The more I research the Colorado Criminal Justice Records Act (CCJRA), the more I believe it is unconstitutionally arbitrary on its face and should be scrapped completely and rewritten. During the rewriting process it should be incorporated with Colorado Open Records Act to make a single policy for Open Records in Colorado. In other words, the Colorado General Assembly should use their discretion and take out the arbitrary discretion of the CCJRA.
All criminal justice records, at the discretion of the official custodian, may be open for inspection by any person at reasonable times, except as otherwise provided by law, and the official custodian of any such records may make such rules and regulations with reference to the inspection of such records as are reasonably necessary for the protection of such records and the prevention of unnecessary interference with the regular discharge of the duties of the custodian or his office.
— Colo. Rev. Stat. § 24-72-304 (1).
The statute permits custodians to make rules and regulations surrounding the release of criminal justice records in Colorado. What this means is that every law enforcement agency in the state of Colorado could have different rules and regulations for the inspection of criminal justice records. If it isn’t bad enough that each agency can decide for itself without any guidelines from the state, the statute makes creating rules and regulations voluntary! Are you kidding me, Colorado General Assembly? Who in their right mind thought creating guidelines on a voluntary, ad hoc basis was a good idea?
The Colorado General Assembly seemingly contradicted their own legislative intent for the CCJRA. The legislative intent of the CCJRA is the “maintenance, access and dissemination, completeness, accuracy, and sealing of criminal justice records are matters of statewide concern and that, in defining and regulating those areas, only statewide standards in a state statute are workable.” Colo. Rev. Stat. § 24-72-301 (1) (emphasis added). But in another breath later on in the same chapter gives the custodian of the records discretion, without any guidelines as how to apply the discretion.
If it is a matter of statewide concern, and the legislature intended to have statewide standards, something must have broke down along the way. There is too much discretion in how custodians may disseminate criminal justice records for there to be any intellectually honest claims of statewide standards associated with it. Something has got to give. Is each custodian allowed to voluntarily make their own rules and regulations? Or are there some sort of statewide standards that custodians must consider? What gives Colorado General Assembly?
The law is arbitrary and contradictory, plain and simple.
The Denver Sheriff responded to my Open Records request that I sent last Friday. They outright denied my request in part and ignored part of my request.
An effective discipline system is one that is fair, rational, efficient, reasonably consistent and transparent, reflects the mission, vision and guiding principles of the Denver Sheriff Department.
— Denver Sheriff Discipline Handbook, *1 (taken from the free version online and not the $15 CD, like Ms. Dulacki indicated was the only available way of ascertaining the Discipline Handbook).
I guess a system that is “fair, rational, efficient, reasonably consistent and transparent” only applies to police discipline and not civilian discipline when it comes to the Denver County Sheriff.
The response to my Open Records request included an outright denial to my request for the Denver Sheriff Operating Procedures. The decision was based upon a balancing test without any analysis, just conclusory statements. The Denver Sheriff also concealed a free version of the Denver Sheriff Disciplinary Handbook while instructing me the only way to receive Denver Sheriff Disciplinary Handbook is to pay $15 for a CD. Lastly, the Denver Sheriff outright ignored the law I stated mandating the publication policies for Open Records Requests, if a department will charge for fulfilling the request. The Denver Sheriff linked to the Denver City Attorney’s policy in the official response.
*** I wrote a follow-up post to this where I list all of the police and sheriff procedures and polices are posted online. Read it here.
A lawsuit was settled for jailhouse abuses on Aug. 4, 2014 for $3.25 million. There are no details of what happened during the abuses, or what the Sheriff’s did or did not do to amount paying a couple of million of dollars for a single incident. The settlement offer comes right out of the taxpayer’s money. Because the taxpayers are fundamentally footing the bill, I think it is in the public’s right to know the operating procedures and directives for both the Denver Sheriff and the Denver Jail. Also, how can I see if I agree or disagree with the policies if they are not made available. This is an infringement upon federal and state free speech protections, trampling upon the people’s right to criticize the procedures of the Denver Sheriff.
Denver Sheriff Response
The Denver Sheriff disagrees.
First, they broke my two requests into three parts. 1. The Denver Sheriff’s Department Orders. 2. The Denver Sheriff’s Department Discipline Handbook. 3. The Denver Jail Department Order.
The Denver Sheriff believes the entire Denver Sheriff’s Department orders is private. They claimed in the letter, that disclosing the policies and procedures are discretionary and subject to a balancing test laid down by the Colorado Supreme Court in Harris v. Denver Post, 123 P.3d 1166 (Colo. 2005). The Denver Sheriff listed the five factors used by the court (a-e on the letter below), but did not explain how the factors resulted in their conclusion. Note to Denver Sheriff: it defeats the purpose of citing case law with factors that require balancing, if you do not give any analysis and just give a conclusion.
Conclusory statements by definition do not involve balancing, just for your information Denver Sheriff’s Office. I know you enforce the law, but you should know how to apply a balancing factor test appropriately. For example, the consideration that I may go out to dinner with my girlfriend might be: 1. money; 2. what kind of food we eat; what time we go out; 4. who we go with. However, if I just decide I am not going because it is my choice (in my discretion) without weighing money, time, type of food, or who our company may be then I am not balancing the factors. The police department just paid lip service to the court case they cited and did not even give me the benefit of weighing the five factors.
Ms. Dulacki told me the Denver Sheriff’s Discipline handbook can be purchased for $15 on a CD. What she failed to tell me is that the Denver Sheriff’s disciplinary policies are available online, on the Denver Sheriff’s website for free. I asked for a free copy to be provided to me because no Open Records pricing structure is available on the Denver Sheriff’s website (see more on no notice of the open records policy next paragraph). I also asked for it to be provided via email if possible. Ms. Dulacki could have emailed me the very same link I provide to you below, instead she blatantly ignored my request and tried to make me pay when it was not necessary.
Either Ms. Dulacki tried to conceal this fact from me, or she is incompetent in her job. Her job title is the Records Coordinator. It reflects very poorly upon her if she cannot even keep track of where the Denver Sheriff’s Discipline Handbook is, and is not.
The Denver County Jail’s Operating Procedures are not classified like the Sheriff’s counterpart; however the Denver Sheriff said it would cost me $30 dollars an hour to go line-by-line to remove sensitive information. I have no problem with the Denver Sheriff removing sensitive information. I am not trying to be an absolutist in my request, some procedures need to remain classified to keep the integrity of current and future operations. The problem I have is I was very specific in my Open Records request and noted that the Denver Sheriff did not publicize any fee structures in accordance with HB 14-1193 which modifies Colo. Rev. Stat. § 24-72-205 (6) (a) (stating “A custodian may impose a fee in response to a request for the research and retrieval of public records ONLY if the custodian has, prior to the date of receiving the request, either posted on the custodian’s web site or otherwise published a written policy that specifies the applicable conditions concerning the research and retrieval of public records by the custodian, including the amount of any current fee”) (emphasis added). To get around my argument, the DENVER COUNTY SHERIFF claims the fees are clearly publicized on the DENVER CITY ATTORNEY website. See Mary Dulacki, Email, “Records Request – DSD Policies and procedures,” footnote 1. Not only is this the wrong level of government (city instead of county), it is a completely different department. My request was for the Denver County Sheriff and Denver County Jail. I called the Denver County Sheriff’s general information number and was transferred to Mary Dulacki. I am still not sure if Ms. Dulacki works for the Denver Sheriff or just for Denver County in general. Either way, there should be pricing listed on Denver Sheriff’s website, or at the very least a link to the pricing structure on the Denver County website. Ms. Dulacki did neither. The best she could do was to link to Denver City Attorney’s website. Sorry, but this is insufficient notice. The new law (which is now in effect) clearly says a custodian may publish a fee only if the custodian has prior to the request published the pricing structure. Ms. Dulacki did not do that and tried getting around it by citing to the Denver City Attorney. Ms. Dulacki is the contact person for records request, there should be a page with her name on it, not the Denver City Attorney. This is potentially a procedural due process violation, since I informed Ms. Dulacki of the new law in my request to her last week.
1. How about the Denver Sheriff’s Office take 10 minutes and create their own web page for CORA policies and fee structures. I can help you update your website, and I won’t even bill you $30 an hour. Please email me if you’re interested in my help, Ms. Dulacki.
2. On a related note, Ms. Dulacki, if you need help tracking down official policies, before you start sending out charges to put things on CDs, why don’t you email me so I can run a basic internet search to see if they are available online for free. Since keeping track of all the official records that are available online for free seems to be more than you can keep track of right now, contact me before you send out any fees. I’ll save the taxpayers time and money. You know what I might not even charge you that $30 research fee that you seem to be so fixated upon. You know my email address.
My big beef with the Denver Sheriff’s response is the seemingly conflicting message.
The Denver County Jail’s Operating Procedures have never before been made public, but Ms. Dulacki is willing to make them public by going line-by-line to make sure only public information is included. This could be a huge undertaking.
Why is Mary Dulacki willing to make the Denver County Jail’s Procedures available for the first time, but not the Denver Sheriff’s Procedures? What is fundamentally different about the Denver Sheriff’s Operating Procedures that the private information cannot be redacted out of it too? This is why Ms. Dulacki’s analytical omission, by failing to apply the Harris balancing test (remember the five points, a-e) to the current situation. If she properly analyzed the law perhaps I would have some hint as to the answer of my question.
If some sort of balancing test will be used by the court to determine if the records will be released or not, the court will have to determine if Mary Dulacki is acting arbitrarily or not with her decisions. Or if there is some real policy concerns behind her decisions. Since she did not explain herself to me, I probably may not know unless a court gets involved.