By Jeffrey A. Roberts
CFOIC Executive Director
“Judicial records belong to the American people; they are public, not private, documents.”
So says the first page of a brief the Colorado Freedom of Information Coalition submitted to the Court of Appeals this week, challenging a judge’s suppression order that has made an entire divorce case file and the order itself available only to the parties.
It is one of many quotes from case law in the filing that support a strong presumption of public access to court records in the United States and Colorado. Another: “The public has a fundamental interest in understanding the disputes presented to and decided by our courts, so as to assure that they are run fairly and that judges act honestly … Sealing an entire case prevents critical public monitoring of the judge and judicial process.”
The underlying case in CFOIC’s appeal, which involves a deputy in the Colorado Attorney General’s Office, is being litigated outside of public view in a special state judicial system that is mostly available only to “the rich, famous and well-to-do,” according to a Denver Gazette investigative series published last year.
“Private judges” hired to handle divorce cases under this system — retired jurists appointed by the chief justice of the state Supreme Court — “suppress them from public view at far greater rates than in cases that rely on district court judges, leaving some legal experts wondering whether affluent clients are simply buying their way into secrecy,” the newspaper reported.
CFOIC moved to intervene in Kaufmann v. Kauffman after learning about the private court system from The Gazette stories. Following a hearing, former Denver District Court Judge William Meyer of the Judicial Arbiter Group decided that disclosure of the register of actions is “warranted” as well as “a few other documents which include notices of hearings and various proposed orders regarding extensions of time.”
But he did not grant CFOIC’s request to open the case file with only “truly sensitive” information redacted.
That ruling should be reversed because Meyer failed to apply the presumption of public access outlined in case law, the Colorado Rules of Civil Procedure and Chief Justice Directive 05-01, the judicial branch’s court records policy, argues CFOIC’s appellate brief, drafted by organization president and First Amendment attorney Steve Zansberg.
“This case presents the question whether a fairly routine domestic case in the District Court for the City and County of Denver, Colorado, should be treated any differently, in terms of public transparency of judicial proceedings, than the literally tens of thousands of other such cases, simply because it is presided over by a retired judge under the auspices of § 13-3-111, C.R.S. and C.R.C.P. 122,” Zansberg wrote, citing the statute and civil rule authorizing the appointment of former judges to handle certain cases.
The Court of Appeals, the brief notes, held more than three decades ago “that the presumption of public access to judicial records applies, with full force, to domestic relations cases adjudicated in District Courts.”
But in Kaufmann v. Kaufmann, the judge’s order suppressing the file is itself suppressed as are two previous orders in the case. “Neither of those prior judicial decrees, which the District Court presumably articulated its rationale for denying the public’s right to access any of the judicial records in the file, is available to the public,” it says. “The same is true of the Register of Actions and all of the parties’ motions, papers, exhibits, and all judicial orders resolving substantive disputes between the parties.” (A copy of the register of actions provided to Zansberg, but not to the public, “does not list any motion filed by either party … asking to suppress any judicial records in the case file,” a footnote in the brief says.)
CFOIC’s brief cites a 1999 Colorado Supreme Court decision that C.R.C.P. Rule 121 “creates a presumption that court files will be open to the public.” The rule “declares, as a matter of statewide policy, that the public is entitled to inspect all records on file in any Court, unless and until a judicial finding has been made that ‘the harm of the privacy of a person in interest outweighs the public interest’ in accessing judicial records.”
Under Chief Justice Directive 05-01, CFOIC adds, judicial records in domestic relations cases are presumptively open to the public, with the policy identifying only six types of documents that are commonly filed as suppressed.
Redaction, as an alternative to blanket suppression, must be considered as a less restrictive means to protect any privacy interests that outweigh the public’s presumption right of inspection, CFOIC’s brief argues.
“Colorado’s Supreme Court has made clear that when a member of the public seeks access to judicial records on file in a civil or criminal case, the custodian of such records (typically the clerk’s office) must not take an ‘all-or-nothing’ approach, but must provide the requester with all portions of those records not properly withheld for compelling reasons,” it says.
Meyer imposed the suppression order in Kaufmann v. Kaufmann in February 2022.
A lawyer for Steven Kaufmann, the deputy AG, argued against CFOIC’s motion in Meyer’s court. But the other party in the case, Alexis Denny Kaufmann, did not object to having the suppression order set aside, asking in a court filing only that her personal medical information be protected “in the least restrictive manner and as supported by law.”
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