By Jeffrey A. Roberts
CFOIC Executive Director
A Colorado Open Records Act provision used in court by the town of Hudson to validate a denial of records requested by 9NEWS was “neither necessary nor available” as a legal remedy, a judge has ruled.
Weld County District Court Judge Shannon Lyons dismissed the town’s July 23 complaint, which claimed that pre-disciplinary notices issued to two now-former employees before they resigned are confidential under CORA’s personnel files exemption and deliberative process privilege.
The town had asked for an order to restrict disclosure of the records, contending that releasing them “would do substantial injury to the public interest.”
9NEWS disagreed with the denial. But because it “took no action to compel disclosure of the requested documents,” Hudson’s application for a declaratory judgment was “premature,” Lyons wrote in his ruling. “Thus, 9NEWS has been involuntarily forced to litigate based merely on its act of having made a request for records.”
Hudson previously provided the resignation letters of Chief Scott Sedgwick and Lt. Dustin Trujillo, but only after the Colorado Freedom of Information Coalition and CFOIC’s president, attorney Steve Zansberg, helped 9NEWS journalist Steve Staeger argue for their release.
Staeger’s subsequent request for the pre-disciplinary notices prompted Hudson’s lawsuit under C.R.S. § 24-72-204(6)(a). That CORA provision lets a records custodian seek a court order to restrict the disclosure of records that might otherwise be available for public inspection if they believe unique circumstances exist that would “do “substantial injury to the public interest.” A custodian also may ask for a judicial clarification if they cannot, in good faith, determine if disclosure of certain records is prohibited.
For “guidance on the proper procedure,” Lyons cited Gumina v. Sterling in which the Colorado Court of Appeals stated, “If the court orders that the records should be open to public inspection, the official custodian of public records may then apply to the district court to restrict disclosure if such disclosure would do substantial injury to the public interest.”
“If ‘substantial injury’ is a first resort argument,” Lyons reasoned, “then every official custodian who denies a request for disclosure would be entitled to file an application for judicial review to validate his or her decision whenever there is a basis to believe that release of the public records ‘would do substantial injury to the public interest.’ Such a practice has the potential to unnecessarily consume significant judicial resources and time.”
Before any district court decides whether the release of the records requested by Staeger would harm the public interest, the court “must first assess whether the Town’s original bases for denial — personnel files exemption and deliberative process privilege — have any application in this case,” the judge added.
“Simply put, the records at issue face no present threat of public disclosure and, therefore, the Town is not entitled to assert ‘substantial injury’ under C.R.S. § 24-72-204(6)(a) to prevent a disclosure that has never been authorized or ordered.”
Rachael Johnson, a Colorado-based attorney with the Reporters Committee for Freedom of the Press, represented 9NEWS in the Hudson lawsuit.
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