Colorado health care exchange sued for denying Independence Institute’s requests for emails

By Jeffrey A. Roberts
CFOIC Executive Director

A lawsuit filed by the Independence Institute on Monday alleges that Colorado’s health care exchange improperly withheld employees’ emails requested under the Colorado Open Records Act (CORA).

Connect for Health Colorado refused to turn over any emails to the Denver-based free-market think tank earlier this year, claiming its requests for information were unreasonable, overly broad “fishing expeditions.”

“These excuses have no basis in law,” argues the Independence Institute’s complaint, which was filed in Denver District Court.

Todd Shepherd, an Independence Institute reporter and editor of The Complete Colorado, first asked in January for emails of three Connect for Health Colorado employees spanning a two-day period. When the health exchange’s chief marketing officer responded that his CORA request was “potentially substantial and administratively burdensome” because each email had to be reviewed for privileged information, Shepherd narrowed the scope to a one-day period.

After a second denial, Shepherd asked for the emails of two employees for a specific five-hour period on a particular day. The third request also was denied. Alan Schmitz, general counsel for Connect for Health Colorado, responded that “It is not reasonable to review ‘all emails’ on all topics for even one individual.”


Todd Shepherd

“The public policy behind CORA is not to promote fishing expeditions,” Schmitz wrote, adding that “this is exactly why” the open-records statute allows records custodians to “make rules as are reasonably necessary to prevent unnecessary interference” with the discharge of their duties.

The Independence Institute contends that Connect for Health Colorado “failed to undertake a legitimate, thorough and reasonable search for documents” responsive to Shepherd’s requests.

The health care exchange, the lawsuit says, should be ordered by the court “to show cause” why access to the emails should be withheld from the Independence Institute. The suit also asks the court to allow inspection of the documents and to award the think tank court costs and reasonable attorneys’ fees.

Luke Clarke, director of communications for Connect for Health Colorado, said the agency would not comment on “pending litigation.”

Shepherd last year asked for a court order to compel the state Division of Insurance to justify its refusal to release emails pertaining to the renewal of health insurance policies not in compliance with the Affordable Care Act. That case is still pending.

In the legal action filed Monday, the Independence Institute is represented by attorneys Geoffrey Blue and Scott Gessler, the former Colorado secretary of state.

Note: The Independence Institute is a member organization of the Colorado Freedom of Information Coalition.

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