Update: Gov. Jared Polis signed HB 24-1090 into law on Tuesday, Feb. 20.
By Jeffrey A. Roberts
CFOIC Executive Director
State lawmakers want to adjust a 2023 juvenile privacy law that recently forced Colorado’s judicial branch to restrict attorneys’ access to criminal court records, also creating delays in processing document requests from journalists and the public.
The new statute requires courts and agencies to redact the names and any other identifying information of child victims and witnesses from criminal justice records before releasing them to the public. A bill introduced Thursday would make the provision apply only to records of offenses committed on or after Jan. 1, 2024.
House Bill 24-1090 also would ensure that unredacted records are available to the Office of the State Public Defender and the Office of the Alternate Defense Counsel, and it allows the release of unredacted records to a named sexual assault victim or the victim’s designee.
Criminal defense attorneys in particular have been alarmed by the new Colorado Judicial Department policy, in effect since the start of the year, because it restricts access to felony, misdemeanor and DUI traffic files only to the attorneys of record in those cases. Those not representing parties are now required to submit requests to a court clerk, who reviews and redacts, if necessary, the requested documents before releasing a “public copy.”
In December, Boulder lawyer Janene McCabe called the change “a massive sledgehammer approach” that impedes the ability of defense attorneys to adequately represent their clients. McCabe, who is president of the Colorado Criminal Defense Bar, told the Colorado Freedom of Information Coalition defense attorneys rely on quick and easy access to criminal records for multiple reasons such as reviewing their clients’ past cases and the cases of any co-defendants.
She predicted the new policy would “flood” the judicial system with records requests, also lengthening delays in processing requests for the news media and public.
The bill, introduced by Democratic Reps. Brianna Titone of Arvada and Naquetta Ricks of Aurora, will fix the records access problems for attorneys if the judicial department switches the coding in the electronic records filing system back to the way it was before Jan. 1, Denver defense attorney Tristan Gorman wrote in an email to CFOIC.
“Because it makes the changes to statute from SB 23-075 explicitly prospective rather than retroactive as to the records, there should be no reason to deny attorneys access to pleadings on (the e-filing system), except in the tiny percentage of cases that actually have a juvenile victim and/or witness for cases with a (date of offense) of 1/1/24 or later,” Gorman wrote.
It remains to be seen whether the bill, if enacted by the legislature, will shorten delays in processing requests for criminal court records made by the news media and public. Under the new judicial department policy, reporters must request most criminal filings from court clerks around the state rather than quickly getting them from the judicial branch’s public information officers.
So far, the policy “has been disastrous for media access to court records,” according to Shelly Bradbury, criminal justice reporter for The Denver Post.
Records that the judicial department previously provided for free, often within minutes or hours of a request, now take days and cost money, she wrote in an email to CFOIC. “Some courthouses require us to send a self-addressed stamped envelope and checks by mail in order to get routine court orders in criminal cases. It’s particularly problematic when there is a late order in a case before a hearing.”
If an order is filed in a case the day before a hearing, “I now do not have a reliable way to get that order and read it before the hearing. So I’m going into hearings unprepared,” she added.
“In theory, it should be reasonable for reporters to access court records through the various clerk’s offices,” Bradbury wrote. “But it’s quickly become clear that many courts are not equipped to quickly or efficiently provide records to the media. Courts are taking days or weeks to provide routine records, and some require that both the payment and records be snail-mailed. In many cases, reporters are unable to access court records in a timely manner.”
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