By Jeffrey A. Roberts
CFOIC Executive Director

The Colorado Court of Appeals will decide whether a judge properly ordered the state public defender to pay prison inmate Eric St. George $13,650 for its “arbitrary and capricious” denial of his request for a policy document.

In a recent brief, the Office of the State Public Defender (OSPD) argues that its records custodian never received a request for the policy from St. George and that Jefferson County District Court Judge Todd Vriesman wrongly assessed penalties against the agency under the Colorado Criminal Justice Records Act (CCJRA).

But lawyers for St. George, in an answer brief filed earlier this month, say he sent three separate letters to the records custodian at the public defender’s Golden office, asking for OSPD’s official policy regarding whether discovery files can be kept from clients held in pre-trial detention. They also contradict the agency’s contention that it is not a criminal justice agency subject to CCJRA.

“This case centers on Plaintiff’s access to a criminal justice record personally relevant to him, as it involved his right to access the discovery that was to be used for or against him at trial in his criminal case,” St. George’s brief argues. “It is directly aimed at the client’s participation in his own defense, and limits that right according to his attorney’s discretion. Thus, under the plain language of the statute, the information sought directly relates to the functions of OSPD required or authorized by law. The policy sought is therefore a ‘criminal justice record.’”

It matters whether the policy document sought by St. George is covered by CCJRA or the judicial branch’s records rules — as the public defender’s office contends — because only CCJRA allows the imposition of a $25-a-day penalty against a records custodian when a judge finds that a denial was “arbitrary and capricious.” In his Jan. 13 ruling awarding $13,650 to St. George, Vriesman calculated that 546 days elapsed from St. George’s first request for the record until the agency finally provided him with language from the policy the day after a hearing on the lawsuit.

The judge found that the public defender’s office abused its discretion under CCJRA by withholding the policy and that the agency’s “employees and lawyer ignored or refused process of service and ignored subsequent court orders.” Vriesman also wrote, “[A]t no time during this proceeding was there any evidence presented, in affidavit form or at a hearing, to substantiate the contention that (OSPD) did not know of Plaintiff’s record requests by letter or by proceedings in this lawsuit.”

OSPD’s brief, submitted by Senior Assistant Attorney General Scott Schultz, says “the record is devoid of any evidence” that the agency received requests from St. George for the policy document. “Even if there was evidence that all three of Appellee’s requests existed, were sent, and received by OSPD, the OSPD never denied Appellee inspection or access of the alleged record request, a requirement for any assessment of penalties under the CCJRA.”

Vriesman’s conclusion that the public defender is subject to CCJRA and the Colorado Open Records Act is “legally incorrect and unsupported by law,” Schultz wrote. “Instead, Administrative Records Requests made to OSPD are governed exclusively by P.A.I.R.R.2 (the judicial branch’s records rules), which applies only to agencies within the judicial branch. Importantly, unlike the CCJRA, P.A.I.R.R.2 does not permit the assessment of penalties against the custodian who improperly denies inspection.”

OSPD is not a criminal justice agency, Schultz added, “because the agency and its duties are not identified in the CCJRA.”

But CCJRA’s definition of a criminal justice agency covers any agency of the state that “performs any activity directly relating to the detection or investigation of crime,” St. George’s brief notes.

“The ‘detection or investigation of crime’ need not be a central mission of an agency for it to be covered by CCJRA, as the law also covers, at both the state and local level, any ‘governing board of institutions of higher learning,’ school districts, judicial districts, and special districts,” the brief argues. “It also covers other activities performed by OSPD for their clients including, ‘pre-trial release,’ and post-conviction issues of ‘correctional supervision, rehabilitation, evaluation, or treatment of accused persons or criminal offenders.’”

Because CCJRA also includes agencies tasked with “the collection, storage, or dissemination of arrest and criminal records information,” that function alone “renders OSPD a criminal justice agency,” St. George’s brief adds.

In its appeal, the public defender’s office also says there is “no evidence” that it or the attorney general’s office was formally notified of St. George’s lawsuit. Schultz wrote that Vriesman denied OSPD due process when he “improperly concluded” the agency and the AG were properly served in the district court case.

St. George’s brief says “OSPD, a state agency made up of lawyers and represented by the Attorney General’s office, was abundantly aware of Plaintiff’s multiple letters requesting a policy under the CCJRA.”

St. George, who fired a shotgun at a Lakewood police officer in 2016 and is serving a 32-year sentence at the Fremont Correctional Facility, represented himself in his lawsuit against the public defender’s office. For OSPD’s appeal, he is represented by attorneys Tom Kelley and Madison Lips. Kelley is a former president of the Colorado Freedom of Information Coalition and Lips is a CFOIC board member.

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