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Challenging the Constitutionality of Colorado Open Record Act, Fee Provision

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.

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