July 18, 2019

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.

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