August 23, 2019

SB 16-037: Modifying Requirements of Record-Keepers Under Colorado Open Records Act

On January 13, 2016, Sen. John Kefalas and Rep. Dan Pabon introduced SB 16-037Concerning Required Public Access Under the “Colorado Open Records Act” to Public Records as Defined By Such Act Contained in Digitally Stored Data Maintained By Governmental Bodies. The bill has passed through the Senate Health & Human Services and Appropriations Committees with amendments in both committees. It passed through the Senate with amendments and was assigned in the House to the Health, Insurance, & Environment Committee, where it was amended and referred to Appropriations.

This bill proposes to modify to the existing legal requirements under the Colorado Open Records Act (CORA) pertaining to the inspection of open records.

The bill updates outdated statutory language used to describe public records kept in miniaturized, electronic, or digital form as a foundation for inspection requirements in connection with such records.

It deletes existing language that would require the official custodian to take any measures necessary to assist the public in locating specific records and to ensure access to the records without unreasonable cost or delay. The bill proposes to substitute provisions that would require the official custodian to provide records in any nonproprietary file format and storage medium specified by the requestor. This would include digital copies of any computer files, email, records uploaded to an online storage location shared with the requestor, access through viewing stations for records kept on microfiche, or, at the custodian’s discretion, direct electronic access.

The bill also requires the official custodian to manipulate electronically or digitally stored data in order to delete any confidential data in response to a records request. Removal of such confidential information or data does not trigger certain requirements specified in CORA for the payment of fees for the generation or copy of a public record. The official custodian, however, may charge the requestor for the actual cost of the digital storage used, if any, and a research and retrieval fee for the time spent gathering the information.

Mark Proust is a 2016 JD Candidate at the University of Denver Sturm College of Law.

Colorado Court of Appeals: Office of Attorney Regulation Counsel is Part of Judicial Branch and Is Not Subject to the Colorado Open Records Act

The Colorado Court of Appeals issued its opinion in Gleason, Supreme Court Regulation Counsel v. Judicial Watch, Inc. on April 26, 2012.

Colorado Open Records Act—Colorado Judicial Branch.

Both petitioner, the Supreme Court Regulation Counsel, and the Office of Attorney Regulation Counsel (collectively, regulation counsel) and respondent, Judicial Watch, Inc., appealed the trial court’s order granting most of respondent’s request for records and denying the rest. The order was affirmed in part and reversed in part, and the case was remanded.

Judicial Watch requested that regulation counsel grant it access to certain records under the Colorado Open Records Act (CORA). The records pertained to the appointment of regulation counsel by the Chief Justice of the Colorado Supreme Court, at the request of the Chief Justice of the Arizona Supreme Court, to investigate the conduct of lawyers in Arizona. Regulation counsel denied Judicial Watch’s request.

Regulation counsel asserted that the trial court erred in granting any of Judicial Watch’s request for records. Regulation counsel is subject to the direction of the Supreme Court, and participates in the process of regulating attorneys. Thus, regulation counsel is part of Colorado’s Judicial Branch of government. CORA does not include the judiciary within the terms “state” and “state agency.” Because regulation counsel is part of the Judicial Branch, it likewise is not part of the state or a state agency for the purposes of CORA. Therefore, the trial court erred when it concluded that CORA governed Judicial Watch’s request for regulation counsel’s records and that those records must be disclosed under CORA. The case was remanded to the trial court to enter an order denying Judicial Watch’s entire request.

Summary and full case available here.

HB 12-1036: Clarifying the Investigative Files Exemption to the Colorado Open Records Act

On January 11, 2012, Rep. James Kerr introduced HB 12-1036 – Concerning Clarification of the Exemption from the”Colorado Open Records Act” for Investigative Files. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill clarifies that the current exemption from the “Colorado Open Records Act” for investigative files applies to those files compiled for any civil, administrative, or criminal law enforcement purpose.

Summaries of other featured bills can be found here.

Colorado Court of Appeals: Award of Attorney Fees Pursuant to CORA Mandatory If Denial of Inspection Was Improper and Party Seeking Disclosure of Records Prevailed

The Colorado Court of Appeals issued its opinion in Colorado Republican Party v. Benefield, State Representative on November 10, 2011.

Colorado Open Records Act—Confidential Constituent Communications—Prevailing Applicant—Attorney Fees.

In this Colorado Open Records Act (CORA) matter, petitioner Colorado Republican Party (CRP) appealed the trial court’s order denying its Motion for Reasonable Costs and Attorney Fees against respondents Colorado State Representatives Debbie Benefield, Bernie Buescher, Morgan Carroll, Gwyn Green, Mary Hodge, Liane “Buffie” McFadyen, Wes McKinley, Michael Merrifield, James Riesberg, and Judy Solano (collectively, Representatives) under CRS §24-72-204(5). The order was reversed and the case was remanded.

Representatives denied access to surveys requested by CRP based on the confidential communication exception of CORA. The court, following an in camera review, ordered the Representatives to produce the completed surveys to CRP, concluding that they were public records subject to disclosure under CORA. A division of the Court of Appeals held that some of the surveys were excepted from disclosure as confidential constituent communications. After remand, the trial court found that Representatives disclosed all non-confidential constituent communications and denied CRP’s request for attorney fees.

CRP argued that the trial court erred in denying its request for attorney fees and costs pursuant to CORA. First, the law of the case doctrine does not apply to the court’s 2007 order awarding attorney fees and costs to CRP. The trial court later reversed the 2007 award after the case was remanded to the trial court from the first appeal. Additionally, unless a statutory exception applies, an award of attorney fees pursuant to CORA is mandatory if: (1) the custodian’s denial of the right of inspection was not “proper”; and (2) the party seeking disclosure is the “prevailing applicant.” If a document whose production is required under CORA was withheld, the denial of the right of inspection of such document was not proper.

Here, the Representatives appear to have acknowledged as much when, after the trial court’s initial order to produce documents, but before filing of the Representatives’ opening brief in the first appeal, they produced 742 surveys to CRP. As to those records, as well as the 183 surveys they disclosed after remand, the right of inspection was improperly denied.

Further, a prevailing applicant is any party who brings a CRS §24-72-204(5) action against a public records custodian and obtains any improperly withheld public record as a result of such action. Here, CRP prevailed by obtaining production of 742 of the surveys pursuant to court order.

Finally, CORA’s costs and attorney fees provision does not afford the trial court discretion. Because the Representatives were required by the Court of Appeals’ ruling to produce at least one document, CRP prevailed. Further, because the Representatives never asserted that they were “unable, in good faith, after exercising reasonable diligence, and after reasonable inquiry, to determine if disclosure of the [records] was prohibited,” they were not shielded by the safe harbor against attorney fees award under CRS §24-72-204(6)(a). The order was reversed and the case was remanded for the trial court to determine the reasonableness of attorney fees to be awarded to CRP.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on November 10, 2011, can be found here.

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.

Colorado Supreme Court: Governor’s Personal Cell Phone Billing Statements Are Not Public Records under the Colorado Open Records Act

The Colorado Supreme Court issued its opinion in Denver Post Corp. v. Ritter on June 20, 2011.

Colorado Open Records Act—Public Records—Failure to State a Claim.

The Denver Post Corp. and its reporter Karen Crummy (collectively, the Post) requested access to Governor Bill Ritter’s cell phone billing statements. The Governor provided access to cell phone bills for his state-paid Blackberry device, but refused to provide access to billing statements for his personal cell phone on the ground that those bills are not “public records” under the Colorado Open Records Act, CRS §§ 24-72-201 to -206 (CORA). CORA defines public records as “writings made, maintained, or kept by the state . . . for use in the exercise of functions required or authorized by law.” The Supreme Court held that the Post’s complaint is conclusory in nature and fails to allege facts that, if accepted as true, state a claim that the Governor’s personal cell phone billing statements are likely public records under CORA. Therefore, the burden did not shift to the Governor to demonstrate that the phone bills are not public records under CORA. The judgment was affirmed.

Summary and full case available here.

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.