Colorado Supreme Court affirms attorneys’ fees for winners of open-records lawsuits

By Jeffrey A. Roberts
CFOIC Executive Director

The Colorado Supreme Court on Monday upheld the right of those who win open-records lawsuits to be reimbursed for court costs and attorneys’ fees, even if they gain access to only some of the records they claimed were improperly withheld.

The 5-2 ruling in Colorado Republican Party v. Benefield affirmed a 2011 Colorado Court of Appeals decision in favor of the state GOP. A district court had denied the party’s request for attorneys’ fees as a partial victor in a Colorado Open Records Act (CORA) lawsuit involving a survey sent to constituents by several Democratic state representatives.

“The court correctly construed CORA as mandating that any person who prevails in obtaining access to any public records that were not properly withheld is entitled to recover his or her attorney’s fees,” said First Amendment attorney Steve Zansberg, president of the Colorado Freedom of Information Coalition.

“It is a victory for the public’s right of access because it means citizens need not risk their personal fortunes to exercise their right to inspect the public’s records.”

The case goes back to 2006, when the Colorado GOP asked then-Rep. Debbie Benefield, D-Arvada, and other current and former Democratic state representatives for the results of a constituent survey. The Republicans eventually obtained nearly 60 percent of 1,584 survey responses, but a Denver District Court judge ruled that the remainder were not subject to release under CORA.

Because the GOP did not win the case in its entirety, the district court judge also denied the Republican Party’s motion to be paid, as CORA permits, costs and attorneys’ fees as the “prevailing applicant.”

The Supreme Court, however, ruled that CORA, when properly construed, mandates the awarding of costs and reasonable attorneys’ fees to “any person who applies for and receives an order from the district court requiring a (records) custodian to permit inspection of a public record, as provided by the statute.”

The justices left it up to the district court to determine how much the Colorado GOP should be paid.

“This is a win for the people, pure and simple,” said Jerry Raehal, CEO of the Colorado Press Association. “Citizens should not have to pay legal costs for records that rightly belong to them. The alternative was for citizens to pay their own legal fees to access records that belong to them while their taxpayer dollars were being used to stop them. This ruling rights that wrong.”

Supreme Court Chief Justice Nancy Rice and Justice Gregory Hobbs dissented, arguing that the court’s decision puts governments in Colorado in an “untenable” position.

“The majority’s holding forces the government to litigate over court costs and attorney fees any time it improperly denies access to a single record, regardless of how many records were requested and properly denied,” Rice wrote. “Thus, under the majority’s analysis, an applicant who is denied one document out of thousands is automatically entitled to court costs and reasonable attorney fees.”

That, she added, “is antithetical to the legislature’s clear intent to protect the government while also ensuring access to public records.”

In January, the Colorado Court of Appeals issued a ruling similar to the Supreme Court’s decision in the case of citizen elections monitor Marilyn Marks, who won the right to inspect one voted ballot from the 2010 general election in Chaffee County.

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