By Jeffrey A. Roberts
CFOIC Executive Director

Dan Caplis, an attorney and radio talk show host, is suing the state health department for failing to provide requested documents related to the coronavirus pandemic within the time frame specified in the Colorado Open Records Act.

His lawsuit, filed Friday in Denver District Court, says 10 working days have passed since he asked the Colorado Department of Public Health and Environment for emails and other records “pertaining to the issue of whether any or all travelers to Colorado from out of state should be subject to any type of COVID-19 mitigation effort by the state of Colorado or any other agency or entity, including but not limited to a quarantine.”

According to Caplis’ complaint, he paid the health department $697 after being told it would take approximately 24¼ hours to retrieve and review the records. “Despite multiple conferrals by Caplis with CDPHE, it has still not produced any of the requested emails or documents or identified a date certain by which they will be produced,” the lawsuit says.

With a $599 million budget and more than 1,000 employees, the health department has “sufficient resources available to it to respond to this focused request within the time period mandated by CORA,” his complaint adds. “And during this type of emergency it is more important than ever that CDPHE respond promptly to a request focused on defeating this ongoing threat to the health of the public.”

For records that are “not readily available,” CORA requires the date and hour set for inspection to be within a “reasonable time” after a request is made, presumed in the law as three working days or less. Records custodians may extend the response period by not more than seven working days if – during the initial three-day period – they provide requesters with a written explanation of “extenuating circumstances.”

One such circumstance, as spelled out in the statute, permits an extension if an agency “needs to devote all or substantially all of its resources to meeting an impending deadline or period of peak demand that is either unique or not predicted to recur more frequently than once a month.”

In an Apr. 7 letter, Monica Wilkerson of the health department informed Caplis of the hours required to find and review the emails, adding that “non-email records have not been searched at this time as staff who may have responsive material are significantly involved in COVID-19 response activities and are not able to devote resources to performing a search of computer files.”

Ann Hause, director of the health department’s Office of Legal and Regulatory Compliance, also noted in an Apr. 8 letter to Caplis that “employees have been transitioned from their primary work duties to assist in the (COVID-19) response activities.” Caplis’ records request was one of at least 36 related to the pandemic, “and we have not yet been able to fulfill all of these requests … We do not have additional staff to add to this task nor are we prioritizing your request over the others that we received earlier than yours.”

“You have not been denied the right to inspect any records at this point,” Hause wrote. “To the contrary, you have been told that we will make records available. Having not been denied the right to inspection, our position is that any … district court action is premature.”

In his complaint, Caplis contends that “immediate production” of the requested records is necessary “so that the people of Colorado have the information they need to try to reverse the Governor’s dangerous decision to allow travelers from COVID-19 hot spots to enter into Colorado’s population centers unchecked and without any type of quarantine.

“Every day that goes by with that fatally flawed policy in place results in the importation of more COVID-19 into Colorado, risking more preventable infections, hospitalizations and deaths.”

Caplis, who hosts a weekday show on 630 KHOW radio, wrote a Mar. 30 op-ed in The Gazette criticizing Gov. Jared Polis for not enforcing a “focused and targeted” quarantine at Colorado airports, bus stations and train stations.

Contacted by the Colorado Freedom of Information Coalition, health department spokesperson Jessica Bralish said, “Per standard practices, CDPHE does not typically provide comment on pending or active litigation.”

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