CFOIC’s holiday wish list

By Jeffrey A. Roberts
CFOIC Executive Director

All we want for Hanukkah/Christmas/Kwanzaa (besides world peace, an end to the pandemic and less partisan rancor) are better open-government laws for Coloradans.

It’s our job at the Colorado Freedom of Information Coalition to call attention to the systemic roadblocks that make it harder for journalists and the public at large to get information from state and local government entities as well as the courts.

And over the past few years, state lawmakers have taken steps to remove some of these roadblocks. Senate Bill 17-040 clarified the public’s right to copies of digital public records in useful file formats. House Bill 19-1119 opened records statewide on law enforcement internal affairs investigations. Senate Bill 20-217 will establish statewide requirements for disclosing footage from body-worn cameras and dashboard cameras once certain provisions of that sweeping police accountability bill take effect in 2023.

But there’s a lot more to do, in our humble opinion.  

In October, CFOIC published a University of Denver law student’s report (with recommendations) on Colorado Open Records Act (CORA) research-and-retrieval fees, which can make public records so costly they are effectively off limits to the public. Over the summer, we noted shortcomings in the 2019 police IA records bill and suggested ways to make the disciplinary process even more transparent. A year ago, we published another DU law student’s research on the retention (or lack thereof) of government emails.

For several years now, CFOIC president Steve Zansberg and past president Tom Kelley have urged Colorado’s judicial branch to establish a uniform standard for the sealing and suppression of criminal court records (and the Colorado Supreme Court finally may be close to doing so.) We’ve noted that Colorado is not among the many states that give citizens a way to challenge open records denials without going to court, and we’ve supported several unsuccessful bills to address the trend among Colorado law enforcement agencies to fully encrypt their radio traffic.

Here are some other items on CFOIC’s holiday wish list:

A deadline for responding to requests for criminal justice records. Unlike CORA, the Colorado Criminal Justice Records Act (CCJRA) has no response-time requirement, except for basic arrest reports and a few other “records of official action.” Journalists and law firms sometimes wait months for criminal justice records.

Denver Post reporter Elise Schmelzer told CFOIC she requested some internal affairs summaries from the Aurora Police Department on Feb. 18. Five months later, she finally received a grand total of 13 pages. Schmelzer recently got the following response to an emailed request from Aurora PD’s open records coordinator: “We will be out of the office from Monday, November 23, 2020 and will return on Wednesday, December 2, 2020. This email will not be monitored during this time; we apologize for any inconvenience.”

“This is insane,” said Kelley, an attorney who uses CCJRA to investigate cases of apparent excessive use of force by police. “CCJRA was drafted to provide for response times parallel to CORA, which, under ordinary circumstances, requires a response to a records request in three business days or less. Accordingly, CCJRA likewise requires release of mandatorily disclosable ‘official action’ records in three business days. But, as to other criminal justice records that are subject to discretionary release, the law requires an explanation of any denial of a request within three business days of the denial, but renders this deadline meaningless by providing no deadline for making and communicating a decision whether to allow or deny the request to trigger the three-day deadline.

“Some criminal justice agencies take the position they can wait as long as they choose to make that decision, including until any related criminal proceeding is concluded (which can take more than a year). I would like to think the legislature did not intend this absurd predicament for requesters, but now it will take a change in the language of the law or a judicial decision to eliminate that unacceptable practice and bad policy.”

Mandatory awarding of attorney fees for CCJRA lawsuits. If you win a CORA lawsuit, the law says you “shall” be awarded court costs and reasonable attorney fees. But there is no such guarantee in the criminal justice records law.

Under CCJRA, a court “may” order the records custodian to pay a prevailing applicant’s court costs and attorney fees and only upon a finding that “the denial was arbitrary and capricious.”

“For policy reasons that apply to criminal justice records even more strongly than public records custodians under CORA, the CORA attorney fee shifting provisions should apply to CCJRA in actions in which the requester prevails,” Kelley said. “That is so because under CORA a requester may prevail without showing fault on the part of the custodian, while fault by the custodian must be shown for a requester to prevail under CCJRA.

“A CCJRA requester prevails only if (1) the custodian declines a request within the clearly defined categories of “official action records,” or (2) the custodian commits an “abuse of discretion” (a difficult legal standard to meet) in denying access to other criminal justice records. There is no legitimate policy reason for giving criminal justice agencies a pass while providing all other official records custodians an appropriate incentive to comply with the law or be subject to shifting of the burden caused a prevailing citizen who proves a dereliction of that duty.”

More clarity about the cost of obtaining criminal justice records. CCJRA is vague about what agencies may charge records requesters, allowing them to “assess reasonable fees, not to exceed actual costs.” Requesters can’t tell whether charges indeed reflect “actual costs.” Some journalists expressed frustration last year when a police department charged them $250 each for redacted copies of an incident report concerning a former legislator.

No per-page copying fees for PDFs. Both CORA and CCJRA allow governments to charge requesters up to 25 cents per page for standard-sized copies. Some governments see this language as a license to charge 25 cents per page of a PDF. The meager work involved in the creation of electronic — rather than paper — copies should be covered by any charges assessed for research and retrieval.

Last year, the Regional Transportation District stopped charging requesters “a measly quarter” per page for electronic copies of public records after RTD Director Natalie Menten pushed for the change, noting that a 100-page PDF was costing the public $25.

A requirement that digital public records be emailed or made available from a cloud drive. In 2013, the legislature gave CORA requesters the right to have public records sent to them by “United States mail, other delivery service, facsimile, or electronic mail.” The point was to make sure requesters aren’t made to drive long distances to pick up records in person.

But we hear stories of that still happening, and some governments insist on mailing CD-ROMs instead of emailing digital files or uploading them to a cloud drive for retrieval.

Fort Collins attorney Dan Sapienza, who recently waited two months for Estes Park to mail him a CD of emails, told CFOIC he’d like to see language in CORA that includes the option of electronic transfer to a remote storage service or something similar.

“And I would like the method of delivery to not be solely up to the government entity,” he said. “I just hate receiving emails on a CD that I have to physically go get (distance and COVID make that hard) or in the mail, which is terribly unreliable at times.”

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