By Jeffrey A. Roberts
CFOIC Executive Director

The public hospital district in Estes Park is not required to redact privileged information from attorney billing invoices and release non-confidential portions to the Estes Valley Voice news site, a judge ruled Wednesday.

The Colorado Open Records Act (CORA) “does not contain a duty to redact,” wrote Larimer County District Court Judge Gregory Lammons in an order, siding with Estes Park Health’s position that “redaction is a permissible but optional approach.”

“The legislature failed to set forth a procedure for cases where public records contain both privileged and unprivileged material,” the judge added. “Although (Estes Valley Voice) asked the Court to find an implied duty to redact, the Colorado Supreme Court has rejected the existence of an implied duty.”

The Estes Valley Voice will appeal the ruling, the news organization’s attorneys, Michael Beylkin and Steve Zansberg, told the Colorado Freedom of Information Coalition.

In an emailed statement, Zansberg said that Lammons’ ruling “erroneously relies on a single decision from 1988 that does not, in fact, hold there is no duty to redact; it holds only that removing students’ identities from exempt individual academic examination papers would not convert them into non-exempt “group scholastic achievement data.” 

“Numerous precedents, ignored by this court’s ruling, expressly require redaction,” added Zansberg, who is CFOIC’s president. “To hold otherwise would permit a records custodian to withhold a 1,000-page document because a single social security number appears on page 876. That is not the law.”

Lammons’ ruling cites the Supreme Court’s decision in Sargent School District No. RE-33J v. Western Services Inc. “In reversing the Court of Appeals, the Supreme Court found that CORA does not create an implied duty to alter records that contain both exempt and non-exempt information,” it says. “This Court is bound by that holding.”

But a hearing brief submitted by Beylkin and Zansberg points out that CORA requires records custodians to disclose public records —  “or any portion thereof” — unless an exception applies. The Sargent ruling, the brief says, “merely held there was no statutory duty on the custodian to redact ‘identifying information’ from an individual’s testing sheets (and to affirmatively insert new information in place thereof).” In that case, the entire record was not subject to disclosure under the CORA exemption for “scholastic achievement data … on individual persons.”

Since that ruling, Beylkin and Zansberg noted, Colorado case law has “required redaction of public records that contain a limited amount of information subject to a statutory exemption from disclosure.” 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. In Ritter v. Jones, 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.”

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.

“Obviously we’re disappointed,” Suzy Blackhurst, the Voice’s senior editor, said about Wednesday’s ruling. “We firmly believe in the importance of having public officials act with integrity, and in a transparent manner for the constituents they serve. Rest assured, we will continue to tell our community’s stories honestly, and for the betterment of all.”

Voice editor Patti Brown said the news organization “has been frustrated by the way the administration and board of the Park Hospital District, a taxpayer funded special district, has played hide-the-ball and run-the-clock in withholding information from the public. Special districts are units of government and the public’s business must be done publicly. That includes documents such as the letter of intent Estes Park Health signed related to its acquisition by UCHealth to financial documents related to how much a public institution paid to a law firm.”

“The role of the media is to be a watchdog of government, to ask elected and appointed officials hard questions, and to demand transparency and accountability,” Brown said.

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