By Jeffrey A. Roberts
CFOIC Executive Director
A judge has ruled that Colorado’s Peace Officer Standards and Training (POST) board is a criminal justice agency, possibly hampering legal efforts by two news organizations to obtain the state’s database of certified law enforcement officers.
The decision by Judge J. Eric Elliff, at the conclusion of a hearing in Denver District Court on Tuesday, means that a lawsuit filed in May by The Gazette, reporter Chris Osher and the Chicago-based Invisible Institute will likely hinge on whether the Colorado Attorney General’s office abused its discretion under the Colorado Criminal Justice Records Act (CCJRA) by withholding the database from the journalists.
If the judge had instead determined POST is subject to the Colorado Open Records Act (CORA), disclosure of the database would have been governed by a 2017 CORA amendment that entitles requesters to copies of public records kept in “sortable” and “searchable” formats. Government entities under that provision can withhold certain fields of confidential information but not an entire database.
Ruling from the bench, Elliff said he based his decision on CCJRA’s definition of a criminal justice agency, which includes a government entity “that performs any activity directly relating to the detection or investigation of crime … or the collection, storage, or dissemination of arrest and criminal records information.”
“Based on a reading of the statute and in light of the testimony I heard here today, I conclude that the CCJRA applies,” the judge said.
Rachael Johnson, a Colorado-based attorney for the Reporters Committee for Freedom of the Press, argued at the hearing and in court documents that POST does not engage in any activity related to the detection or investigation of crime. Rather, she noted, its self-described mission is to establish and maintain standards for the training and certification of peace officers. In that respect, Johnson contended, POST is not unlike the state’s dental and medical boards, which set rules for those professions and ensure that licensed dentists and physicians comply with those standards.
As part of their effort to show that POST is subject to CORA, Johnson and Reporters Committee attorney Lin Weeks, both of whom represent the news organizations, cited POST board meeting minutes from 2015 which state that “a CORA request was granted in 2004 seeking the entire database of law enforcement officers maintained by Colorado POST.” The minutes, which also refer to 2015 records requests made by Osher when he was a Denver Post reporter, note that “Several CORA requests have been granted since the first inquiry.”
Assistant Attorneys General Laurie Jaeckel and Stefanie Mann contended that POST meets the definition of a criminal justice agency because it is housed within the state Department of Law’s Criminal Justice Division, which is responsible for POST’s records and functions. POST Director Erik Bourgerie testified that POST sometimes investigates whether someone applying for peace officer certification misrepresented their previous employment or submitted a falsified document.
“They do their own investigation using the very same techniques that were used when Mr. Bourgerie was a sheriff’s deputy in Summit County,” Elliff said in his ruling. “And while it doesn’t happen a lot, it happens sometimes. And there’s no mathematical qualifier in (the CCJRA description of a criminal justice agency). It’s any activity.”
The judge also pointed to the inclusion of the state Department of Education in the statutory definition of a criminal justice agency, saying that means the legislature in drafting the law was concerned about protecting background-check documents — like those collected by POST — from public dissemination “because they can contain sensitive information on individuals.”
Elliff prefaced his verbal order by saying: “There’s very little that I can imagine is more front of mind of the citizens of this state and of the citizens of this country than whether their police officers are qualified and certified to do what they are charged with doing. But that is not what we are here to decide today. What we’re here to decide today is whether we are going to proceed with the CCJRA or CORA.”
Opening briefs in the lawsuit are due to be filed later this month. Without conceding POST’s status under CCJRA, Johnson in the news organizations’ complaint argued that the AG’s office committed an abuse of discretion — if it were subject to the criminal justice records law. She cited a 2005 Colorado Supreme Court ruling, Harris v. Denver Post, which requires criminal justice agencies to balance several factors before concluding that disclosure of records would be “contrary to the public interest.” The factors include an agency’s interest in pursuing ongoing investigations, the privacy interests of individuals and the public purpose to be served in allowing inspection.
“Because Defendant failed to balance the public and private interests involved before denying Plaintiffs’ requests for access to the POST Database, Defendant’s denial of Plaintiff’s right to inspect the record constituted an abuse of discretion,” the complaint says.
The database sought by the Gazette and the Invisible Institute is different from a public database POST is required to create by Jan. 1, 2022, subject to available appropriations, under Senate Bill 21-174. That database, to be published in a searchable format on POST’s website, is to include information on de-certifications of peace officers by the POST board, officers who are terminated for cause and officers who are subject to credibility disclosure notifications, also called Brady lists.
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