December 11, 2018

CJD 05-01, “Directive Concerning Access to Court Records,” Amended by Colorado Supreme Court

On Tuesday, October 18, 2016, the Colorado Supreme Court adopted changes to Chief Justice Directive 05-01, “Directive Concerning Access to Court Records.” The changes to this Chief Justice Directive were proposed by the Public Access Committee, and they replace previous public access policies. The changes include clarification of wording that was causing confusion, a mandate that court records involving a child victim be redacted before being released to the public, inclusion of applications for public defenders, court-appointed counsel, or guardians ad litem as not accessible to the public, and changes to Appendix C for consistency purposes. The full Chief Justice Directive is available here.

Rule Change 2016(10) Regarding Public Access to Records Released

On September 22, 2016, the Colorado Supreme Court adopted Rule Change 2016(10), amending the rules regarding public access to information and records. The changes affect Rule 2, “Public Access to Administrative Records of the Judicial Branch.” A redline of the changes is available here.

The changes are relatively minor, including adding a designation of custodian of records for the Office of Respondent Parents’ Counsel and adding a reference to the Office of Respondent Parents’ Counsel in the definition of “judicial branch.” An error in the numbering of subsections was corrected in Section 3 of the rule. Sections 4 and 5 of Rule 2 and Rules 1 and 3 were unchanged.

CJDs Regarding Wiretapping and Access to Court Records Amended

Two of the Colorado Supreme Court’s Chief Justice Directives were amended last week. CJD 85-02, regarding wiretap reports, was updated on March 31, 2016, to include the location of the electronic wiretap form on the United States Court website, provide updated information for submission to the U.S. courts, and to clarify that all applications and extensions are to be reported whether granted or denied.

CJD 05-01, regarding access to court records, was revised on April 1, 2016, based on the review of a subcommittee of Public Access Committee members. The revisions to CJD 05-01 were substantial. A summary of the most substantial changes is reprinted here:

Section 3.00: General Provisions
• Section 3.00 was expanded to include additional definitions of common terms used in this policy.
• Section 3.01 defines the Department’s Case Management System (CMS) as all Department information systems designed to capture, monitor, and track court and probation content.
• Section 3.02 defines the role of the State Court Administrator, Clerks of Court, and Chief Probation Officers as custodians of court records. This Section also states that Clerks of Court are responsible for assigning document or case security levels.
• Section 3.03 provides the definition of “court record” for purposes of this policy. Section 3.03(a)(2) was added to clarify that any records related to a defendant or probationer that are created, collected, received, and maintained by a probation department are court records.

Section 4.40: Access to Aggregate and Compiled Data from Court Records
• Section 4.40(a)(2)(ii) was added to allow (but not require) requests for compiled or aggregate data specific to one judicial district to be submitted to, prepared by, and released from that judicial district. Data requests specific to one judicial district may also be submitted to, prepared by, and released from SCAO.
• Section 4.40(a)(4) was added to clarify that all reports generated from the Department’s CMS constitute compiled or aggregate data. If a request is made to release these reports outside of the Department, all provisions of CJD 05-01 must be met. This includes all reports created through COGNOS, and management reports generated through ICON/Eclipse/JPOD, etc.
• Section 4.40(f)(4) was added to recognize the need of interagency teams/Best Practice Teams to share information within the team that includes personally identifiable data, and to require the use of a Memorandum of Understanding regarding the protection and use of data.

Section 4.60: Court Records Excluded from Public Access
• Section 4.60(b)(7) was amended to add Probate protected proceedings case types to those case classes/types that are not accessible to the public unless the court orders otherwise.
• Section 4.60(d) was amended to alphabetically list records that are not accessible to the public without a court order.
• Additional records were added to the list, including: (1) Audio/Video recordings collected, received, and maintained by the Court; (7) Domestic Relations Memoranda of Understanding, and Qualified Domestic Relations Orders; (19) Medical marijuana registry application or card; (20) Motion for Informa Pauperis; and (21) National Crime Information Center (NCIC) or Colorado Crime Information Center (CCIC) printed reports.
• Criminal history records checks were removed from this list.
• Section 4.60(e)(6) was amended to clarify that Social Security Numbers (SSNs), including partial SSNs, are to be redacted from pleadings or documents prior to being released.
• Section 4.60(e)(7) was added and requires that tax identification numbers be redacted from pleadings or documents prior to being released.

Section 5.00: Accessing Court Records
• Section 5.00 was amended to align more closely with the requirements outlined in P.A.I.R.R. 2 (Public Access to Administrative Records of the Judicial Branch) regarding the procedure to access records.
• Section 5.00(d) was amended to clarify that if court records cannot be provided upon request, the custodian will provide court records within three business days. If, due to extenuating circumstances, the custodian cannot provide records within three business days, the custodian may have an additional seven business days to respond.
• Sections 5.00 (d)(1-5) provides definitions of the extenuating circumstances under which the custodian may provide court records within the seven business day extension.

Addendum C: Data Request for Purposes or Research, Including Personally Identifiable Data, Pursuant to Section 4.40(f) was created to be used with researchers that request compiled data that includes personally identifiable data components.

Although e-filing specifications are not defined in CJD 05-01, this policy does address “court records subject to remote access” (Section 4.20). As a result, the Public Access Committee also approved case information for Probate trust and estate case types to be opened via remote access in ICCES. ITS requires sufficient time to make necessary updates to ICCES, therefore, this change will occur on or before 9/1/2016. For probate trust and estate cases filed prior to 9/1/16, the security level of public documents filed in these cases will be “protected”; after 9/1/16, only certain public documents (to be specified by the Clerks of Court) will be auto-protected.

For all of the Colorado Supreme Court’s Chief Justice Directives, click here.

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.

CJD 15-01, CJD 11-02 and CJD 85-27 Repealed by Colorado Supreme Court

On Wednesday, November 18, 2015, the Colorado State Judicial Branch announced the repeal of two Chief Justice Directives: CJD 11-02, authorizing the Colorado Civil Access Pilot Project, and CJD 85-27, concerning indigency determinations for drug and alcohol treatment. Earlier in November, the Colorado Supreme Court repealed CJD 15-01 regarding public records. CJD 11-02 was repealed because the pilot project has ended and the Colorado Rules of Civil Procedure were amended to incorporate provisions of the pilot project. CJD 15-01 was repealed because the Supreme Court issued new rules regarding public access to records of the judicial branch.

For a complete list of the Colorado Supreme Court’s Chief Justice Directives, click here.

Public Comments Being Accepted for Proposed New Rule to C.R.C.P. Chapter 38

The Colorado Supreme Court posted a proposed new rule to Chapter 38 of the Colorado Rules of Civil Procedure, “Public Access to Records and Information.” The new rule addresses public access to administrative records of the judicial branch, and would be numbered as Rule 2 (current Rule 2 would become Rule 3).

The public comment period for the proposed new rule is now open. Written comments may be submitted to the Clerk of the Supreme Court, Christopher Ryan, no later than 5 p.m. on September 18, 2015. Additionally, a public hearing on the proposed new rule will take place on October 1, 2015, at 1:30 p.m. Persons wishing to participate in the public hearing should confirm their presence to Mr. Ryan no later than September 21, 2015.

For more information about the proposed rule, click here.

 

CJD 05-01 Regarding Public Access to Records Amended by Colorado Supreme Court

On Friday, September 5, 2014, the Colorado State Judicial Branch announced amendments to CJD 05-01, “Directive Concerning Access to Court Records,” effective September 4, 2014. The Chief Justice Directive seeks to provide guidance for access to court records while protecting the privacy of litigants. The directive also contains guidance for Judicial Branch personnel and promotes standards for content on Judicial Branch websites, and provides for a Public Access Committee to periodically review and update the rules for public access. Rules for public access to court records are also included in CJD 05-01.

For the full text of CJD 05-01, click here. For all of the Chief Justice Directives, click here.

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.

Colorado Court of Appeals: No Error in Delay Between Request and Delivery of Records

The Colorado Court of Appeals issued its opinion in Madrigal v. City of Aurora on Thursday, May 22, 2014.

Colorado Criminal Justice Records Act.

In July 2011, an Aurora Police Department (APD) officer shot and killed plaintiffs’ husband and father, Juan Contreras, in a parking lot. Pursuant to the Colorado Criminal Justice Records Act (CCJRA), plaintiffs requested from the City of Aurora (City) various records pertaining to this incident. The City initially denied inspection of the records and failed to respond to plaintiffs’ subsequent request for a written statement of the grounds for the denial. On plaintiffs’ application, the district court issued an order directing the City to show cause why it should not permit inspection. The City ultimately disclosed almost all of the records requested. The court determined that the City did not abuse its discretion either in delaying release of the records disclosed or in denying release of the records not disclosed until after the conclusion of the criminal investigation.

On appeal, plaintiffs contended that the district court erred in determining that the City did not abuse its discretion in handling their records request. The City (or, more precisely, the official custodian of the records) did not abuse its discretion in delaying the release of the records for ten months, pending the completion of the criminal investigation into Contreras’s death. Furthermore, the plain language of the statute did not authorize the district court to order the custodian to pay court costs, attorney fees, or penalties. Therefore, the court did not err in denying plaintiffs request for sanctions.

Summary and full case available here.

HB 13-1041: Setting Parameters for Transmission of Records Under the Colorado Open Records Act

On Wednesday, January 9, 2013, Rep. Brittany Pettersen and Sen. John Kefalas introduced HB 13-1041 – Concerning Procedures Governing the Transmission of Public Records that are Copied in Response to a Request for Inspection of Such Records Under the “Colorado Open Records Act.”  This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Upon request by a person seeking a copy of any public record for which a right to inspection exists under the “Colorado Open Records Act” (CORA), the records custodian must transmit a copy of the record by U.S. mail or by any other practicable means of delivery. No fees related to transmission may be charged to the record requester for transmitting public records via electronic mail.

The custodian shall notify the record requester that a copy of the record is available but will only be sent to the requester once the custodian receives payment for postage if the copy is transmitted by United States mail, or payment for the cost of delivery if the copy is transmitted other than by United States mail, and payment for any other supplies used in the mailing, delivery, or transmission of the record and for all other costs associated with producing the record. Upon receiving such payment, the custodian shall send the record to the requester as soon as practicable but no more than three business days after receipt of such payment.

On Feb. 1, the House amended and approved the bill on 2nd Reading.

Since this summary, the bill passed 3rd Reading in the House.