July 29, 2014

Tenth Circuit: Pension Plan Records Properly Withheld under FOIA; Consent of Company Required for IRS to Release

The Tenth Circuit Court of Appeals issued its opinion in Hull v. IRS on Wednesday, August 31, 2011.

The Tenth Circuit affirmed the district court’s decision. Petitioners are retired employees of US West, Inc. and participants in the US West Pension Plan. According to Plaintiffs’ 2008 Freedom of Information Act (FOIA) request, US West made a submission to the IRS under the Voluntary Compliance Review Program (VCRP) for access to records in which “the company fully described [a problem with some of its payments to US West Pension Plan participants] and requested IRS grant approval to make adjusted pension payments,” which the IRS did. The IRS informed Petitioners that their FOIA request for the pension plan records was a request for “tax records,” which “are confidential and may not be disclosed unless specifically authorized by law.” The IRS would require US West Pension Plan’s written consent before they could consider releasing the information. Petitioners appeal the district court’s decision that upheld the IRS’s determination.

The Court held that the IRS properly withheld the requested information. The IRS “succeeded in carrying its burden of proving that [Petitioners’] FOIA request . . .  only sought US West’s return information to which [Petitioners] are not entitled without US West’s consent. Because [Petitioners] have not provided that consent, the IRS properly withheld the requested information.”

Colorado Supreme Court Amends Three Directives Regarding Court Fees

The Colorado Supreme Court has amended three Chief Justice Directives, which were adopted and effective as of August 2011. The changes all concern court fees:

  • CJD 08-02 – “Concerning Assessment of Cost Recovery Fees for Maintaining the Technical Infrastructure Necessary to Support Electronic Access to Court Records”
    • Attachment A of the CJD outlines the fees for online access to court records and e-filing.
  • CJD 98-01 – “Costs for Indigent Persons in Civil Matters”
    • The CJD outlines indigency determinations, the waiving of fees, installment payment procedures, and dispute resolution fees.
  • CJD 85-31 – “Concerning the Assessment and Collection of Statutory Fines, Fees, Surcharges, and Costs in Criminal, Juvenile, Traffic and Misdemeanor Cases”
    • The CJD outlines the assessment of these fees, their standard application, and waiver procedures.

Colorado Court of Appeals: CORA Investigatory Files Exemption Does Not Protect Board of Real Estate Appraisers’ Disciplinary and Investigatory Files and Records

The Colorado Court of Appeals issued its opinion in Land Owners United, LLC v. Waters on August 18, 2011.

Colorado Open Records Act—Investigatory Files Exemption—Deliberative Process Privilege—Confidential Information Exemption.

Defendants Marcia Waters, director of the Colorado Division of Real Estate, and the Colorado Board of Real Estate Appraisers (collectively, the Board) appealed from the district court order requiring disclosure of certain records under the Colorado Open Records Act (CORA). The order was affirmed.

Land Owners United, LLC (Land Owners) made a series of CORA requests seeking records pertaining to the proceedings involving two appraisers, Milenksi and Stroh, who were both disciplined by the Board. It also sought information relating to the Board’s investigation into allegations of abuse of Colorado’s conservation easement program.

On appeal, the Board contended that the district court erred by (1) holding that the investigatory files exemption, the deliberative process privilege, and the confidential information exemption did not justify withholding disclosure of the records; (2) ordering redaction of specified information; and (3) awarding attorney fees to Land Owners. CORA allows access to all public records not specifically exempted by law. The CORA exemption for investigatory files applies only to those investigatory files compiled for criminal law enforcement purposes. Accordingly, the investigatory files exemption of CORA does not protect the records sought in this case.

A key question in determining whether the deliberative process privilege applies is whether disclosure of the material would expose an agency’s decision-making process in such a way as to discourage discussion within the agency and thereby undermine its ability to perform its functions. Here, the district court did not abuse its discretion when it rejected the Board’s assertion of the deliberative process privilege in recognizing the potential effect the discipline of appraisers could have on Land Owners and finding that the public interest outweighed the deliberative process of the Board. Finally, the records at issue here do not fall within the definition of confidential records, which includes “trade secrets, privileged information, and confidential commercial, financial, geological, or geophysical data . . . furnished by or obtained from any person.” The court’s order to redact certain confidential information further protected the Board’s interests in this matter.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on August 18, 2011, can be found here.

Matthew Spengler: An Exercise in Judicial Restraint

Last week, the Colorado Court of Appeals held that the Colorado Open Meeting Law (“COML”) does not preclude a home rule city from conducting business using secret ballots.  In Henderson v. City of Ft. Morgan, Case No. 10CA1409, the Court of Appeals affirmed a District Court decision that the Ft. Morgan City Council’s use of secret ballots to fill two vacancies on the City Council and a vacant magistrate judge position did not violate COML, C.R.S. sec. 24-6-401 to -402.

Prior to voting, the City Council conducted two public meetings where the Council heard presentations from the city council applicants, allotted time for the public to speak about the applicants, and conducted interviews with the magistrate judge applicants.  After these presentations, the City Council voted by written ballot.  Copies of the ballots were retained by the City and obtained by Plaintiff through a CORA request.

Reviewing the plain text of COML, the panel concludes that the statute simply does not impose a particular voting procedure on local government agencies, let alone a procedure that prohibits the use of anonymous ballots for the appointment of government officials. Because the Court holds that the statute is not ambiguous on this point, it does not look beyond the text of the statute to consider legislative intent.

In reaching this holding, the Court contrasts Colorado’s statute with similar laws in other states which expressly forbid the use of anonymous ballots.  “Had the legislature intended to prescribe a voting procedure, and for that matter a procedure prohibiting anonymous voting, it could have said so plainly.”  Moreover, the Court notes that in a separate statute the General Assembly has prescribed a particular voting procedure for municipal bodies when voting on particular subjects.  See C.R.S. sec. 31-16-108 (“On the adoption of an ordinance, resolution, or order for the appropriation of money or the entering of a contract by the governing body of any city or town, the yeas and nays shall be called and recorded, and the concurrence of a majority of the governing body shall be required.”).

Last week, the Denver Post published an editorial describing this ruling as a “cloud” on COML.  The editorial goes on to argue that the Court’s ruling is in direct contradiction with the General Assembly’s intent in enacting COML to ensure that “the formation of public policy is public business and may not be conducted in secret.”

Unfortunately, the editorial does not engage in the substance of the decision in any meaningful way, instead it declares that the decision “boggles the mind.”  In particular, the editorial makes no effort to address the Court’s distinction between conducting business in open meetings — which is clearly required by the COML — and the use of particular voting procedures to decide an issue — a subject not addressed by the COML.

If the Denver Post is correct, and the General Assembly obviously intended to forbid the use of secret ballots when it enacted COML, there is a simple solution: the General Assembly should promptly amend the law to clarify this point.  Absent such an amendment, it is not the job of the courts to rewrite statutes to add a provision endorsed by the Post.

Matthew Spengler is an associate at Hale Westfall who focuses his practice on real estate and eminent domain litigation, as well as general commercial litigation. He contributes to the firm’s Rocky Mountain Appellate Blog, where this post originally appeared on August 11, 2011.

Colorado Court of Appeals: Use of Anonymous Written Ballots to Fill Council Vacancies and Appoint Judge During Public Meeting Not a Violation of State Law

The Colorado Court of Appeals issued its opinion in Henderson v. City of Fort Morgan on August 4, 2011.

Colorado Open Meetings Law—Ballots—Public Meetings.

Plaintiff Ronald Henderson appealed the trial court’s C.R.C.P. 12(b)(5) dismissal of his claims for injunctive and declaratory relief against defendant, City of Fort Morgan, asserting that the Fort Morgan City Council’s voting procedure violated the Colorado Open Meetings Law (COML). The order was affirmed.

Henderson contended that CRS § 24-6-402(2)(b) and the COML prohibited the Fort Morgan City Council’s use of anonymous written ballots to fill two council vacancies and appoint a municipal judge during its public meetings in 2009 and 2010. Neither § 24-6-402(2)(b), nor any other section of the COML, imposes specific voting procedures on local public bodies. Instead, the COML requires that the public have access to meetings of local public bodies and be able to observe the decision-making process. Henderson does not claim that the public was prohibited from observing, participating in, or listening to the discussions regarding the candidates or the deliberation process. The ballots were completed in the public meeting, and the result was announced at the public meeting. Therefore, the City Council’s voting procedure could not have violated the statute or the COML. Accordingly, the trial court properly dismissed Henderson’s action under C.R.C.P. 12(b)(5) for failure to state a claim based on this ground.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on August 4, 2011, can be found here.

Directive Concerning Public Access to Court Records Revised by Colorado Supreme Court

The Colorado Supreme Court has issued a revised Chief Justice Directive, which was adopted and effective as of August 1, 2011. The changes reflect amendments made by the Public Access Committee.

The purpose of CJD 05-01 is to provide reasonable access to court records while simultaneously ensuring confidentiality in accordance with existing laws, policies, and procedures. In addition, the directive is intended to:

  • provide direction to Judicial Branch personnel
  • promote the accuracy and validity of the information in court records that is released to the public
  • provide guidance regarding the content of the Judicial Branch web sites

Click here to review the public access policy in its entirety.

SB 11-190: Modifying State Department Performance and Accountability Reports to Be Citizen-Centric

On March 10, 2011, Sen. Irene Aguilar, D-Denver, and Rep. Lois Court, D-Denver, introduced SB 11-190 – Concerning increased transparency of state government through annual citizen-centric performance and accountability reports by departments. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The “State Measurement for Accountable, Responsive, and Transparent (SMART) Government Act” requires each department to prepare a 4-page annual performance report. The bill modifies the report to be a citizen-centric performance and accountability report by:

  • Requiring specific information on each page of the report;
  • Requiring a brief table of contents and information about the department, the population served by the department, financial data, costs for services provided, and the department’s anticipated future challenges; and
  • Requiring the office of state planning and budgeting and the departments that create their own reports to design the report to maximize its visual appeal and readability.

Assigned to State, Veterans & Military Affairs Committee; the bill is scheduled for committee review on Monday, March 21 at 1:30 pm.

Since this summary, the bill was postponed indefinitely.

Summaries of other featured bills can be found here.