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.1See 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.
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.
Now, I’ve had a run in or two with the new fee structure for the Colorado Open Records Act (CORA). Colo. Rev. Stat. § 24-72-205 (6)(a) which changed how much government agencies could charge for Open Records requests. Since the provision is relatively new, I want to take a deeper look at it. My initial thought is that it is unconstitutional as it is currently written because of vagueness, arbitrariness, and a violation of fundamental constitutional rights.
The new law allows custodians of records (the record keepers) to create policies to charge for the retrieval and research of public records, only if it meets the following requirements: 1. there must be prior notification of the policies before the request is made; 2. the custodian must publish on her website or otherwise the policies (formally and presumably in a public place so prior notification can occur); 3. it must specify the fee for research and retrieval per hour.
The first hour is free and any additional hours a governmental agency can charge up to $30 dollars an hour.
Under any such policy, the custodian shall not impose a charge for the first hour of time expended in connection with the research and retrieval of public records. After the first hour of time has been expended, the custodian may charge a fee for the research and retrieval of public records that shall not exceed thirty dollars per hour.
— Colo. Rev. Stat. § 24-72-205 (6)(a); See Colorado HB 14-1193 (2014) (full text is provided in a .pdf at the bottom of the page).
Thirty dollars may seem like a nominal fee, but it can quickly add up and keep public documents out of the reach of those who cannot afford it. My Open Records request for the operating procedures of the Denver Sheriff and Denver County Jail estimated that it would take 25 hours to fulfill and would come out to $750. Also, the agency determines how long it will take and there is no way for individuals to challenge it.
Probably a good first step in the analysis of the CORA fee provision would be to see if it is a valid law. If it isn’t a valid law the way it is written it would be struck down. Let’s start our journey there first.
For the life of me, I cannot figure out why the Denver Sheriff is dragging its feet and trying to charge me $750 for the Denver Sheriff and Jail Procedures.
In my initial communications of the Open Records request, I asked for the fees to be waived because the Denver Sheriff did not post a fee structure as required in Colo. Rev. Stat. § 24-72-205 (6) (a).
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.
My contention is the Denver Sheriff does not list any Open Records information on their website whatsoever and according to Colo. Rev. Stat. § 24-72-205 (6) (a), since there was no prior notice I should not have to pay any money for the Open Records request.
In the Denver Sheriff’s response, Denver Records Coordinator Mary Dulacki, told me “the Department of Safety has elected to follow recently enacted CORA policy when it comes to charges for staff time spent researching and retrieving records. That policy can be found on the denvergov.org website, for example at this link: http://www.denvergov.org/city_attorney/DenverCityAttorney/AboutUs/CORAPolicy/tabid/445357/Default.asp.” See Mary Dulacki, Records Request – DSD Policies and procedures (sic). In other words, Records Coordinator Mary Dulacki believes prior notice comes in the form of using a completely unrelated agencies Open Records policies that are neither stated or linked to on the Denver Sheriff’s website.
Denver Records Coordinator is not being completely honest with her explanation of the Open Records policy. There is nothing for her to research or retrieve. I asked for: 1.Denver Sheriff Department Orders; and
2. Denver Sheriff Department County Jail Division Procedure Manual. If there needs to be any research into those policies then the Denver Sheriff is in more trouble than I originally thought. Also, if they have to spend time retrieving the policies,I guess every employee of the Denver Sheriff has the policies and procedures memorized by heart. That is very commendable, but highly unlikely. I think both sets of policies and procedures are available in electronic format and Records Coordinator Mary Dulacki needs to decide what she wants to make public and what to keep private — that doesn’t seem to be part of the law, or what she quoted. BUT that is the reason why she is trying to gouge me. I have already documented that making Sheriff and Jail policies and procedures public is an emerging trend. The Denver Sheriff isn’t exactly breaking new ground here.