By Jeffrey A. Roberts
CFOIC Executive Director
The Colorado Supreme Court late last week quietly adopted new rules for accessing administrative records of the Colorado Judicial Branch, incorporating several recommendations made by the public and news media earlier this fall.
Posted on the Court’s website Friday afternoon, the rules are substantially different from those endorsed by the branch’s Public Access Committee and put into effect last May via an interim directive from Chief Justice Nancy Rice.
The final document addresses some areas of concern raised in testimony and in written comments submitted to the Court by attorney Steve Zansberg on behalf of the Colorado Freedom of Information Coalition, Colorado Press Association and Colorado Broadcasters Association.
“These organizations are grateful that the justices listened carefully and responded to the concerns they raised about the draft rules,” said Zansberg, the CFOIC’s president. “The final rules reflect a major overhaul of the draft rules which tracks much closer to the language of the Colorado Open Records Act (CORA), while also providing commentary explaining where the final rules diverge from that law. That is precisely what these organizations urged.”
Still, Zansberg said, the three groups are “less than completely satisfied” with certain provisions that treat the administrative records of the judicial branch “very differently” than the records of the two other branches of state government and all local governments in Colorado. “Several of these discrepancies are noted in the (rules), but no meaningful explanation is provided for why these records should be treated differently.”
In particular, internal investigative files on judicial branch employees are not available for public inspection under the rules, except for the outcome of an investigation. Internal affairs files on the conduct of all other public employees in Colorado are presumed to be open for public inspection, except for portions that contain highly personal or private information unrelated to work performance.
Other areas of greater secrecy for judicial branch records involve records defined as “work product” and the terms and conditions of contracts between the judicial branch and private vendors.
The Supreme Court wrote its own rules of access to judicial branch administrative records because two state court decisions determined that the judiciary – unlike the executive branch, legislature and all other governments in Colorado – isn’t covered by CORA.
The Court reworked several provisions of the Public Access Committee’s draft, notably a section detailing which portions of a judicial branch employee’s personnel file must be kept confidential.
The draft proposal would have prohibited the disclosure of nearly all employee information, but the final document narrowly defines restricted personnel data to mean only “home addresses, telephone numbers, financial information and other information maintained because of the employer-employee relationship.” That definition closely tracks language in CORA and specifically does not include applications of past or current employees, employment agreements, performance ratings, compensation and amounts paid to terminated employees.
The new rules “permit the disclosure of many records so long as confidential personal information is redacted or otherwise not disclosed,” the Supreme Court wrote.
Among other changes, the Supreme Court also rewrote the draft to more closely mirror CORA’s time frames for responding to records requests and CORA’s language for determining when records custodians can cite the deliberative process privilege to withhold material that is “so candid or personal that public disclosure is likely to stifle honest and frank discussion” within the branch.
Zansberg said the new judicial branch rules probably won’t affect requests made of the Office of the State Public Defender for information on how much tax money was spent to keep Aurora theater shooter James Holmes from the death penalty. The judicial branch’s CORA exemption was one reason cited by the public defender earlier this year in refusing such requests from journalists. Colorado Rules of Professional Conduct also forbid the release of that information, according to Public Defender Doug Wilson.
It remains to be seen whether the new rules will alter some state lawmakers’ interest in sponsoring 2016 legislation to require CORA-like records regulations for the Colorado Judicial Branch. Rep. Polly Lawrence, R-Douglas County, who testified at a Supreme Court hearing on the draft records policy, could not be reached for comment Monday.
Follow the Colorado Freedom of Information Coalition on Twitter @CoFOIC.