By Jeffrey A. Roberts
CFOIC Executive Director

A lawsuit filed by The Gazette, reporter Chris Osher and the Invisible Institute, a Chicago-based journalism nonprofit, seeks the public disclosure of Colorado’s database of certified law enforcement officers.

The office of state Attorney General Phil Weiser denied both organizations’ requests for the Peace Officer Standards and Training (POST) data, claiming the AG isn’t required under the Colorado Criminal Justice Records Act (CCJRA) to “manipulate” digital records in response to a request.

But the POST board, although a unit of the AG’s office, is not a criminal justice agency as defined by the CCJRA because it does not perform “any activity directly relating to the detection or investigation of crime,” contends the lawsuit, filed Friday in Denver District Court against POST director Erik Bourgerie.

Its duties are like any other state licensing board “tasked with providing uniformity of practice and training across a profession,” the complaint says, and the AG should have processed the requests under the Colorado Open Records Act (CORA), which includes electronic and digitally stored records in its definition of public records open for inspection and copying.

“By its own description, the Board’s function is limited exclusively to ‘documenting and managing the certification and training of all active peace officers and reserve peace officers working for Colorado law enforcement agencies.’ The Board does not play any role (much less a ‘direct’ one) in investigating, arresting, charging, prosecuting, sentencing, imprisoning or paroling a single criminal suspect,” wrote attorney Rachael Johnson, who was hired by the Reporters Committee for Freedom of the Press last year to assist Colorado journalists.

The lawsuit is the first to be filed under the RCFP’s Local Legal Initiative in Colorado.

“Public agencies cannot be allowed to withhold public records by claiming, incorrectly, that the public records act’s requirements do not apply to them,” Johnson said. “Local communities should better understand how police officers are certified, decertified and trained. We hope the court agrees with our clients that the database they requested is governed by the Colorado Open Records Act and must be released to the public.”

Asked to comment on the suit, AG’s office spokesman Lawrence Pacheco told the Colorado Freedom of Information Coalition: “This lawsuit raises the question of whether POST records are confidential criminal justice records governed by the Colorado Criminal Justice Records Act. This is an important legal question that should be resolved by the courts.”

Osher has written numerous investigative articles about policing and Colorado’s criminal justice system, including a 2020 Gazette story on alleged ties between gang members and a Denver sheriff’s official and a 2015 series (when Osher worked for The Denver Post) on rogue officers who moved from department to department after serious transgressions. “The extent of the problem is unknown,” he wrote in The Post. “The Colorado attorney general’s office refused to release to The Post a state database that tracks the employment history of officers and would provide only limited information on hundreds of officers the newspaper submitted for review.”

Last June, as a reporter for The Gazette’s Colorado Springs and Denver editions, Osher again requested a digital copy of the POST database “tracking certification, training, and personnel changes of law enforcement officers in Colorado.” Pacheco denied the request: “In our discretion, we decline to manipulate the requested data in response to your request.” In a subsequent email, Pacheco wrote that POST meets the definition of a criminal justice agency because “the training funded by POST covers various policing issues include crime investigation and arrests.”

Last August, Osher asked for a portion of the POST data, specifically records showing “when any person is appointed or separated as a certified peace officer” since Jan. 1, 2020. Pacheco responded again that the AG is not required to manipulate digital data under the CCJRA.

“Publicly disclosing the names of peace officers in response to your request threatens harm to ongoing investigations and to the safety of peace officers,” he added. “POST is not privy to the names of officers who may be working undercover or who otherwise may have their safety compromised if POST releases the requested information.”

According to the lawsuit, at least 23 states have provided police certification information or access to their equivalent POST database in response to public records requests made by Invisible Institute. The organization, which reports on police misconduct in Chicago and nationwide, requested the Colorado POST database in August 2019. Pacheco denied that request as well, writing the agency is not required under the CCJRA “to manipulate the requested data in response to your request.”

CORA, however, does entitle requesters to copies of public records stored in digital formats, the complaint notes. Under a provision added to the statute in 2017, if public records are kept in “sortable” or “searchable” formats, the records custodian must provide copies in similar formats. Additionally, altering a public records database to remove information that cannot be disclosed “does not constitute the creation of a new public record.” This language is intended to ensure that public records aren’t withheld because a data set contains some confidential fields that must be deleted.

“A simple querying of the POST Database could produce the records requested by” Osher and the Invisible Institute, the lawsuit says. “Therefore, the extraction of those records from a computer database system does not amount to a manipulation of data and the creation of a new record.”

And because Bourgerie “has not cited any statutory exemption contained in CORA” to withhold the records, they must be disclosed “in a searchable or sortable format,” it adds.

The lawsuit also argues that, even if the POST database were subject to the CCJRA, the denials “constituted an abuse of discretion.” Under a 2005 Colorado Supreme Court ruling, Harris v. Denver Post, custodians must balance pertinent factors before deciding to withhold criminal justice records. Bourgerie “failed to balance the public and private interests involved before denying Plaintiffs’ requests for access to the POST database,” the complaint says.

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