By Jeffrey A. Roberts
CFOIC Executive Director

The Colorado Court of Appeals heard oral arguments Wednesday about whether a Denver activist has legal standing to sue a state agency that wanted to charge him $600 for public records — an amount he refused to pay.

In court filings, Frank Sturgell stated he was “homeless and penniless” in 2020 when he made a Colorado Open Records Act request for copies of ketamine waivers from the Colorado Department of Public Health and Environment and couldn’t afford the department’s estimated fee to pull 50 two-page records. He considered the fee “not reasonable” and a denial of the records, “a blocking attempt regularly used by government agencies to avoid disclosure of public documents.”

But Denver District Court Judge Kandace Gerdes dismissed his CORA lawsuit last June without holding a hearing, ruling that Sturgell did not have standing to bring his claims because he hadn’t “alleged personal injury.”

Sturgell’s attorney, Anita Springsteen, contended Wednesday the law required Gerdes to hold a hearing.

“That’s what the district court skated right past in this case,” she told a panel of three appellate judges. “We were never given the opportunity to make any argument about the reasonableness of the fee or the sort of process that Mr. Sturgell had gone through or the many, many requests he had made or the fact that he was entitled under the statute to an hour’s worth of time” at no charge.

According to court filings, Sturgell started asking for ketamine waivers issued by CDPHE’s Emergency Medical Practice Advisory Council because of the 2019 death of Elijah McClain in Aurora police custody following an injection of the anesthetic by paramedics. (McClain’s death eventually led to a 2021 state law that limits first responders’ use of ketamine to sedate people.)

“At a minimum,” a brief filed by Springsteen says, “Mr. Sturgell and his team needed to see 49 documents, which were simply the two-page ketamine waivers presented by CDPHE and approved by EMPAC that allowed paramedics to bypass federal laws that normally limited use of a Schedule III Controlled Substance like ketamine to use by medical doctors.”

The health department “should have been able to provide the ketamine waivers with the click of a button,” within the free first hour of research and retrieval required by CORA, the brief alleges. Instead, the agency told Sturgell that producing the records would take 20 hours, billed at $30 an hour, but “gave no explanation of why it would take 20 hours of time to provide a 2-page document that was used by fire agencies across the state on a daily basis.”

Assistant Attorney General Haar Katta, representing CDPHE, defended the judge’s dismissal of Sturgell’s lawsuit.

“There was no denial,” he told the Court of Appeals judges during oral arguments. “After the initial request, the department responded by noting the $600 fee that is permissible under CORA. And then, rather than paying the fee, Sturgell abandoned the request. He walked away from it.”

Because the department never denied his request to inspect the records, “Sturgell did not suffer an injury-in-fact regarding his CORA claims,” and therefore lacked standing to sue under the law, a brief filed by Katta says.

The Court of Appeals judges asked Katta how they are supposed to determine Sturgell’s legal standing without findings of fact from the district court judge.

“It seems that there is a threshold issue regarding standing that we can’t address, which is whether the fee was reasonable,” said Judge Lino Lipinsky de Orlov before offering a hypothetical scenario. “Let’s say the department says, you want two documents, it’s $10 million, and the requester doesn’t pay it. Is that a denial?”

Katta acknowledged a $10 million fee would “seem unreasonable,” but said Sturgell didn’t properly plead his case in district court and failed to give the health department 14 days’ notice before filing suit, as CORA requires.

Sturgell’s court filings dispute that claim.

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