By Jeffrey A. Roberts
CFOIC Executive Director

The Aurora Sentinel is a “citizen” entitled to recover attorney fees and court costs for prevailing in an open meetings lawsuit against the Aurora City Council, the Colorado Supreme Court ruled Tuesday.

The justices, however, did not directly address whether the newspaper should get the full audio recording of a March 2022 executive session in which councilmembers ended censure proceedings against Councilmember Danielle Jurinsky for comments she made on a radio talk show about Aurora’s then-police chief and deputy chief.

Although the Court of Appeals found in 2023 that the council violated the Colorado Open Meetings Law (COML) by inadequately announcing the executive session and by holding a roll call vote to stop the censure investigation, the Supreme Court decided it did not waive the attorney-client privilege covering the closed-door meeting. A special counsel’s letter about the executive session, released to the public in a council meeting agenda packet, discussed “factual assertions” about the Jurinsky matter, “not privileged communications,” the high court concluded.

The justices remanded the case back to the lower courts “for proceedings consistent with” its opinion, which noted the city council’s violations for failing to identify the topic of the executive session in “as much detail as possible” and for taking “formal action” in a meeting that was not open to the public.

“We look forward to being able to report to the public what compelled city council members to quash a public censure proceeding against a fellow council member, in a closed meeting with the target of the proceedings and her attorneys in the room at the time,” Sentinel Editor Dave Perry said in a statement provided to the Colorado Freedom of Information Coalition. “Without the power of open meeting laws, and courts that uphold them, the press, and the public it reports for, are unable to provide critical transparency and details.”

CFOIC had asked the Supreme Court in an amicus brief to affirm that when a public body fails to properly announce the “particular matter” to be discussed in an executive session, the recording of that closed-door meeting becomes a public record. But the justices declined to do so.

The Court of Appeals has held three times — in 1998, 2004 and 2020 — that improperly convened executive sessions are meetings open to the public, “and therefore the public may access the recording of it,” CFOIC’s brief noted. A ruling by the Supreme Court “affirming the sound body of Court of Appeals precedent on this issue is what is needed to quell any lingering doubt there could be on the matter and spur public bodies to pay attention to and comply with the law,” our brief argued.

In deciding that the Sentinel is entitled to attorney fees and court costs for successfully challenging the open meetings law violations, the Supreme Court held that the words “citizen” and “person” in C.R.S. § 24-6-402(9) are used interchangeably “and that each word logically encompasses any party with standing to pursue litigation under the statute.”

“[A]ny other conclusion would exclude certain members of the public — media corporations like The Sentinel — from the ability to protect public interests in open meetings and collect attorney fees for successful litigation. This is illogical and even absurd,” wrote Justice Melissa Hart for the court’s majority.

She also noted that the COML is part of the Sunshine Act of 1972, which includes a definition of “person” in the section about lobbyist regulations. A “person” under that definition can be “an individual, limited liability company, partnership, committee, association, corporation, or any other organization or group of persons.”

Chief Justice Monica Márquez dissented, stating that “I cannot agree with the majority that the General Assembly intended for corporations to be able to obtain fee awards under the COML.” The Sentinel “lacks standing to sue under section 24-6-402(9)(a),” she added in a footnote, “because the plain and ordinary meaning of ‘person’ excludes corporations.”

“Although granting corporations the right to sue and obtain fee awards under the COML may be a reasonable policy, that is a choice for the legislature, not this court,” Márquez wrote. “As currently drafted, section 24-6-402(9) uses the terms ‘person’ and ‘citizen’ — neither of which is expressly defined (or otherwise commonly understood) to include corporations. We must assume the General Assembly’s choice was intentional.”

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