Alaska has the bridge to nowhere. Colorado has the Open Records laws that lead to nowhere….but it does not have to be that way.
I make this characterization because it appears only once in the past ten years have any of the largest prosecutorial agencies in Colorado have even investigated a custodian of public records violation. In layman’s terms, I don’t think prosecutorial agencies are bringing charges against public records custodians who knowingly deal in bad faith, as the law prohibits.
It is a midemeanor for a public records custodian to knowingly violate state Open Records law. Colo. Rev. Stat. § 24-72-206 (CORA violation) or Colo. Rev. Stat. § 24-72-309 (CCJRA violation).
I am trying to figure out why the law does not seem to be publicly enforced. In this article I am going to explain the violation mechanism of the law, the records of several of the largest prosecutorial agencies in Colorado, and give some thoughts why the law has not been enforced historically.
**** Before I get into any sort of depth in this article I want to explain that I respect public servants and governmental employees. I have filed Open Records requests in both Arizona and Colorado for the most part without a problem. I think the overwhelming majority of people are good and try to perform their jobs in accordance with the highest professional standards. But for a variety of reasons, no profession is immune from the occasional breach of professionalism. If everyone followed the law, we wouldn’t need police and prosecutors. I really respect the individuals who are public record custodians, they have a very demanding job, and often times have to make very difficult decisions in releasing records. However, I think there is the occasional custodian who is not acting altruistically, and acts instead out of self-interest. This article is not meant to be a condemnation of custodians of public records, but in those rare cases when there is a knowing and willful violation of the law, how to better enforce it as we would with any other law. I think it is time for a public discussion on enforcing Colorado’s Open Record laws.
– Uncopyrighted photo from Flickr.
Open Records Penalty Mechanisms
Open Records laws vary from state to state. Arizona‘s Open Records laws are nothing like Colorado’s. Each state and the federal government have different procedures rules and laws for what is a public record and how to enforce the law. This article will only focus on Colorado’s unique state law.
State law breaks open records requests down into two different categories: Colorado Open Records Act (CORA), and Colorado Criminal Justice Records Act (CCJRA). They create different rules for what is publicly available content, but the penalties for violation are the same for both. It is beyond this scope of this article to explain the different approach for each Open Records law. It is enough to know that there are two different laws, but the enforcement and penalties are the same.
Any person who willfully and knowingly violates the provisions of this part 2 is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than one hundred
dollars, or by imprisonment in the county jail for not more than ninety days, or by both such fine and imprisonment.
– Colo. Rev. Stat. § 24-72-206 (CORA); See Colo. Rev. Stat. § 24-72-309 (CCJRA).
The exact same language is used in the corresponding CCCJRA statute, except instead of applying the violation to “part 2,” it is applied to “part 3.” Colo. Rev. Stat. § 24-72-309 (CCJRA). Part 3 is the CCJRA section of the law. That is the only difference. The Colorado Revised Statutes can be accessed through CoCommonlaw if you want to read the law.
There are a couple of things to note about this violation. The custodian must know he/she is violating the law. In other words it probably has to be a flagrant violation, it cannot be a close call. Also, the custodian must violate the statute willfully. If the custodian’s boss threatens to terminate him or her if certain records are released because of an Open Records request, then it is likely the custodian can say they did not make a voluntary decision. In order to keep their job they were kinda forced not to distribute the records. So it has to be a knowing and willful violation of the Open Records law.
The penalty of a misdemeanor is a public right of action. That means only government prosecutorial agencies can bring the charge against a custodian of public records. It would lead to chaos if private individuals could ask a judge for someone to be imprisoned. “Your honor, throw the book at them.” I am fine with leaving that responsibility up to prosecutors.
Individuals have tried to enforce the misdemeanor sanction privately, without the aid of a prosecutorial agency, and it did not end well.
“Any reasonable inquiry by counsel before signing the pleadings in this case would have revealed the lack of any private right of action under C.R.S. 24-72-204, counsel is put on notice that her actions in signing the Complaint and Amended Complaint to include the claim may be subject to sanctions under Fed. R. Civ. P. Rule 11.” McDonald v. Miller, 945 F. Supp. 2d 1201, 1205 (D. Colo.2013). “The exclusive remedy for a violation of the Colorado Open Records Act is C.R.S. § 24-72-206. That section does not provide for a private right of action.” Shields v. Shetler, 682 F. Supp. 1172, 1175 (D. Colo.1988) (citation omitted).
The federal judge in McDonald thought so poorly of the attempt of a private individual trying to enforce the violation penalty of a misdemeanor the judge threatened to sanction the lawyer.
Ouch! Okay, okay, so private individuals cannot enforce the misdemeanor violation as much as private parties would like. Gotta get the government to prosecute the criminal charges.
Lack of Charges Brought By Prosecutors
It seems logical that if private citizens cannot bring a misdemeanor violation against a public records custodian, then a state prosecutor must bring the charges — or what I referred to previously as a public right of action.
I checked with several of the largest prosecutorial agencies in the state to see if they have brought charges in the last ten years for a custodian who knowingly and violated Colorado Open Records law. The agencies I talked to included the: Colorado Attorney General, Denver District Attorney, Arapahoe District Attorney, Jefferson County District Attorney, Adams County District Attorney, and the Boulder County District Attorney. I know this is not a comprehensive search of all state prosecutorial agencies in Colorado. I figured chances are if charges have been brought against a custodian of public records, it is most likely to occur in the most populous counties.
Only the Arapahoe County District Attorney’s Office could identify an investigation into the state Open Records law during the past ten years. Through the investigation the Arapaohoe District Attorney did not find enough evidence to pursue a prosecution.
All of the other agencies did not have any responsive documents at all. “We have not prosecuted any criminal actions involving the statutes you inquired about during the time frame you mention,” responded Doug Jackson, Sr. Chief Deputy Denver District Attorney.
But why is this the case? Think of all of the different government departments and agencies throughout Colorado on the state and city level. Just in the Denver alone there are bunches of City and County level departments: City Attorney, District Attorney, Mayor’s Office, City Council, Assesor, Clerk and Recorder, Sheriff, Police Department, Department of Parks and Recreation, Department of Finance, Department of Information and Technology (they run the Denvergov.org website), Public Works, Denver International Airport (parts of it are run by the City), City and County Courts, Public Library, Animal Care and Control, Fire Department, School Board, Board of Ethics (yes this is real), Zoning Board, Zoo, etc. This is just a partial list for Denver.
Now think of all the different government departments on the state and city level for the areas of which I asked. There are maybe hundreds governmental departments in those jurisdictions. It is difficult to believe there has not been one criminal charge brought in the past 10 years for a knowing and willful violation of the Open Records law.
One prosecutor attributed the lack of investigations due to the fact the police may have investigated the claims. That is a fair point. There may be many more investigations that my informal survey did not uncover because police or law enforcement investigated the claims.
Regardless, prosecutorial agencies would still know if they pursued charges in court. As I indicated above, it appears none of the agencies I spoke with have taken a custodian to court with a public right of action.
Informing the Public and Prosecutors
A couple of prosecutors told me informally they think it is because the public did not ask for any charges to be brought. I think there may be a lot of truth to this assertion.
A couple of the custodians I spoke with were confused about what I wanted when I asked if they had prosecuted any Open Record violations. “Don’t you mean a motion to compel?” I got that answer more than once. I had to explain that I did not mean a motion to compel and I had to cite the specific violation portion of the statute. There could be a misconception for both individuals and government officials that a motion to compel is the only remedy available.
It seems the violation portion of the statute is talked about so little that both private citizens and many of the custodians may be unaware of the potential criminal sanctions.
Even for those who are aware of it may not know how to report it. Do you call the police for an investigation? Or do you directly dial the prosecutor’s office? In the case of the latter, I had one prosecutor’s office who did not even appear to have time for my call. “We investigate cases that we get from the police. We really don’t handle citizen’s complaints — call the police for an investigation.” Then after I did more research and I called back I was promptly transferred to their evidence department. It took a couple of people to get me in contact even for the custodian of the public records. And this is one of the largest prosecutorial agencies in Colorado! In order for individuals to be able to report a suspected crime of Open Records violation, then there should be a clear way to report it.
It does not even feel like the Colorado General Assembly took the violation seriously when they wrote the law. The minimum penalty is a $100 fine. Parking tickets can often times be $100 bucks around Denver and Boulder — I unfortunately have found this out first-hand. Is the $100 fine supposed to be a deterrent? Maybe that is why no one knows about it. The penalty indicates the state legislature did not take it very seriously, and does little to empower individuals to request public records from state or city government agencies in Colorado.
Where to Go From Here?
A few of the prosecutors with whom I spoke with suggested that if an individual believes the custodian has knowingly and willfully violated the Open Records law then they should report it to a prosecutorial agency like any other crime. That makes sense to me because that is how the Federal District Court of Colorado suggested that is how it should be handled.
Working together, prosecutors and the public can hold custodians of public records more accountable in the future and give Colorado Open Records laws a road that leads to a greater transparency of the state government.