By Jeffrey A. Roberts
CFOIC Executive Director
An obscure provision in the Colorado Open Records Act allows a government records custodian to initiate legal action against a requester if he or she is unable, in good faith, to determine whether documents are exempt from disclosure. Under CORA’s safe harbor clause, a requester cannot recover court costs and attorney fees even if a judge ultimately finds that the records should have been released.
But what if a government entity sues a requester without making that good faith effort?
Last week, a district court judge in Delta County ruled that the town of Paonia improperly invoked CORA’s safe harbor clause in a lawsuit against Bill Brunner, a former town trustee who had requested numerous records in 2017.
Not only should the town have turned the records over to Brunner, Judge Steven Schultz wrote, he is entitled to be reimbursed for his legal costs and attorney fees because Paonia officials “failed to exercise reasonable diligence or reasonable inquiry” before going ahead with the suit.
“Reverse” freedom-of-information lawsuits like the one against Brunner are becoming more common in the United States as a way for state and local agencies to chill records requests, according to a 2017 article in the IRE Journal, the magazine of Investigative Reporters & Editors. The Associated Press also examined the trend in 2017.
FOI lawsuits typically involve a requester suing the government when access has been denied. In “reverse” cases, the government or a third party asks a judge to stop disclosure, forcing the requester to pay the cost of fighting for the records in court. It happened to 9NEWS in 2016, when two unions unsuccessfully tried to block the release of complaints and disciplinary actions against public school bus drivers. That year, the town of Basalt sued a resident who requested text messages exchanged between the mayor and town clerk.
“It’s a sick, twisted warping of the public records process, and it appears to be getting worse,” wrote David Cuillier, a University of Arizona journalism professor, in the IRE Journal article.
In the Paonia matter, Brunner asked for emails and other documents related to a public works employee, Eric Pace, who was injured on the job and had filed a complaint against the town. “Mr. Brunner intended to use the documents to highlight what he believed were the deliberate shortcomings in the town’s response to Mr. Pace’s complaints,” the judge’s order says.
The town denied the bulk of Brunner’s request, claiming the documents were exempt from disclosure under CORA’s medical records and personnel files exemptions. Brunner’s lawyer asked town officials to reconsider and filed a notice of intent to sue. Instead of responding, Paonia filed the safe harbor lawsuit, claiming that it couldn’t “in good faith” determine its obligation to turn over the records. The town also argued that releasing the documents would cause “substantial injury to the public interest.”
But Judge Schultz found that most of the records requested by Brunner did not contain any medical or health information and that brief references to painkillers in an investigator’s report easily could have been redacted in order to release the document.
Paonia ignored “one of the primary tenets in interpreting CORA exceptions – that they must be construed narrowly, rather than broadly,” Schultz wrote.
“Allowing Paonia to interpret CORA’s medical data exemption so as to exempt the entire (investigator’s) report would limit access to public business, and deprive the citizens of that town of the very information that the Colorado General Assembly has deemed necessary to our democratic government,” the judge stated. “It would also directly encourage public employees and officials to include brief references to private information in public documents simply to shield them from disclosure under CORA.”
The judge also chided Paonia officials for not conferring with Pace, who ended up voluntarily releasing the records to Brunner, and for failing to reach out to Brunner before filing the lawsuit. Schultz cited a 2017 law that requires a 14-day cooling-off period before CORA lawsuits are filed to give records custodians and requesters a chance to settle disputes.
“If Paonia was truly unsure of whether disclosure was required, it could have taken advantage of the fourteen day cooling off period to confer with the defendant to see if legal action could be avoided or some other compromise worked out,” Schultz wrote. “The fact that Paonia did not even try to speak with Mr. Brunner’s attorney during that period is compelling evidence that it failed to exercise reasonable diligence.”
Brunner told the Colorado Freedom of Information Coalition he is happy about the ruling but concerned in general about government entities being able to use CORA’s safe harbor provision as “a tactic to avoid liability.” A requester’s ability to recover legal costs upon prevailing in court “is what makes it possible to go to the mat with these guys.” His legal expenses, he estimates, are at least $15,000.
Asked if the town planned to appeal the decision, Paonia town administrator Ken Knight wrote in an email to CFOIC: “We are still processing the judge’s ruling on this matter and without specific guidance from the Board of Trustees I’m afraid I have no comment at this time.”
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