Record request — boom contract!
Okay, it is not that easy, but in all seriousness I think Colorado’s public record laws should generally be treated as a contractual agreement for public policy reasons.
I have alluded to several times in previous blog posts on here, I believe individuals are able to use contractually based arguments effectively in the pursuit of public records. To take this argument a step further, many provisions in Colorado’s public records laws would suggest that a request is the start of a contractual situation.
Photo Credit: NobMouse Flickr.
For the sake of this article I am going to use one of the more straightforward definitions, that I think will serve the purposes of this article as being as accessible as possible to all. “A very common definition is that a contract is a promise enforceable at law directly or indirectly.”1 Arthur Linton Corbin, Corbin on Contracts, One Volume Edition, at 2; See Restatement (Second) Contracts § 1 (1981).
One catch in this whole assertion I am making is that there are two different public records laws in Colorado, CCJRA2 Colo. Rev. Stat. § 27-72-301, et. seq. and CORA.3 Colo. Rev. Stat. § 24-72-201, et. seq. Even those these laws act differently at times (the CCJRA essentially restricts more records by design), but their purpose is the same which is to provide citizens access to the Colorado government.4 See Harris v. Denver Post Corp., 123 P.3d 1166, 1170-71 (Colo. 2005). “Although similar in many respects, key definitions of CORA and CCJRA differ in a fundamental way.”
Perhaps the main way to make a promise enforceable by law is for the transaction to have three components: 1. an offer; 2. acceptance; and 3. consideration.5 Sumerel v. Goodyear Tire & Rubber Co., 232 P. 3d 128, 133 (Colo. Ct. App. 2009) (stating “A contract is formed when one party makes an offer and the other accepts it, and the agreement is supported by consideration”). Colorado law is structured so that public records requests will contain the elements of a contract enforceable by law. That is unless the government denies the offer/records request. Read my article on denial of public records requests for an in-depth look on when denials occur and its effects.6 Joe Thomas, Colorado Public Records Denials, Colorado Common Law, available at http://cocommonlaw.com/2015/01/colorado-public-records-denials/.
In terms of contracts, individuals generally make the offers. An individual wants some type of public record from the government and either makes an oral or written request. Just filing a request does not make it an offer. Both parties need to be on the same page (figuratively) and are able to come to a mutual agreement.7 Restatement (Second) Contracts § 24 (1981) (stating “An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.”)
For this to happen the language needs to be specific enough where the records custodian can identify specific records (responsive documents). “Even though a manifestation of intention is intended to be understood as an offer, it cannot be accepted so as to form a contract unless the terms of the contract are reasonably certain.”8 Restatement (Second) Contracts § 33 (1981). If the language is not definite enough and exact documents cannot be identified then an offer does not exist.
One indicator if the language is specific enough is if the records custodians identifies specific records (responsive documents). While this alone is not indicative of an offer, it is at least some guide.
As stated above, the offeror (person making the offer) and the offeree (person receiving) the offer need to be on the same page (figuratively speaking), so there can be a mutual understanding of the terms prior to acceptance.
Contracts under the common law have to be accepted without modification or change, which is why offers must be clear. If there is a change to the offer, it is likely it could constitute a counter-offer and an automatic denial. 9 Restatement (Second) Contracts § 61 (1981). “An acceptance which requests a change or addition to the terms of the offer is not thereby invalidated unless the acceptance is made to depend on an assent to the changed or added terms.”)
In theory, an acceptance should be easy to identify — state and local agencies only have three days to respond. In practice sometimes things are not always as clear as we would like them to be.
Consideration is what makes offers and acceptances binding. Each party must give something in order to make it legally binding. “To constitute consideration, a performance or a return promise must be bargained for.”10 Restatement (Second) Contracts § 71 (1981). If both sides do not get something in return, then it is just a promise to do something. For example, if I promise my girlfriend to take out the garbage; there is no consideration in that agreement at all, making it unenforceable.
Under Colorado public records laws each side gets something in return. Individuals are given access to government information. Government agencies are able to charge for their services. If both sides can come to terms with a mutual understanding then a contract can be formed.
State laws force government agencies to perform on public records requests. Custodians under the CCJRA have more leniency on whether to act, but are still compelled on some level to act. This statutory compulsion requiring records custodians can potentially be problematic.
If this theory of contract is asserted over state agencies, it is possible the state agencies could say no contract ever formed because by state law they were required to do so. You can’t be forced into a contract.
There are two problems with this type of argument, as I see it.
1. State agencies act on behalf of the people and their power derives from good of the whole. “All political power is vested in and derived from the people; all government, of right, originates from the people, is founded upon their will only, and is instituted solely for the good of the whole.” 11 Colo. Const. art. II, § 1. It is difficult to see how public agencies which are given their power to act on behalf of the people could argue that the Colorado Constitution does not provide consideration for a public records contracts (these are the requests that do not fall within an exception).
2. Public policy makes these contracts enforceable. The history of public records in Colorado shows the Legislature enacted public records in part to legitimize governments actions and functions. The legitimacy that public records provide for the government agencies may be enough to create consideration on behalf of the government.
References [ + ]
|1.||↑||Arthur Linton Corbin, Corbin on Contracts, One Volume Edition, at 2; See Restatement (Second) Contracts § 1 (1981).|
|2.||↑||Colo. Rev. Stat. § 27-72-301, et. seq.|
|3.||↑||Colo. Rev. Stat. § 24-72-201, et. seq.|
|4.||↑||See Harris v. Denver Post Corp., 123 P.3d 1166, 1170-71 (Colo. 2005). “Although similar in many respects, key definitions of CORA and CCJRA differ in a fundamental way.”|
|5.||↑||Sumerel v. Goodyear Tire & Rubber Co., 232 P. 3d 128, 133 (Colo. Ct. App. 2009) (stating “A contract is formed when one party makes an offer and the other accepts it, and the agreement is supported by consideration”).|
|6.||↑||Joe Thomas, Colorado Public Records Denials, Colorado Common Law, available at http://cocommonlaw.com/2015/01/colorado-public-records-denials/.|
|7.||↑||Restatement (Second) Contracts § 24 (1981) (stating “An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.”)|
|8.||↑||Restatement (Second) Contracts § 33 (1981).|
|9.||↑||Restatement (Second) Contracts § 61 (1981). “An acceptance which requests a change or addition to the terms of the offer is not thereby invalidated unless the acceptance is made to depend on an assent to the changed or added terms.”)|
|10.||↑||Restatement (Second) Contracts § 71 (1981).|
|11.||↑||Colo. Const. art. II, § 1.|