August 23, 2017

Bills Requiring Mediation for CORA Disputes and Allowing Local Governments to Tax Marijuana More Signed

On Thursday, May 4, 2017, the governor signed two bills into law. To date, he has signed 211 bills and vetoed one bill. The bills signed Thursday are summarized here.

  • HB 17-1177“Concerning the Use of Alternative Methods of Resolving Disputes that Arise Under the ‘Colorado Open Records Act,’ by Reps. Cole Wist & Alec Garnett and Sen. John Cooke. During the 14-day period before the person may file an application with the district court, the bill requires the custodian who has denied the right to inspect the record to either meet in person or communicate on the telephone with the person who has been denied access to the record to determine if the dispute may be resolved without filing an application with the district court.
  • HB 17-1203“Concerning the Authority of Certain Local Governments to Levy a Special Sales Tax on Retail Marijuana in Certain Circumstances Subject to Voter Approval by the Eligible Electors of the Local Government,” by Rep. Steve Lebsock and Sens. Larry Crowder & Beth Martinez Humenik. The bill authorizes counties and municipalities to levy, collect, and enforce a special sales tax on retail marijuana and retail marijuana products; except that a county may levy, collect, and enforce a special sales tax on retail marijuana and retail marijuana products only under certain circumstances.

For a list of all of the governor’s 2017 legislative decisions, click here.

SB 17-040: Modifying Procedures for Public Access to Government Files

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

HB 17-1029: Allowing Records Custodians to Deny Access to Confidential Personal Information

On January 11, 2017, Rep. Polly Lawrence and Sen. Bob Gardner introduced HB 17-1029, “Concerning Public Records that are Subject to Denial of Inspection.”

The bill allows a custodian to deny access to confidential personal information records and employee personal e-mail addresses. The provisions of the ‘Colorado Open Records Act’ that relate to civil or administrative investigations and trade secrets and other privileged and confidential information apply to the judicial branch.

The bill was introduced in the House and assigned to the State, Veterans, and Military Affairs Committee. It is scheduled to be heard in committee on February 2 upon adjournment.

CJD 16-03 Added Regarding Retention, Viewing, and Transmission of Sensitive Records

On Friday, September 30, 2016, the Colorado State Judicial Branch announced the adoption of a new Chief Justice Directive. CJD 16-03, “Retention, Transmission, and Viewing of Sensitive Records,” was adopted on September 22, 2016.

This directive sets forth the judicial department’s policy governing the retention, transmission, and viewing of sexually exploitative material, visual depictions involving the use of a minor engaging in sexually explicit conduct, and child pornography, collectively a “sensitive record.”  Among other things, the CJD prohibits anyone from uploading a sensitive record into an electronic case file, uploading or downloading a sensitive record onto an electronic device connected to the Judicial Department’s network, or using a Judicial Department computer or other electronic device to view or display a sensitive record.  The CJD is applicable to the courts, court personnel, a party, an attorney for a party, or any other person.

To read the Chief Justice Directive, click here.

SB 16-132: Clarifying that DUI Test Results Are Not Public Information

On February 18, 2016, Sen. John Cooke and Rep. Mike Foote introduced SB 16-132Concerning Clarifying that Test Results Relating to Certain DUI Offenses are not Public Information. The bill was assigned to the Senate Judiciary Committee, where it passed with amendments and was referred to the Senate Committee of the Whole for Second Reading. The bill passed Second Reading with amendments and passed Third Reading. In the House, the bill was assigned to the Judiciary Committee.

This bill states that the database compiled by the Department of Public Heath and Environment containing personal information relating to the results of individuals’ breath alcohol content, and all other personal identifying information, are not public information. The Department shall disclose such information only to: (1) the individual who is the subject of the test, or his or her legal representative; (2) a named interested party in a civil or criminal action in which the test results are directly related, or his or her legal representative; (3) any prosecuting attorney, law enforcement officer, state agency, or state and local public official; or (4) the Department may release non-personal identifying information in accordance with C.R.S. § 24-72-101 through § 24-72-402.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

Colorado Supreme Court: Official Custodian’s Denial of Records Request Proper so No Entitlement to Attorney Fee Award

The Colorado Supreme Court issued its opinion in Reno v. Marks on Tuesday, May 26, 2015.

Colorado Open Records Act—CRS § 24-72-204—Costs and Attorney Fees.

In this case brought under the Colorado Open Records Act, the Supreme Court held that where an official custodian of records brings a court action under CRS § 24-72-204(6)(a) seeking an order restricting or prohibiting disclosure of records, a records requestor may recover costs and reasonable attorney fees in accordance with CRS § 24-72-204(5). Under subsection 204(5), a prevailing records requestor is entitled to costs and attorney fees unless the district court finds that the denial of the right of inspection was proper. Here, the district court’s order reflects that the official custodian’s denial of the request was proper. Consequently, the records requestor was not entitled to attorney fees.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Quality Management Program Records Protected Since Program Had CDPHE Approval

The Colorado Supreme Court issued its opinion in Simpson v. Cedar Springs Hospital, Inc. on Monday, October 13, 2014.

Quality Management Privilege.

In this original CAR 21 proceeding, the Supreme Court held that the trial court erred in finding that a hospital must have “authoritative” documentation of approval by the Colorado Department of Public Health and Environment (CDPHE) for the quality management privilege under CRS §25-3-109 to apply. The Court held that because the hospital maintained a CDPHE license at all relevant times, its quality management program was necessarily approved by CDPHE, and the documents from its quality management committee meetings were therefore covered by the quality management privilege. The Court made this rule absolute, and remanded to the district court for further proceedings consistent with this opinion.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Fee and Cost Award Mandated by Statute when District Court Orders Inspection of Public Records

The Colorado Supreme Court issued its opinion in Benefield v. Colorado Republican Party on Monday, June 30, 2014.

CRS § 24-72-204(5)—Records—Costs and Fees.

Benefield and other current or former members of the Colorado House of Representatives sought review of the court of appeals’ judgment in Colorado Republican Party v. Benefield (Colo.App. No. 10CA2327, Nov. 10, 2011), which reversed the district court’s order denying costs and attorney fees for the Colorado Republican Party. After assessing the extent to which the Party prevailed overall in its action for inspection of public records, the district court determined that it was not a “prevailing applicant” within the meaning of CRS § 24-72-204(5). The court of appeals reversed, reasoning that a prevailing applicant was “any party who brings a section 24-72-204(5) action against a public records custodian and obtains any improperly withheld public record as a result of such action.”

The Supreme Court affirmed. CRS § 24-72-204(5), when properly construed, mandates an award of costs and reasonable attorney fees in favor of any person who applies for and receives an order from the district court requiring a custodian to permit inspection of a public record, as provided for by the statute.

Summary and full case available here.

Tenth Circuit: Generalized Allusion to Confidential Information Insufficient to Justify Sealing Records

The Tenth Circuit Court of Appeals issued its opinion in JetAway Aviation, LLC v. Board of County Commissioners of the County of Montrose, Colorado on Monday, June 9, 2014.

JetAway is a commercial business that provides aircraft-related services such as hangaring, fueling, parking, and more, typically known as FBO. In 2006, the Montrose County Board of County Commissioners decided to privatize FBO services at the Montrose Regional Airport. The BOCC solicited bids and selected another provider, JCP, for the FBO services. JetAway sued, alleging violations of the Sherman Act from manipulation of the selection process. The district court granted summary judgment in favor of the governmental defendants, and JetAway appealed. The defendants cross-appealed on governmental immunity grounds.

In a per curiam opinion, the Tenth Circuit affirmed the grant of summary judgment, noting that JetAway failed to establish anti-trust injury. There was no need for the Tenth Circuit to reach the defendants’ governmental immunity cross-appeal. The Tenth Circuit also addressed two procedural matters – JetAway’s motion to seal Volume XVI of its appendix and Defendants’ motion to strike JetAway’s reliance on notes taken by a county commissioner. The Tenth Circuit denied JetAway’s motion to seal, noting that they failed to meet their heavy burden to show why sealing was required, and denied Defendants’ motion as moot.

The Tenth Circuit affirmed summary judgment against JetAway, dismissed as moot Defendants’ cross-appeal, denied JetAway’s motion to seal, and denied as moot Defendants’ motion to strike.

HB 14-1110: Adding Additional Requirements for Minutes Kept During School Board Meeting

On January 15, 2014, Rep. Cherylin Peniston and Sen. Mary Hodge introduced HB 14-1110 – Concerning Procedures Governing Discussions by Boards of Education of School Districts while Meeting in Executive Session. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, the minutes of a meeting of a local public body during which an executive session is held are required to reflect the topic of the discussion at the executive session. In the case of a meeting of a local board of education (school board) during which an executive session is held, the bill additionally requires the minutes to reflect the amount of time each topic was discussed while the board was meeting in executive session.

Under current law, if, in the opinion of the attorney who is representing the local public body and who is in attendance at an executive session that has been properly announced, all or a portion of the discussion during the executive session constitutes a privileged attorney-client communication, no record or electronic recording of the part of the discussion that constitutes a privileged attorney-client communication may be made. The bill eliminates this requirement for school boards. Accordingly, discussions occurring in an executive session of such body that must be electronically recorded include all or any part of the executive session that is claimed by the attorney representing the local public body either to constitute a privileged attorney-client communication or to be subject to protection as trial preparation material.

The bill additionally requires a school board to maintain a privilege log that will allow identification of each portion of the executive session as to which the claim of privileged attorney-client communication or right to protection as trial preparation material is made. The privilege log is required to describe the topic of the communications not disclosed, and the approximate time in the executive session during which the communications not disclosed were discussed, in such manner that, without revealing information itself privileged or protected, other parties are enabled to assess the applicability of the privilege or right to protection. The bill further permits the school board to make a separate recording of that portion of the executive session as to which the claim of privileged attorney-client communication or right to protection as trial preparation material is made.

The CBA LPC has voted to oppose the bill. The bill passed out of the House on Tuesday, Feb. 13, with a 34 yes and 31 no vote.

Colorado Court of Appeals: Records That Do Not Exist Cannot Be Produced for Purposes of CORA

The Colorado Court of Appeals issued its opinion in Mountain-Plains Investment Corp. v. Parker Jordan Metropolitan District on Thursday, August 15, 2013.

Colorado Open Records Act—Fee—Deposit—Privilege Log.

Plaintiffs Mountain-Plains Investment Corporation, John Robert Fetters, Jr., Joann Dransfeldt Fetters, A. Sue Fetters, and John R. Fetters III (collectively, Mountain-Plains) appealed the summary judgment entered in favor of defendant Parker Jordan Metropolitan District (District). The Court of Appeals affirmed in part and reversed in part.

Plaintiffs alleged a violation of the Colorado Open Records Act (CORA) after defendants refused to provide documents in response to two CORA requests until plaintiffs paid a fee to research, review, and make available the requested public records. Plaintiffs contended that the trial court erred in requiring the District to make some, but not all, e-mails concerning the stream development project available to plaintiffs for inspection and review. E-mails may be deemed public records if, like other writings, they were made, maintained, or kept by the government for use in the exercise of functions required or authorized by law or administrative rule or involving the receipt or expenditure of public funds. Here, CliftonLarsonAllen LLP (Clifton)is a private entity that serves as the custodian of records for the District. Communications not received, possessed, or maintained by the District, through Clifton, are not public records. Therefore, the District could not produce what it did not possess.

Plaintiffs further contended that the trial court erred in ruling that the District did not violate CORA. The trial court weighed the cost to plaintiffs against the reasonable time for retrieving and reviewing the documents, and found the $25-per-hour fee to be reasonable. Additionally, charging an advance deposit in a reasonable amount was not a violation of CORA. Therefore, the trial court did not err when it found the District did not violate CORA by failing to respond to the CORA request without plaintiffs first paying a deposit.

The District contended that the trial court erred in holding that the $25-per-hour fee could not be assessed for time spent identifying and segregating privileged material. A custodian may charge a reasonable fee for retrieving and researching records, including the time it takes to identify and segregate records that need not be disclosed. Therefore, the trial court erred by not allowing the District to assess this fee when responding to plaintiff’s CORA request.

Plaintiffs asserted that the trial court erred in ordering that any expenses associated with producing a privilege log may be charged to plaintiffs. Because the District did not maintain a privilege log in its normal course of business, the District may charge an additional fee for the process of producing a privilege log. Furthermore, the $25-per-hour fee was reasonable for creating the privilege log, because it did not exceed the actual cost of generating the log.

Summary and full case available here.

Tenth Circuit: Government Properly Withheld Six Mug Shots from Newspaper under Exception to FOIA

The Tenth Circuit Court of Appeals published its opinion in World Publishing Co. v. United States Dep’t of Justice on Wednesday, February 22, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner is publisher of the Tulsa World newspaper and appeals from the district court’s judgment that Respondents properly withheld six booking photographs (mug shots) requested by Tulsa World. Tulsa World requested the photos under the Freedom of Information Act (FOIA), and the government relied upon Exemption 7(C) to withhold them. On appeal, Tulsa World argues that the district court erred in granting the government’s motion for summary judgment and denying it discovery so that it might better respond to that motion.

“Congress enacted the FOIA to ‘open agency action to the light of public scrutiny.’ There are certain instances, however, when Congress has deemed disclosure inappropriate; these exceptions are covered by 5 U.S.C. § 552(b). The government bears the burden of demonstrating that the request falls into one of the enumerated exceptions, and we construe narrowly in favor of disclosure.” A three-part test has is generally followed to determine if information is covered by Exemption 7(C): “A court must (1) determine if the information was gathered for a law enforcement purpose; (2) determine whether there is a personal privacy interest at stake; and if there is (3) balance the privacy interest against the public interest in disclosure.” It is undisputed that the photos were taken for a law enforcement purpose. The Court, however, determined that “a booking photo is intended for use only by a specific and small group of people,” which provides reason for a court to protect an individual’s privacy interest in that photo. Also, while the paper suggests that several public interests will be furthered by disclosing the photos, the Court found that Tulsa World’s request would not further the purpose of the FOIA. Lastly, the district court did not abuse its discretion by denying discovery.