On January 11, 2017, Sen. John Kefalas and Rep. Dan Pabon introduced SB 17-040, “Concerning Public Access to Files Maintained by Governmental Bodies.”
Section 2 of the bill modifies the ‘Colorado Open Records Act’ (CORA) by creating new procedures governing the inspection of public records that are stored as structured data.
Section 1 defines key terms including ‘structured data’, which the bill defines as digital data that is stored in a fixed field within a record or file that is capable of being automatically read, processed, or manipulated by a computer.
If public records are stored as structured data, section 2 requires the custodian of the public records to provide an accurate copy of the public records in a structured data format when requested. If public records are not stored as structured data but are stored in an electronic or digital form and are searchable in their native format, the custodian is required to provide a copy of the public records in a format that is searchable when requested.
Section 2 specifies the circumstances that exempt the custodian from having to produce records in a searchable or structured data format.
If a custodian is not able to comply with a request to produce public records in a requested format, the custodian is required to produce the records in an alternate format and to provide a written declaration attesting to the reasons the custodian is not able to produce the records in the requested format. If a court subsequently rules the custodian should have provided the data in the requested format but that the custodian reasonably believed, based upon the reasons stated in the written declaration, that the data could not be produced in the requested format, attorney fees may be awarded only if the custodian’s action was arbitrary or capricious.
Nothing in the bill requires a custodian to produce records in their native format.
Section 3 expands the grounds permitting the filing of a civil action seeking inspection of a public record to include an allegation of a violation of the digital format provisions in the bill or a violation of record transmission provisions specified in CORA. This section also specifies that altering an existing record, or excising fields of information, to remove information that the custodian is required or allowed to withhold does not constitute the creation of a new public record. Such alteration or excision may be subject to a research and retrieval fee or a fee for the programming of data as allowed under existing provisions of CORA.
Section 4 modifies CORA provisions governing the copy, printout, or photograph of a public record and the imposition of a research and retrieval fee. Among these modifications:
- The bill deletes existing statutory language permitting the custodian to charge the same fee for services rendered in supervising the copying, printing out, or photographing of a public record as the custodian may charge for furnishing a copy, printout, or photograph;
- The bill replaces a reference in the statute to the phrase ‘manipulation of data’ with the phrase ‘programming, coding, or custom search queries so as to convert a record into a structured data or searchable format’;
- In connection with determining the amount of the fee for a paper or electronic copy of a public record, the bill specifies that, if a custodian performs programming, coding, or custom search queries to create a public record, the fee for a paper or electronic copy of that record may be based on recovery of the actual or incremental costs of performing the programming, coding, or custom search queries, together with a reasonable portion of the costs associated with building and maintaining the information systems; and
- When a person makes a request to inspect or make copies or images of original public records, the bill permits the custodian to charge a fee for the time required for the custodian to supervise the handling of the records, when such supervision is necessary to protect the integrity or security of the original records.
Section 5 repeals the existing criminal misdemeanor offense and penalty for a willful and knowing violation of CORA.
The bill was introduced in the Senate and assigned to the State, Veterna