By Jeffrey A. Roberts
CFOIC Executive Director
A Larimer County District Court judge will decide whether the Colorado Open Records Act requires a public hospital district to redact privileged information from attorney billing invoices and release the public portions to the Estes Valley Voice news site.
In a court brief submitted earlier this month, Estes Park Health argues that “redaction is a permissible but optional approach,” defending its decision to withhold the entirety of the statements from Voice editor Patti Brown. “There is no authority supporting a general obligation to redact under CORA.”
But that interpretation is incorrect, says a brief filed for Brown and The Voice by attorneys Michael Beylkin and Steve Zansberg. “Colorado’s appellate courts have held that CORA does not authorize an ‘all or nothing’ approach to disclosure, which makes EPH’s blanket denial … improper,” they wrote.
Under the hospital district’s reading of the law, governments in Colorado could “avoid disclosure of the overwhelming majority of public records if they contain isolated pieces of information that might be excepted from disclosure by specific provisions of law,” Beylkin and Zansberg argued. “Such a result would turn the clear language of CORA — which creates a strong presumption in favor of disclosure of public records — on its head.”
A records custodian “would be permitted to withhold a lengthy, multiple hundred-page document because it contains a social security number on a single page,” they added. “Not only would such an interpretation conflict with the plain and unambiguous statutory text, it would also contravene the entire purpose of CORA.”
The Voice’s request for attorney billing invoices stems from its interest in learning how much Estes Park Health paid the Hall Render law firm to fight the news organization’s attempt to obtain a letter of intent to join the UCHealth medical system. Estes Park Health finally released the letter before a May 8 board meeting to approve the agreement.
After the hospital district denied The Voice’s Sept. 25 request for all Hall Render invoices since Oct. 1, 2024, it filed an application in district court, using a CORA provision that allows a records custodian to seek an order restricting disclosure of public records or a judicial clarification of the law if they cannot, in good faith, determine if disclosure of certain records is prohibited.
Brown and The Voice countersued, arguing that Estes Park Health improperly “raced to the courthouse” and made no argument, as the statute requires, that it is “unable, in good faith, after exercising reasonable diligence, and after reasonable inquiry, to determine if disclosure of the public record is prohibited.” It also didn’t claim that the disclosure of otherwise public records “would do substantial injury to the public interest,” the news organization’s brief says.
Mark Sabey, attorney for Estes Park Heath records custodian Rachel Ryan, contended in a hearing brief that “CORA completely exempts records that include privileged information, and that exemption has no exceptions.”
“Virtually all privileged records could in theory be produced after redaction, but CORA instead simply requires the custodian to ‘deny the right of inspection’ for records containing privileged information,” he wrote, adding that a duty to redact would require Estes Park Health “to incur the significant expense of legal advice in order to determine which aspects the many entries on each of the 323 pages are privileged and which are not.”
Sabey’s brief argues that no Colorado case law support’s The Voice’s assertion that “CORA imposes any duty of redaction on a custodian of records” and that it “would have been a simple matter for the legislature to clearly state a general or specific duty of redaction if such had been intended.”
Beylkin and Zansberg (who is president of the Colorado Freedom of Information Coalition) note in their brief that CORA requires records custodians to disclose public records — “or any portion thereof” — unless an exception applies. “That is the plain language of the CORA, and it is also the only permissible interpretation, particularly in light of the settled law that courts are required to construe CORA’s provisions expansively in favor of public access, and to construe all statutory exemptions narrowly.”
They cited a 2005 Colorado Supreme Court order to redact portions of emails between public employees “that do not address the performance of public functions” and disclose the remainder. And in 2008, the Supreme Court held in a Colorado Criminal Justice Records Act case that [r]edaction, as an alternative, may often be a proper choice to carry out the General Assembly’s intent … A custodian should redact sparingly to promote the CCJRA’s preference for public disclosure.”
In Ritter v. Jones, Beylkin and Zansberg added, the Colorado Court of Appeals held that “where a single document contains both public and confidential information, it is appropriate to redact the confidential information prior to public inspection.”
Following a hearing Monday on the Estes Park Health case, Judge Gregory Lammons said he would take the matter under advisement and issue a written ruling.
Follow the Colorado Freedom of Information Coalition on X and Bluesky. Like CFOIC’s Facebook page. Do you appreciate the information and resources provided by CFOIC? Please consider making a tax-deductible donation.
