By Jeffrey A. Roberts
CFOIC Executive Director

A progressive activist has failed to show that the Colorado Opportunity Caucus is a public entity subject to the Colorado Open Records Act, a judge determined last week, dismissing claims against the nonprofit for withholding documents related to a 2025 retreat at a Vail hotel.

In April, Derrick Blanton sued the caucus and its co-chairs, Sen. Lindsey Daugherty, D-Arvada, and Rep. Sean Camacho, D-Denver, making the argument the caucus “is part of the state government” because it is “a de facto policy making body of the General Assembly.”

But in a ruling Friday, Denver District Court Judge Ericka Englert wrote that CORA “does not on its face apply to private non-profits such as COC. Only if the nine Denver Post factors are met could the Court find COC is essentially a public entity such that its records are public records under CORA.”

Englert was referring to Denver Post v. Stapleton Development Corp., a 2000 Court of Appeals opinion holding that the nonprofit created by the Denver Urban Renewal Authority to develop the former Stapleton Airport land was subject to CORA. That decision cited “a nonexclusive list of nine factors to be considered in determining whether a private entity was subject to the state’s open records act.”

The factors, drawn from a Florida Supreme Court ruling, “examined the level of the public agency’s involvement with the private entity.” They included: (1) the level of public funding; (2) whether there had been a commingling of funds; (3) whether the activity was conducted on publicly owned property; (4) whether services contracted for were an integral part of the public agency’s chosen decision-making process; (5) whether the private entity was performing a governmental function or a function which the public agency otherwise would perform; (6) the extent of the public agency’s involvement with, regulation of, or control over the private entity; (7) whether the private entity was created by the public agency; (8) whether the public agency has a substantial financial interest in the private entity; and (9) for whose benefit the private entity was functioning.

Blanton’s lawsuit “does not allege facts that address the Denver Post factors,” Englert’s decision says. The facts, she wrote, “do not show public funding, commingling of funds, or that the state has a substantial financial interest in” the Colorado Opportunity Caucus, a 501(c)(4) nonprofit.

Separate from Blanton’s civil action, Colorado Common Cause filed ethics complaints against several Democratic lawmakers alleging their attendance at the Vail retreat violated the state’s constitutional ban on elected officials receiving gifts. Blanton cited statements made by Daugherty and Camacho in their defense of the ethics complaints that the Opportunity Caucus “is part of the state government.”

But that assertion, Englert determined, “is insufficient evidence for this Court to find COC is essentially a public entity and thus subject to CORA under the Denver Post analysis.”

Attorneys for the Colorado Opportunity Caucus employed a “special motion to dismiss” available under Colorado’s anti-SLAPP statute. The 2019 law established a process for the expedited dismissal of strategic lawsuits against public participation, known as SLAPP suits. 

Englert in June denied a motion to dismiss Blanton’s CORA claims against Daugherty and Camacho.

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