URNRD board's use of closed sessions while negotiating with the state on an integrated management plan violated Nebraska's Open Meetings Act.
     They contended public policy was being formed behind closed doors, a violation of the law.
     When the original depositions were being taken in the case, the URNRD's counsel objected to the questioning. They claimed the information was not subject to the discovery process because it was confidential and protected by attorney-client privilege.
     The depositions were discontinued and the plaintiffs filed a motion to require the depositions.
     District Judge John Battershell agreed and ordered the NRD to complete depositions.
     Battershell retired and Judge David Urbom took over the case and agreed with Battershell that the URNRD must sit for depositions.
    Writ of Mandamus filed
     With no other recourse available, the URNRD filed a Writ of Mandamus with the Supreme Court asking them to review the district court action. The high court agreed to review the action and put a stay on depositions until they ruled.
     A mandamus is an action of law defined as an extraordinary remedy, when there is no other remedy available under the ordinary course of law.
     Since the action was against the district court, the writ had to be filed with the state's Supreme Court.
     In the writ, the URNRD contended the communications in closed session were confidential and privileged under the Open Meetings Act; were protected by attorney-client privileges; and were protected under the state secrets privilege.
     In its ruling, the high court said communication is not privileged just because it took place in closed session.
     If so, then a private litigant would have no way to challenge whether or not the public body violated the open meetings act, the court said.
     The court said a litigant must have some legitimate form of discovery to determine if a violation has occurred.
    Depositions can be limited
     The high court said some of the communications at issue may still be subject to attorney-client privilege, noting the district court erred on that point.
     They said the district court should have allowed depositions to continue in private for later review by the court to determine what communications could be protected.
     Lincoln Attorney Don Blankenau, who represented the URNRD before the supreme court, said under such a setting, both counsels would be present at the depositions.
     Counsels would have the right to object to particular testimony but the deposition would continue. The judge would later rule on any objections as to whether such communications would be protected.
     Since the argument of state secrets privilege was not raised in the district court, the high court did not address that portion of the NRD's writ.
     Both Blankenau and Steve Smith of Imperial, co-founder and director of WaterClaim, said the court's ruling was a victory for the public's right to know.
     Smith said the court stated the public still has a right to know what's going on in closed session and that the NRD's argument on that point was not valid.
     Gregg Smith of Imperial, speaking on behalf of the plaintiffs, which include Scot German and Mark and Julie Ferguson, all of Imperial, and John and Wilma Ferguson of Parks, said Tuesday he did not know whether they will continue to seek further depositions.
     He said they will make the determination in the next several weeks, noting there were some interesting issues raised by the high court.