Successfully challenging a public-records denial should ensure legal fees, amicus brief argues

By Jeffrey A. Roberts
CFOIC Executive Director

Successfully challenging a denial of public records entitles you to some portion of your attorneys’ fees even if it was a records custodian who initiated the court action, the Colorado Freedom of Information Coalition and two other organizations argued in a friend-of-the-court brief filed Wednesday.

The brief, submitted with the Colorado Press Association and Colorado Ethics Watch, asks the Colorado Supreme Court to uphold a January 2014 appellate court ruling in Reno v. Marks. In that case, Chaffee County Clerk and Recorder Joyce Reno sought to keep citizen elections monitor Marilyn Marks from inspecting voted ballots from the 2010 general election.

Reno made one anonymous ballot public after the passage of HB 12-1036, which set guidelines for releasing voted ballots under the Colorado Open Records Act (CORA). A district court judge concluded that Marks shouldn’t get attorneys’ fees because she was not a “prevailing applicant” in a court action filed by Reno, but the Colorado Court of Appeals reversed that decision.

Several local government organizations have filed briefs in support of Reno’s Supreme Court appeal, including the Colorado Municipal League, Colorado Counties Inc. and the Colorado Association of School Boards.

Reno argues that, in order to be awarded attorneys’ fees, someone must apply for and receive a court order requiring a custodian to allow the inspection of a public record. In this case, Reno petitioned the district court under CORA to let her withhold the records sought by Marks because, she contended, disclosure would cause “substantial injury to the public interest.” A brief filed by the Chaffee County attorney in September notes that the county clerk voluntarily produced the one voted ballot only after HB 12-1036 passed.

The brief co-signed by the CFOIC was filed by Coalition President Steve Zansberg, an attorney who represents the press association, and Ethics Watch Director Luis Toro. It argues that successful CORA requesters are entitled to recover reasonable attorneys’ fees even when a records custodian “wins the race to the courthouse.”

Anyone filing an open-records lawsuit in Colorado must give three days’ notice in order to protect his or her right to be awarded attorneys’ fees. Records custodians sometimes deny requests and then file their own court petitions within that three-day period in an effort to avoid having to pay attorneys’ fees.

The legislature amended CORA in 2001 to allow the recovery of attorneys’ fees to encourage citizens to exercise their rights to judicial review. Those rights will be “eviscerated,” the amicus brief argues, “if citizens cannot be assured they will be entitled to recover their attorneys’ fees and costs after they provide notice of their intent to file suit to challenge a denial, and thereafter litigate a case (regardless of which party files first).”

Following Reno’s filing of a reply brief, expected in early 2015, the Supreme Court is expected to set the matter for oral argument and later will issue a written decision.

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