August 21, 2019

Colorado Court of Appeals: Lengthy Delay of Disclosure of Investigative Reports While During Appeal May Disserve Public Interest, Despite Risk Defendant Would Be Harmed by Release of Reports

The Colorado Court of Appeals issued its opinion in Romero v. City of Fountain on May 12, 2011.

Colorado Open Records Act—Temporary Restraining Order—Colorado Criminal Justice Records Act—Stay Pending Appeal.

Plaintiff Frank Romero sought a temporary restraining order (TRO) against the City of Fountain from releasing an internal investigative report concerning his actions while he was a police officer. The district court entered a TRO precluding release of the report. After a closed hearing, the court denied the preliminary injunction request, but stayed the order, giving Romero through April 6, 2011 to file an appeal with the Colorado Court of Appeals. Romero filed a notice of appeal on April 1. The Court’s motions division denied the request for a stay pending appeal.

Romero is a former police officer with the City of Fountain. He filed a complaint to preclude the City of Fountain and the Fountain Police Department from releasing an internal investigation report concerning allegations that while in uniform he had inappropriate conduct with two women. The report had been requested by a local television station under the Colorado Open Records Act (CORA). Defendants notified Romero by letter dated March 11, 2011, that they intended to release two summaries of the investigation to the station on March 18, 2011.

Romero filed his complaint on March 17, 2011. He sought to preclude disclosure under CORA and the Colorado Criminal Justice Records Act (CCJRA), contending the report contained personal information that would irreparably harm him if released. On March 18, the district court entered a temporary restraining order and set a hearing for March 23.

At the hearing, the district court consolidated the case with a separate case in which Romero sought permanent injunctive relief and held a closed hearing. The court then denied the preliminary injunction after applying the factors set forth in Rathke v. MacFarlane, 648 P.2d 648 (Colo. 1982).The court gave detailed reasons on the record for its ruling but stayed its order for fourteen days to allow Romero sufficient time to file an appeal with the Court of Appeals.

On April 6, the Chief Judge granted a temporary stay through April 15 and directed Romero to obtain and file, under seal, a transcript of the March 23 hearing. On receipt of the transcript, the Court’s motions division granted continuances of stay through May 20 to give adequate time to rule on the motion for a stay pending appeal. The motions division determined that the stay should be denied.

C.A.R. 8(a) sets forth the standards for a stay pending appeal. The Court found no Colorado appellate decisions setting forth the standards regarding a request for a stay from an order denying a preliminary injunction. The Court looked to the “traditional standards” in the federal courts for a stay: (1) whether the applicant has made a strong showing that he or she is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.

The Court found that Romero demonstrated a risk that he will be harmed if the stay is not granted and the summaries are released. However, it agreed with the trial court that Romero could not show a likelihood that he would prevail on the merits of his claim under the CCJRA.

The Court found that the district court correctly determined that the CCJRA was the applicable statute, not CORA. The record supported the finding that the police chief took into account Romero’s privacy interest and the public interest in disclosure, and exercised his discretion in recommending disclosure. Because a court is not to substitute its judgment in balancing these interests for those of the police chief, the Court could not conclude that Romero likely would succeed in showing that the district court abused its discretion in denying a preliminary injunction. Moreover, given the allegations in the complaint against Romero, the Court found that a lengthy delay of the disclosure of the reports while the case makes its way through the appellate courts might disserve the public interest.

The motion for a stay pending appeal was denied. However, because the release of the summaries likely would terminate Romero’s right to injunctive relief as a practical matter, the Court extended the stay through May 20 to allow Romero to seek relief from the Colorado Supreme Court with respect to this order.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on May 12, 2011, can be found here.

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