38-1,106. Reports, complaints, and records not public records; limitations on use; prohibited disclosure; penalty; application material; how treated; confidentiality.

(1) Reports under sections 38-1,129 to 38-1,136, complaints, and investigational records of the department shall not be public records, shall not be subject to subpoena or discovery, and shall be inadmissible in evidence in any legal proceeding of any kind or character except a contested case before the department. Such reports, complaints, or records shall be a public record if made part of the record of a contested case before the department. No person, including, but not limited to, department employees and members of a board, having access to such reports, complaints, or investigational records shall disclose such information in violation of this section, except that the department may exchange such information with law enforcement and other state licensing agencies as necessary and appropriate in the discharge of the department's duties and only under circumstances to ensure against unauthorized access to such information. Violation of this subsection is a Class I misdemeanor.

(2) Investigational records, reports, and files pertaining to an application for a credential shall not be a public record until action is taken to grant or deny the application and may be withheld from disclosure thereafter under section 84-712.05.

(3) The identity of any person making a report, providing information leading to the making of a report, or otherwise providing information to the department, a board, or the Attorney General included in such reports, complaints, or investigational records shall be confidential whether or not the record of the investigation becomes a public record.

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Annotations

The evidentiary privilege under this section belongs to the Department of Health and Human Services, not the credential holder, and is limited to protecting the department's incident reports, complaints, and investigatory records when they are not included in a contested hearing. It does not preclude discovery of information available independent of the department's investigation. Stetson v. Silverman, 278 Neb. 389, 770 N.W.2d 632 (2009).