It seems like Colorado courts are unsure of what their role is or should be in determining the public interest Colorado Criminal Justice Records Act (CCJRA) suits. The Colorado Supreme Court has reversed track in a twenty eight year span in which standard of review the Court applies to CCJRA records requests denials. Currently, the standard is an abuse of discretion. I argue that is a mistake and the system is better served by returning to a de novo standard would be much more appropriate.
Public records statutes are founded upon the philosophy that because governmental decisions belong to the public, the people, as of right, may claim access to them. Colorado public records law lets the citizen strip away the secrecy that surrounds the law-making process and discover who is making the law, for what purposes, to affect whom.
Under the law record custodians by law are supposed to weigh public and private interest when deciding whether to release criminal justice records. Colo. Rev. Stat. § 24-72-305(5). That does not always happen. The Colorado General Assembly apparently thinks it is a good idea that there are not any checks or balances, and in all practicality only to give private citizens a private right to ask Colorado state courts to force custodians to hand over the documents. This puts courts into a difficult position of doing the custodian’s job of weighing the public and private interests.
The Colorado Supreme Court has evolved in its view of how to handle these sorts of situations. Unfortunately, the current view by the Court leaves individuals with little recourse against an obstinate custodian.
This article attempts to trace the how the Colorado Supreme Court treats situations where custodians did not or would not balance private and public interests and how the Court chose to deal with it.
— Photo Credit: Jeffrey Beall, Flickr
Martinelli v. District Court of Denver
The Martinelli case is about accessing police documents which are governed under the CCJRA.
After initiating his civil rights case based upon his arrest by the municipal police department, an individual requested production of police documents, including personnel files and investigation report. The police objected, invoking executive privilege, arguing irrelevancy, and arguing that the requested discovery contained confidential information and was exempted from discovery under the Colorado open records laws.
When dealt with the public interest of the reports and the competing claim of the officers’ right to privacy, the Colorado Supreme Court came up with a balancing test. When privacy is pitted against the public right to know a three part balancing test is invoked: 1. weight of public interest; 2. weight of private interest; 3. is the disclosure the least intrustive way to maintain the right to privacy.
The language of the CCJRA is so broad that it allows custodians to use their discretion when disclosing records, except as otherwise provided by law. Colo. Rev. Stat. § 24-72-305(1). “The legislature was careful to limit key provisions of the open records laws, making those provisions applicable except as ‘otherwise provided by law’ or except as ‘prohibited by rules promulgated by the supreme court or by the order of any court.’ E.g., … sections 24-72-304(1) and 24-72-305(1)(b) and (5), C.R.S. 1973 (1978 Supp.). We construe this limiting language, in the context of this case, as a reference to the rules of civil procedure and as expressive of the legislative intent that a court should consider and weigh whether disclosure would be contrary to the public interest.” Martinelli v. District Court of Denver, 612 P.2d 1083, 1093 (Colo.1980).
The Martinelli court interpreted the legislative intent of the CCJRA is for the courts to “consider and weigh” whether the disclosure is in the public interest or not. This seems to make sense. As I have written about previously, there is not much guidance in the statute at all, and I have argued the CCJRA is arbitrary on its face. With the court performing its own analysis it can act as a check on the custodian’s analysis or lack of analysis.
In re Freedom Colo. Info., Inc. v. El Paso County Sheriff’s Dep’t
The In re Freedom case is also about the release of police documents — just twenty eight years later.
Two John Does were wrongfully arrested and wanted their records sealed. The local newspaper sued for internal affairs investigation files, which included the files by the John Does. The Sheriff asked the court to weigh the public and private interest for it. The district court ordered the release of the entire file, including the names of the John Does.
The Colorado Supreme Court looked at whether it was proper for the trial court to perform the public interest weighing. The Court said it is the custodian’s job to weigh the requests. “The court performs the public and private interests balancing function in regard to the sealing of “official action[s]” pursuant to section 24-72-308(1)(c), C.R.S. (2008), whereas the custodian performs that function in regard to criminal justice records inspection requests consigned to the custodian’s sound discretion under sections 24-72-304 and -305, C.R.S. (2008).” In re Freedom Colo. Info., Inc. v. El Paso County Sheriff’s Dep’t, 196 P.3d 892, 898 (Colo. 2008).
The Court further explained the correct standard for reviewing complaints for the production of criminal justice records is the abuse of discretion standard. “Instead of applying an abuse of discretion standard to the Sheriff’s determination, the district court erred as a matter of law in applying the wrong legal standard when it independently engaged in balancing the public and private interests involved…Utilizing the Martinelli factors, the district court reached its decision as though it were conducting de novo review.” In re Freedom Colo. Info., Inc. v. El Paso County Sheriff’s Dep’t, 196 P.3d 892, 904 (Colo. 2008).
Abuse of Discretion – The Wrong Standard
See the thing about about an abuse of discretion standard is that there needs to be something to compare it to. Otherwise, how do you know if there is an abuse or not? “A failure to take into proper consideration the facts and law relating to a particular matter; an Arbitrary or unreasonable departure from precedent and settled judicial custom.” Legal Dictionary, FreeDictionary.
The CCJRA does not require custodians to keep records for their grants and denials of public record requests. In fact, the CCJRA does not even require custodians to have written guidelines for how they weigh the competing claims. For the district court to implement an abuse of discretion standard, it would need the custodian to provide some sort of information of background to see if it is deviating from it’s prior policies or not. How do you decide if the discretion was misapplied if there nothing else to compare it to?
To justify it’s position the Court lists several cases where it instructs trial courts to use an abuse of discretion standard when reviewing agency decisions:
Delong v. Trujillo, 25 P.3d 1194 (Colo. 2001) is a case where a local government employee was fired for taking leave under the Family Medical Leave Act (FMLA) without following the appropriate procedures. Not only were there stated procedures for how to follow the FMLA, but there was also an appeal within the government to the city’s Career Service hearing office to check to make sure there was not an abuse of discretion. The intra-government appeal board found there was an abuse of discretion as it “determined that the City failed to adhere to FMLA regulations in terminating Trujillo, and therefore, his firing was invalid.” Id. at 1197.
Van Sickle v. Boyes, 797 P.2d 1267 (Colo. 1990) is a case where the current Fire Safety Code required $22,000 worth of fixes to bring the building into compliance. Boulder Fire Department checked out the building twice for infractions. The findings of the fire department were then appealed to a hearing officer appointed by the City Manager. Id. at 1269. When the case was taken to trial court, the decision of the application of the Fire Code was looked at for an abuse of discretion. Id. at 1270.
Ross v. Fire & Police Pension Asso., 713 P.2d 1304 (Colo. 1986) is a case where a Denver Police Officer filed for occupational disability retirement benefits, claiming that she was occupationally disabled as a result of injuries sustained in an on-duty automobile accident. After the officer filed her disability application with the Fire and Police Pension Association Board, the Board told her there was no other position in which she could work. The Board then assigned three orthopedic surgeons to evaluate her condition. None of the orthopedic surgeons could medically substantiate the officer’s claims. Under the Fire and Police Pension Association Rules the officer was allowed to request an evidentiary hearing. After the evidentiary hearing the Board ordered the officer to be examined by three thoracic surgeons this time. The three thoracic surgeons came to different conclusions. The officer then petititoned to the trial court for an abuse of discretion.
It is curious in of the cases the Colorado Supreme Court lists as examples of abuse of discretion all have multiple levels of reviews before it the claim even gets to the trial court.
By the time it gets to the trial court there is a record to review to see if things are being evenly applied.
Also, there are firm rules and guidelines for the decision-makers to follow, unlike in the CCJRA where custodians by law are allowed to create guidelines on a voluntary, ad hoc basis.
De Novo Review Until the CCJRA is Updated
De novo should be the correct standard of review until the Colorado General Assembly writes in more concrete guidelines and more levels of pre-judicial review into the Colorado Revised Statutes.
Having the court starting over and perform it’s own review is a good check against custodians who have no guidance and no pre-judicial checks on their authority.