By Jeffrey A. Roberts
CFOIC Executive Director
A Denver judge ruled Tuesday that Colorado’s health care exchange improperly denied “valid and appropriate” open-records requests made in early 2015 by Independence Institute reporter Todd Shepherd.
District Court Judge Elizabeth Starrs granted a motion for summary judgement filed by the Independence Institute, a Denver-based free-market think tank. The motion argued that Connect for Health Colorado’s internal policy, which requires records requesters to identify a particular subject matter, allowed the agency “to deny records otherwise discoverable under” the Colorado Open Records Act (CORA).
“Connect for Health was trying to hide behind a policy to prevent the production of documents, and the court rightly struck that down,” said attorney Geoff Blue, who represented the Independence Institute in the case along with former Secretary of State Scott Gessler.
Connect for Health Colorado spokesman Luke Clarke said he hadn’t seen the judge’s order and, therefore, couldn’t comment on the ruling or whether the health care exchange plans to appeal.
As we wrote when the Independence Institute filed the lawsuit in April 2015, Shepherd made three requests for emails that Connect for Health Colorado rejected, claiming they were unreasonable and overly broad “fishing expeditions.”
Shepherd first asked for emails of three exchange employees spanning a two-day period. He narrowed the scope to a one-day period after the chief marketing officer responded that his CORA request was “potentially substantial and administratively burdensome” because each email had to be reviewed for privileged information.
Following a second denial, Shepherd requested the emails of two employees for a specific five-hour period on a particular day. Denying the third request, the agency’s general counsel argued, “It is not reasonable to review ‘all emails’ on all topics for even one individual.”
“All Shepherd was asked to do was to identify the subject matter of the emails he sought to inspect,” an attorney for Connect for Health Colorado wrote in a court motion filed in March. He contended the exchange’s policy is consistent with wording in CORA that lets custodians impose regulatory limitations on the public’s right to inspect records to prevent “unnecessary interference with the duties of the custodian.”
But those limitations concern “the manner in which the public records are made available, and not…the nature of the public records themselves,” Starrs ruled.
The CORA statute, the judge wrote, “speaks only to the protection of the records and the way in which they (are) made accessible. It does not provide a custodian leeway to decide which documents can be made accessible to the public based on the documents’ subject matter.”
Starrs found that the Independence Institute “sufficiently specified the records requested” and that Connect for Health Colorado “can easily identify the records sought.” The health care exchange, she noted, may state that some of the emails are exempt from disclosure under CORA exceptions. “However, to date, it has not done so.”
Shepherd called the judge’s ruling “a great win for transparency and open government.”
“However,” he added, “it’s unfortunate that the health exchange delayed matters by over a year and cost the taxpayers tens of thousands of dollars to make a frivolous argument all in an attempt to place a greater burden on those who request government records.”
Government “must be held accountable for how it spends money and makes health care decisions,” said Blue, a partner in the law firm of Klenda, Gessler & Blue.
Note: The Independence Institute is a member of the Colorado Freedom of Information Coalition.
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