Salida and city council sued over CORA requests

By Jan Wondra
Mountain Mail Staff Writer

A group of four people has filed court documents in Chaffee County District Court against the city of Salida, the entire city council, Mayor Jim LiVecchi, City Clerk Betty Schwitzer and Deputy City Clerk Christian Samora.

The suit, brought by James Miller, Louise Fish, Tom Bomer and Walt Harder, alleges that their repeated requests for records under the Colorado Open Records Act (CORA) have been met with delays, incomplete records and exorbitant fees.

Individually and together, each of the individuals suing the city alleges that although the city has an Open Records Act policy, their requests for information have not been addressed in the legal timeframe or in an open way.

Their suit claims that requests for some records have been met with statements such as the one regarding the city audit process: “Requested correspondence between the City Attorney and the City Auditor is privileged and not subject to disclosure in compliance with CORA.”

The right to information generated by Colorado government while conducting work on behalf of the public is guaranteed to every citizen by the Colorado Open Records Act. The U.S. Constitution guarantees citizens the right to petition the government for a redress of grievances. However, there can be elements of documents that, if released, might violate an individual citizen’s privacy or the client privilege aspects of legal advice.

The information sought by the four plaintiffs includes documents related to the non-renewal of the former city administrator’s contract, the departure of the city’s finance director, the hiring of the new city attorney and billing records of the new city attorney.

In each case Samora responded to the requesting party that a response would be provided within the 7 working days pursuant to CORA rules, and in cases where a request appeared to be extensive, a cost estimate was included. In some cases, that cost was substantial, ranging from $100 up to several thousand dollars for requests that could take anywhere from 37 to 151 hours to fulfill. Prior to fulfilling major requests, the city requested deposits against the work to be completed.

In response, the plaintiffs requested to know who had prepared that estimate, which according to city guidelines is billed at $20-$30 per hour to cover the city’s costs to meet the request.

The suit includes complaints about the estimated costs, in one case referring to it as follows: “The required deposit of $2,400 and the potential cost of production to receive the requested documents had a chilling effect on Fish’s decision to pursue this records request, forcing her to cancel her May 20, 2016, request.”

The suit refers to estimated costs it states are unfair and exorbitant.

“Not true at all. They’re being treated like everyone else, just now it’s their turn,” said resident Steve Tafoya, who began requesting information during the increase in city water rates. “I’ve been charged hundreds of dollars over the past several years for these kinds of requests.

“We had a local attorney who said that citizens have to be legally sophisticated to get info from CORA requests. He said, ‘It’s complicated and it’s not just Colorado.’

“Well, in 2012 when nobody showed up at council meeting, we showed up, asked questions and it cost us to get the info to force them to run the water enterprise like a business. Now they know what we went through,” Tafoya said.

The suit, which was officially filed Aug. 9, includes seven claims for relief by the four plaintiffs. These include requesting that the city show cause for not releasing documents, that it not destroy documents they want and claims of excessive hours and fee costs being applied in a prejudicial manner that would be “impossible,” which in their view  should be considered “an obstruction of public access to public records.”

The suit requests a hearing at the earliest possible date and the opening of records to their review. It includes a demand that the city pay their court costs and attorney’s fees.

Tafoya, who considers himself on the opposite end of the political spectrum, said he disagrees with the plaintiff’s assertions but also admits that for him the most frustrating aspect of the city’s CORA policy is how long it can take to get things.

“When I make a request of the county, I typically get the document the day I make my request or the next day at the very least,” he said.

The Mountain Mail verified Tafoya’s assertions about his payments for the CORA information he requests from the city. He said that over time he has gotten better at his requests.

“To me it has to do with writing the proper CORA request. I’ve learned how to write a concise request,” said Tafoya. “You have to add a timeframe, put in specifics. You write a ‘give me everything about this or that’ kind of request, it’s going to cost you. I know. I’ve done it, I’ve been charged, and I’ve paid.”

The Mountain Mail granted permission to reprint this article in its entirety.

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