By Jeffrey A. Roberts
CFOIC Executive Director

People who sue state and local government entities are still entitled to get public records from those entities by using the Colorado Open Records Act, a majority of the Colorado Supreme Court ruled Monday.

“We hold that a litigant may obtain records under CORA even if those records are relevant to pending litigation and the litigant has propounded no document requests under the Rules of Civil Procedure,” Justice William Hood wrote for the court, affirming a Court of Appeals opinion.

The underlying case concerns the recording of a 2020 Archuleta County Commission meeting requested by Pagosa Springs attorney Matt Roane, who had sued the board for allegedly violating the Colorado Open Meetings Law.

The county clerk contended that a litigant against the county must use the discovery process, rather than CORA, to obtain county records. But “none of the relevant rules prohibits a CORA request during litigation. And we are not at liberty to fashion such a rule here,” Hood wrote.

Two of the seven members of Colorado’s highest court, Chief Justice Monica Márquez and Justice Carlos Samour, expressed “grave concern” with the majority opinion. Roane was entitled to obtain the recording, they agreed, “but only because it amounted to a proper discovery request under the rules of civil procedure promulgated by this court — not because it was a proper request under the Colorado Open Records Act.”

The majority decision “needlessly undermines Colorado’s constitutional separation of powers and distorts the litigation process for public entities across the state,” Márquez wrote.

Article VI, section 21, of the state’s Constitution, her concurring opinion says, “specifically vests” the Supreme Court with rulemaking power, including the power to adopt rules of procedure for the courts. The rules of civil procedure govern the timing and inspection of documents in civil cases, and “[n]othing in CORA overrides this fundamental principle.”    

“To be clear: Outside the context of litigation, CORA governs records requests made of public entities,” Márquez added. “Individuals and organizations may — and routinely do — submit any number of CORA requests to public entities to gather records, often to prepare for litigation. But once litigation commences and the court’s jurisdiction has been invoked, the rules of civil procedure govern the discovery pertaining to that litigation,”

The Supreme Court previously addressed the public records/litigation discovery issue in a 1980 ruling, Martinelli v. District Court. Márquez argued that “both CORA and our decision in Martinelli expressly recognize the primacy of this court’s procedural rules in the context of litigation.”

But the majority ruling says Martinelli “simply stands for the proposition that CORA does not bar production of documents otherwise producible in civil litigation.” Roane “didn’t give up his right to inspect public documents in the (county commission’s) possession just because he sued the Board,” it adds.

In an amicus brief filed with the Supreme Court last January, the American Civil Liberties Union of Colorado and the Colorado Freedom of Information Coalition supported a litigant’s right to use CORA.

“The fundamental question before the Court is whether a member of the public loses access to public records under CORA when she sues the government. Under the plain terms of CORA, the answer must be no,” the ACLU/CFOIC brief says. “If the legislature intended for CORA requests to be limited by civil discovery rules, it could have so limited them; but it did not.”

CORA, we also noted, “expressly contemplates the availability of CORA requests as an alternative to discovery in pending litigation — its only restriction is to withhold fees and costs from a litigant who succeeds in CORA litigation over records it could have received through civil discovery instead.”

That CORA provision “envisions a scenario in which a litigant against a public entity also successfully seeks related and discoverable records under CORA from the same public entity,” Hood also noted.

Márquez warned that the majority ruling is “far-reaching” and “effectively nullifies our discovery rules in civil litigation involving public entities subject to CORA.”

“What is particularly unsettling about today’s ruling is that it results in an uneven playing field in litigation for state agencies and local government entities subject to CORA,” she wrote. “Those entities must abide by discovery limits and deadlines, but after today’s ruling, their private opponents need not do the same. Indeed, a private litigant could submit a flurry of CORA requests simply to overwhelm an opposing public entity during litigation, including on the eve of trial. The potential impact on public entities cannot be overstated.”

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