By Jeffrey A. Roberts
CFOIC Executive Director
The Colorado Supreme Court will review whether appellate judges wrongly decided the Peace Officer Standards and Training Board (POST) is a criminal justice agency in a 2023 ruling that kept the state’s database of law enforcement officers confidential.
In granting certiorari Monday to The Gazette newspaper and the Chicago-based Invisible Institute, the justices indicated they will look at whether CORA, rather than the Colorado Criminal Justice Records Act (CCJRA), governs public disclosure of the database.
That legal distinction matters because CCJRA gives criminal justice agencies broad discretion to deny requests for many records after conducting a balancing-of-interests test. CORA, on the other hand, requires the disclosure of public records kept in “sortable” and “searchable” formats minus any fields of information that must not be released under exceptions in the law or elsewhere in state statutes. Those exceptions to CORA’s disclosure mandate must be narrowly construed, Colorado’s high courts have ruled.
“On behalf of all Coloradans, I am grateful that the Supreme Court has agreed to hear this case and I am confident that upon considering its merits it will reverse the Court of Appeals’ decision,” said First Amendment attorney Steve Zansberg, president of the Colorado Freedom of Information Coalition, in an emailed statement. He noted that the Court of Appeals based its opinion on POST’s statutory duty to revoke a peace officer’s certification, which requires it to collect and store arrest and criminal records.
“That effectively removes from the ambit of the open records act every state and local government office that has in its possession any criminal background checks,” Zansberg wrote. “That would eliminate the public’s right to inspect public records from every school district and licensing agency in the state. Courts are required to reject such an ‘absurd’ reading of the statute.”
As a certification and licensing office, he added, “POST is no more a ‘criminal justice agency’ — actually engaged in investigating and prosecuting crimes — than is the Division of Motor Vehicles that issues drivers’ licenses to peace officers so they can operate their patrol vehicles.”
Rachael Johnson, a Colorado-based attorney with the Reporters Committee for Freedom of the Press, represents The Gazette, Gazette reporter Chris Osher and the Invisible Institute in the litigation.
“We’re pleased with the Colorado Supreme Court’s decision to grant our clients’ petition to hear this case, which could have far-reaching implications for the public’s ability to access government records,” she wrote in an email to CFOIC. “This is a step in the right direction for transparency across the state of Colorado.”
The news organization’s certiorari petition argued that the Court of Appeals ruling “creates a gaping hole” in CORA and broadens the scope of CCJRA “beyond recognition.” And if allowed to stand, it “will jeopardize the public’s long-standing ability to access the records of numerous state agencies that necessarily obtain criminal records for professional licensing purposes — agencies that do not resemble those that would be included in any commonsense definition of ‘criminal justice agency.”
The office of Attorney General Phil Weiser, where POST is housed, had asked the Supreme Court to deny the certiorari petition.
In a brief, Assistant Solicitor General Brittany Zehner wrote that POST “is not a standard licensing agency” and “[u]nlike the directors of other state licensing agencies, the POST Director and POST investigator are designated by statute as peace officers.”
“The POST Director also testified that he had conducted criminal investigations in the course of his POST duties,” the brief says. “For example, POST investigated a peace officer for providing false information to obtain certification, including misrepresenting his past certifications in other states, misrepresenting his employment history, and altering information on an official report.”
Zehner wrote that CCJRA’s inclusion of school districts, higher education governing boards and the state Department of Education in the definition of criminal justice agencies “undercuts” arguments that the Court of Appeals ruling “improperly expanded the scope of the statute and, in doing so, opened the floodgates for other agencies to claim their records are not subject to CORA.” The definition, she added, is “intended to focus on the actual activities the agency engages in and the records they collect, store, and disseminate.”
Follow the Colorado Freedom of Information Coalition on Twitter @CoFOIC. Like CFOIC’s Facebook page. Do you appreciate the information and resources provided by CFOIC? Please consider making a tax-deductible donation.
