Records custodians can and do at times refuse public records requests. But when does a denial occur?
This relatively simple and straight-forward question is actually complex and at times open to interpretation. Neither the the Colorado Open Records Act (“CORA”), nor the Colorado Criminal Justice Records Act (“CCJRA”) defines what a denial is.1 See Colo. Rev. Stat. § 27-72-202 CORA; Colo. Rev. Stat. § 27-72-302 CCJRA. However, as both statutes permit custodians to “deny the right of inspection,” of records,2 Colo. Rev. Stat. § 27-72-204(2) CORA; Colo. Rev. Stat. § 27-72-305(5) CCJRA. even though it is not defined in the statute. It is also important to note it does not appear the courts have weighed in on the matter in either denial of CORA or CCJRA records.
— Photo credit: Flickr Andres Musta
In this article I want to focus on when a denial of public records occurs.
Perhaps the most common type of denial is when the records custodian expressly says no to the records request.
Express denials are the easiest to spot. For example: “I [records coordinator] do deny the records request for records X, Y, and Z.” This type of denial comes right out and says in no uncertain terms that the records custodian is not willing to produce the records. Ideally, the custodian uses the term ‘denial’, in the response, because that particular word is used in the statute, but it is not necessary.
Any unambiguous language will most likely be seen as an express refusal. But there is not always express language.
When There is No Express Denial
If there is not an express denial, how can an individual requesting records be sure of what has transpired?
First, definitions need to be provided so we know what we are working with. What is a denial? Well since it is not defined by CORA or the CCJRA, the Colorado Revised Statutes and the Colorado Supreme Court instructs to use plain language as a definition. “Words and phrases shall be read in context and construed according to the rules of grammar and common usage.”3 Colo. Rev. Stat. § 2-4-101. “Statutory words and phrases should be given their ordinary and accepted meaning unless they have acquired a technical meaning through legislative definition or judicial construction.”4 Parrish v. Lamm, 758 P.2d 1356, 1368 (Colo. 1988): See also People v. Browning, 809 P.2d 1086 (Colo. App. 1990).
Courts will then look to the plain meaning of denial, since it is not defined in the statute. Dictionaries such as Dictionary.com, Merriam Websters, etc. can all be used to create a plain meaning of the word.
I think a fair definition of the word denial can be: refusal to satisfy a request or desire.
Now that there is a definition, it can be applied to complex situations that may arise from public records requests.
Constructive Denials / Counter-offers
For example, a records coordinator says the records may released if paid in full, up front, for potential review and redaction. The records coordinator may argue that this is not a denial because they will provide the records requested according to their guidelines. The individual requesting the records may argue this is a denial because the original request is not being met. This is where things can complicate when there is no express denial, but records are not given.
If there is not a denial of the records then one is not left with much of a cause of action in court. In other words, the records custodian can ask the judge to toss out a public records lawsuit because there is not a violation of state law — no denial ever occurred for the records custodian to be sued over. This is why it is important to determine whether there is a denial or not.
I argue that generally when the original request is met with an agency’s modified offer that it is a denial.
I look at it as a contractual situation. The individual requesting the records is making an offer under state public records law. Then if the original offer is modified in any way that is a counter-offer under contract law. “A counter-offer is made by an offeree to his offeror relating to the same matter as the original offer and proposing a substituted bargain differing from that proposed by the original offer.”5 Restatement (Second) of Contracts § 39(1); Nucla Sanitation District v. Rippy, 344 P. 2d 976, 979 (Colo. 1959) (noting “If the acceptance modifies the proposition in any particular, it amounts to nothing more than a counter proposition”). Unless there is some wording or payment to keep the original offer open, the counter-offer under contract law acts as a denial of the original offer. “An offeree’s power of acceptance is terminated by his making of a counter-offer.”6 Restatement (Second) of Contracts § 39(2).
The idea of a counter-offer acting as a denial of the original offer is illustrated in the movie, My Cousin Vinny.
Looking at the public records request as a contractual situation can help provide guidance in situations where there is not an express denial of records.
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