By Jeffrey A. Roberts
CFOIC Executive Director
A new analysis of open records laws in all 50 states highlights several ways Colorado legislators could make criminal justice records more accessible to journalists and the public.
The report for the Colorado Freedom of Information Coalition by Eric Wolaver, a 2022 graduate of the University of Denver’s Sturm College of Law, focuses on four areas: police internal affairs files, incident reports and investigative records, fees for public records and agency time to respond to records requests.
News organizations often are frustrated by provisions in the Colorado Criminal Justice Records Act (CCJRA) that give police departments and sheriff’s offices quite a bit of discretion to withhold records, delay their responses to requests and charge whatever amounts they deem appropriate to fill records requests.
“Recent amendments to the CCJRA with respect to internal affairs files and police body-worn camera footage have improved the law and advanced the public interest of transparency into law enforcement operations,” Wolaver’s report concludes. “Still, in many respects, the law lags behind its peers in other states.”
Permitting records custodians to withhold most criminal justice records is one significant way CCJRA differs from some other states’ laws, particularly with respect to incident and offense reports, police blotters and investigative records.
Under CCJRA, most criminal justice records can be withheld if an agency determines that disclosure would be “contrary to the public interest.” In making that determination, the Colorado Supreme Court ruled in 2005, the agency is required to balance: 1) the public interest to be served in allowing inspection; 2) the agency’s interest in keeping confidential information confidential; 3) privacy interests; 4) the agency’s interest in pursuing ongoing investigations; and 5) other pertinent considerations.
In practice, this means a law enforcement agency can easily deny public and journalist requests for incident and offense reports, arrest affidavits, police blotter records, 911 recordings, radio dispatch recordings and any records used in an investigation. For example, it took authorities five months to release most records on the June 21, 2021, shootings in Arvada’s Olde Town that left three people dead, including a police officer and a “good Samaritan.”
Many states exempt investigatory records from disclosure, but not every state takes a blanket approach, Wolaver found.
In Arizona, reports of ongoing investigations are supposed to be disclosed unless a law enforcement agency can “specifically demonstrate how the production of the documents would violate a privacy interest or would prejudice the state’s interest in the investigation,” he wrote. In Massachusetts, exemptions are determined on a case-by-case basis “and where the exemption for investigatory records is applied, it must be construed narrowly, allowing redaction only of information that would so prejudice law enforcement as to run counter to the public interest.”
“These are smart approaches,” Wolaver wrote, “because they directly target the potential problems associated with releasing investigatory records without imposing an overbroad exemption.”
CCJRA mandates that a small subset of “official action” records — mostly basic arrest reports — must be made public if requested. The legislature recently made progress by also requiring the disclosure of police body-worn camera footage of many incidents and records of many completed internal affairs investigations.
Wolaver’s report lauds both the body cam and IA records provisions, but each could be improved.
The IA records law, enacted in 2019, “provides access to records of a lot of incidents of police misconduct — those involving members of the public.” However, “there are plenty of instances of police misconduct that don’t directly intersect with a private individual but are still of public concern.” The report cites the example of an Aurora police officer who was found passed out drunk in his car three years ago. The IA file could have been withheld under Colorado’s law because the officer’s misconduct did not “involve a member of the public.”
The body cam footage law, which went into effect last year, pertains to incidents “in which there is a complaint of peace officer misconduct.” It is “responsive to public pressure demanding more transparency into police misconduct, but it does not go far enough in making all body-worn camera footage available to the public,” Wolaver wrote. For example, the Boulder County Sheriff’s Office has withheld some body-cam footage of the 2021 Marshall Fire as “contrary to the public interest.”
“Some states make body cam footage more available by treating it as a public record by default, subject only to the general exemptions that apply to all records requests in that state,” the report notes. Body-cam footage is considered a public record in Florida, for example, unless recorded in a private residence, a health care facility, or another location where a person would have a reasonable expectation of privacy.
CCJRA’s lack of a specified response time for most records subject to the law is particularly frustrating for Colorado journalists who cover crime. The new law on body cam footage sets deadlines for the release of footage. Otherwise, only those “official action” records mentioned above must be produced within a stated period of time — three working days. Earlier this year, the Aurora police department was telling reporters it wouldn’t respond to their requests for at least 12 weeks because of a backlog.
“Imposing a mandatory response time on agencies has several key benefits,” Wolaver’s report says. “Primarily, it puts requesters and agencies on notice and sets expectations on both sides. But it also prevents agencies from sitting on records requests for inordinate amounts of time as a method of denial.”
Several states require a much quicker response, according to Wolaver’s research. Georgia, for example, mandates a response from agencies within three business days with records that can be located and produced within that period. If more time is needed, the agency must provide the requester with a written description of the records and an estimated timeline for their production.
In Idaho, agencies have three working days to produce records or deny a request. They can get an extension of up to 10 business days if additional time is needed to locate or produce records. In Michigan, a requester can expect an agency to respond within five business days by providing the records, providing them in part, providing a written denial, or providing a written notice that a 10-day extension is necessary (available only in “unusual circumstances”).
“These states — comprising nearly a third of the country — embody the spirit of open records laws by making records available to the public not only in legal theory, but in practice,” Wolaver wrote.
Finally, regarding fees for criminal justice records, CCJRA “does not do enough to constrain how much an agency charges for a request,” the report says. The statute allows agencies to charge no more than their “actual costs” to search, retrieve and redact records in response to a request, but agencies are not required to explain the charges.
“The result is an opaque process where criminal justice agencies can charge prohibitively expensive fees — like $4,400 to find out how often police discharge their taser guns in Colorado Springs — with little accountability.”
Some states limit fees by fixing an hourly rate but providing the first hour at no charge, as in the Colorado Open Records Act. Some states do not charge for staff time or only charge if requests are unusual in some way. Requests in Washington are free except for customized records, and Indiana agencies are permitted to charge search fees under limited circumstances.
Other states limit the scope of charges. Wisconsin prohibits agencies from charging for the redaction of records. Delaware doesn’t allow charges for the legal review of requested records.
Read “How the Colorado Criminal Justice Records Act Stacks Up: A Comparative Analysis of the Act’s Scope, Waiting Period, and Fee Provisions.”
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