June 23, 2018

Colorado Court of Appeals: Award of Attorney Fees Pursuant to CORA Mandatory If Denial of Inspection Was Improper and Party Seeking Disclosure of Records Prevailed

The Colorado Court of Appeals issued its opinion in Colorado Republican Party v. Benefield, State Representative on November 10, 2011.

Colorado Open Records Act—Confidential Constituent Communications—Prevailing Applicant—Attorney Fees.

In this Colorado Open Records Act (CORA) matter, petitioner Colorado Republican Party (CRP) appealed the trial court’s order denying its Motion for Reasonable Costs and Attorney Fees against respondents Colorado State Representatives Debbie Benefield, Bernie Buescher, Morgan Carroll, Gwyn Green, Mary Hodge, Liane “Buffie” McFadyen, Wes McKinley, Michael Merrifield, James Riesberg, and Judy Solano (collectively, Representatives) under CRS §24-72-204(5). The order was reversed and the case was remanded.

Representatives denied access to surveys requested by CRP based on the confidential communication exception of CORA. The court, following an in camera review, ordered the Representatives to produce the completed surveys to CRP, concluding that they were public records subject to disclosure under CORA. A division of the Court of Appeals held that some of the surveys were excepted from disclosure as confidential constituent communications. After remand, the trial court found that Representatives disclosed all non-confidential constituent communications and denied CRP’s request for attorney fees.

CRP argued that the trial court erred in denying its request for attorney fees and costs pursuant to CORA. First, the law of the case doctrine does not apply to the court’s 2007 order awarding attorney fees and costs to CRP. The trial court later reversed the 2007 award after the case was remanded to the trial court from the first appeal. Additionally, unless a statutory exception applies, an award of attorney fees pursuant to CORA is mandatory if: (1) the custodian’s denial of the right of inspection was not “proper”; and (2) the party seeking disclosure is the “prevailing applicant.” If a document whose production is required under CORA was withheld, the denial of the right of inspection of such document was not proper.

Here, the Representatives appear to have acknowledged as much when, after the trial court’s initial order to produce documents, but before filing of the Representatives’ opening brief in the first appeal, they produced 742 surveys to CRP. As to those records, as well as the 183 surveys they disclosed after remand, the right of inspection was improperly denied.

Further, a prevailing applicant is any party who brings a CRS §24-72-204(5) action against a public records custodian and obtains any improperly withheld public record as a result of such action. Here, CRP prevailed by obtaining production of 742 of the surveys pursuant to court order.

Finally, CORA’s costs and attorney fees provision does not afford the trial court discretion. Because the Representatives were required by the Court of Appeals’ ruling to produce at least one document, CRP prevailed. Further, because the Representatives never asserted that they were “unable, in good faith, after exercising reasonable diligence, and after reasonable inquiry, to determine if disclosure of the [records] was prohibited,” they were not shielded by the safe harbor against attorney fees award under CRS §24-72-204(6)(a). The order was reversed and the case was remanded for the trial court to determine the reasonableness of attorney fees to be awarded to CRP.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on November 10, 2011, can be found here.

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