By Jeffrey A. Roberts
CFOIC Executive Director

Records custodians would have the power to deem someone a “vexatious requester” and bar that person from obtaining public records for 30 working days under a bill introduced Wednesday in the Colorado House that also lets government entities take longer to fill most requests made under the Colorado Open Records Act.

House Bill 24-1296, sponsored by Reps. Cathy Kipp, D-Fort Collins, and Matt Soper, R-Delta, additionally establishes a broad new CORA exemption that allows the withholding of “any record containing information that, if disclosed, would invade another individual’s personal privacy.”

And it makes a government employee’s calendar “that is kept and maintained primarily pursuant to the employee’s employment” off limits to public inspection, except for the calendars of elected officials or “employees in leadership positions.” Such records, however, would be available to journalists.

Kipp told a meeting of stakeholders the bill is aimed at reining in the “abuse of CORA” experienced by governmental agencies “already stretched pretty thin.” She said it’s not her intention to “reduce governmental transparency.”

But the proposed new restrictions come at a time when cost is already a barrier to obtaining public records in Colorado for many requesters and soon will be an even bigger obstacle. Because of an inflation factor built into CORA since 2014, state and local government entities starting July 1 will be allowed to charge an hourly rate to process requests that likely exceeds $40 after providing the first hour at no charge, up from the current maximum rate of $33.58.

The Colorado Freedom of Information Coalition often hears from requesters who experience delays in getting records beyond CORA’s presumed response deadline of three working days and even the extra seven working days allowed if “extenuating circumstances” exist. Requesters generally do not challenge such delays in court because of the time it takes to resolve civil actions.

“It is sad that at a time when we are being bombarded with misinformation and disinformation, lawmakers are seeking to curtail the public’s right to receive accurate information, through public records, on a timely basis and without having to borrow funds to obtain them,” said CFOIC president Steve Zansberg. “Such steps backward should be vigorously opposed by all who believe in transparency and accountability.”

HB 24-1296 keeps CORA’s three-working-day deadline in the statute (for records “not readily available at the time” of a request) but lets records custodians first take up to two working days to evaluate “whether any costs or fees” apply to a records request and if extenuating circumstances exist.

If there are no fees, the three-working-day clock would start after the custodian’s initial analysis of the request. If there are fees, no additional action would be taken on a request “until the requester, in writing, either acknowledges acceptance of the costs and fees or revises the request.” Once the requester accepts the fees, the three-working-day response period begins.

The bill also:

• Establishes a new “extenuating circumstance,” extending the response period an extra seven working days, for when “the custodian, or a person who is essential to the process of responding to requests, is not scheduled to work within the three-day period.”
• Allows a records custodian to treat multiple CORA requests made by the same person within 14 days as one request — ensuring the requester gets only one free hour before “research and retrieval” charges kick in.
• Lets a records custodian take 30 working days to provide records to someone who plans to use the documents “for the direct solicitation of business or pecuniary gain” and recover “the full cost of associated with responding” to such a request. A requester could appeal the custodian’s determination in district court.

Depending on how it’s interpreted, the blanket “privacy” exemption in the Kipp and Soper bill could overturn decades of judicial precedent in Colorado regarding the availability of public employees’ personnel files, including disciplinary records that could show misconduct. Until now, the courts have applied a standard to determine whether disclosure of CORA records would invade a public employee’s privacy: 1) whether the person has a legitimate expectation of nondisclosure; 2) whether disclosure nonetheless is required to serve a compelling public interest; and (3) if so, how disclosure can happen in a manner that is least intrusive to the person’s privacy.

The Court of Appeals has narrowly construed the mandatory “personnel files” exemption in CORA to mean “home addresses, telephone numbers, (personal) financial information,” and other similar “personal, demographic information” maintained because of the employer-employee relationship. Other records about a public employee’s job performance are presumed to be open.

The “vexatious” tag in HB 24-1296 could not be applied to members of the news media, as defined in Colorado’s reporter’s shield law. But it could be applied by a records custodian to anyone else who asks for public records under CORA and “demonstrates an intent to annoy or harass a custodian” or another employee of the government entity, “a person who depends on services from that entity” or “another entity which may or may not be an entity listed” in the proposed new CORA provision.

The bill says a person can’t be labeled vexatious “solely due to the number of requests the person has filed or the number of public records sought.” But it would be up to the records custodian to decide who can’t get records for 30 working days because of factors that may include: 1) the number of requests filed; 2) the total number of pending requests; 3) the scope of the requests; 4) “the nature, content, language, or subject matter of the requests”; 5) “the nature, content, language, or subject matter of other oral and written communications to the custodian”; 6) “conduct that the custodian determines is placing an unreasonable burden on the custodian”; 7) “conduct that the custodian determines is intended to harass”; and 8) “any other relevant information.”

A requester who is deemed vexatious would be entitled to a sworn statement detailing their conduct within the initial two-working-day period. That person could appeal the designation in district court.

Kipp told stakeholders the prohibition against the disclosure of employee calendars in HB 24-1296 is aimed at preventing stalking of government employees (even though CORA already allows the redaction of personal information from an employee’s calendar about public business). Calendars would be available to a “newsperson,” as defined in the shield law.

The bill also prohibits the disclosure of “any other contact information” of public elementary or secondary school students besides their address and phone information, which already cannot be released to the public.

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