DIY FOI: Lessons learned from challenging a denial of access without a lawyer

Can I do it myself?

The Colorado Freedom of Information Coalition is sometimes asked this question by folks who want to challenge a denial of public records or a closed-door meeting they believe was held improperly.

No rules restrict members of the public who are not lawyers from filing actions themselves (proceeding “pro se,” as it is referred to in the courts) under the Colorado Open Records Act (CORA) or the Colorado Open Meetings (Sunshine) Law. Indeed, the Colorado Judicial Branch provides resources and support for “Self-Represented Litigants” here and here. (Note that a corporation or another such artificial entity, other than a natural person, can only appear in court through an attorney).

To supplement those resources, the CFOIC is building an online repository of pleadings that have been filed in previous lawsuits under CORA and the Sunshine Law. 

Below are tips on filing pro se by Todd Shepherd, investigative reporter for the Independence Institute and editor of The Complete Colorado. Shepherd is representing himself in a CORA lawsuit.

During the CFOIC’s panel on criminal justice records in March, 7NEWS investigative reporter John Ferrugia made an important point. In Colorado, challenging a government’s decision to withhold records means “I have to take you to court,” he said. “It’s going to cost me $5,000 just to find out” if the records can be released.

ToddShepherdsmall

Todd Shepherd

The same holds true for all kinds of public records, not just criminal-justice records, as well as audio recordings of executive sessions. If you’ve been denied access and you think the law is on your side, suing the government might be the answer. But litigation is intimidating and can be costly, although you may recover some or all of those costs if you prevail.

Should you act as your own attorney? Every circumstance has its own set of pros and cons, but here I’ll lay out some of what you need to know to file suit pro se, the legal term for acting as your own lawyer.

I’ve got an ongoing lawsuit against the Colorado Division of Insurance (DOI) that I filed pro se. Even though I may be months away from trial, I’ve learned a few helpful lessons from my experience:

Notify the records custodian in writing at least three business days in advance that you intend to file a lawsuit. Providing such written notice is a requirement under CORA for an “applicant” to be able to recover costs if he or she prevails in the lawsuit.

Find similar cases, such as those made available by the CFOIC. The “complaint” is the document that initiates a civil lawsuit. In it, the person initiating the lawsuit (“plaintiff”) lays out the key facts, in numbered paragraphs, stating how he or she believes the law has been violated, and what technical finding or action he or she is asking of the judge. The best way to compile a solid, thorough complaint is to – for lack of a better term – crib off of similar complaints. Similar complaints will “guide” you through the Roman numeral outline and format the document should follow. Read several examples, and it should become clear which items are appropriate, and which are not, for your particular situation.

Blank court filing documents are available on the website of the Colorado Judicial Branch. The top portion of a document is called the “caption” and will likely be filled out the same way for any documents you file after the initial complaint.

Be ready to pay a court filing fee of $200 to $400. The good news, at least in my experience, is that it covers all other documents you might file after the complaint. The current schedule of court filing fees is available here.

When filing the complaint, you must also file a summons addressed to the person or government you’re suing. The summons directs that party to provide an “answer” to you and the court. A summons form is available as Form 1 in the Colorado Rules of Civil Procedure (page 225 of the pdf).

You will need to hire and pay a process server to deliver copies of the summons to the party you’re suing. You cannot be the server. By law, it must be a disinterested party.

Before having the summons served, make sure you know where the documents need to go. In my case, it was important to serve the DOI’s lawyers – the Attorney General’s office – in addition to the DOI itself. Had I only served the DOI and not the AG, it could have given the DOI an additional two to three weeks to legally respond to the complaint.

Once the summons is served, you will get affidavits back from the process server. You will also get a small set of instructions with timelines to follow mailed to you from the court.

The instructions from the court will tell you which courtroom and judge you have “drawn” (which division or courtroom your case has been assigned to). You should call the clerk of that courtroom and ask how dates and times are set for trials. For example, the clerk may tell you, “We set trial dates at this phone number on Tuesdays, Wednesdays and Thursdays from 9 a.m. to 11 a.m.”

Coordinate a date and time for selecting a trial date with the opposing attorney for the government entity. Also discuss how many days you think will be needed for the trial. You will file a “motion to set,” which notifies all parties that you’re going to try and set the date/time for the trial. The clerk will give you several options. Once you and opposing counsel have agreed on a trial date, you’ll let the clerk know.

Finally, you will file one more document called a “notice of trial” to make your court date official.

The government lawyers opposing your challenge aren’t allowed to “pull the wool” over your eyes by misleading you in the early stages. Because you are filing pro se, they are obligated to help you in small ways with some of these procedural issues. They are prohibited, however, from offering you legal advice (as am I).

This is not to say they have to answer every one of your questions, or that you should rely on them too heavily. But you can work with them with a strong degree of confidence knowing that they can’t “trick” you during the procedural filing process.

Disclaimer: Nothing on this page or on this website is, or is intended to be, legal advice. Legal advice can be given only by an attorney in your jurisdiction who is familiar with the unique circumstances of your case.

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