Officials unnecessarily prolonged release of amended Elijah McClain autopsy report, CFOIC’s Zansberg says

By Jeffrey A. Roberts
CFOIC Executive Director

The public release Friday of the amended autopsy report on the 2019 death of Elijah McClain ended a legal fight that didn’t need to happen, said Steve Zansberg, president of the Colorado Freedom of Information Coalition.

In a statement announcing disclosure of the July 2021 amended report, Adams County Coroner Monica Broncucia-Jordan suggested she is a champion of transparency, writing that, as an elected official, she has “a democratic duty to provide citizens with information … This is a win for the people of Adams County and every family here in Colorado. Openness prevails.”

Elijah McClain
A mural of Elijah McClain at Epic Brewing Company in Denver.

But Broncucia-Jordan unnecessarily prolonged the amended report’s release by more than a month when she denied Colorado Open Records Act (CORA) requests for the document made by Colorado Public Radio and other news organizations, forcing them to go to court, contended Zansberg, a First Amendment and freedom-of-information attorney who represented CPR, its reporter Allison Sherry, and five other news outlets in a lawsuit against the coroner.

“It is unfortunate that public officials — both the Adams County coroner and the attorney general — did nothing to clarify Ms. Broncucia-Jordan’s obligations under the law when she was first asked to release the public record on Aug. 12,” he said.

The coroner said the state Attorney General’s Office had directed her not to fulfill the requests without an order from Denver District Court because the report was derived from the statewide grand jury investigation into McClain’s August 2019 death after he was forcibly restrained by Aurora police and injected with ketamine, a powerful sedative. “A court could construe the release of the amended autopsy report as a violation of grand jury secrecy,” the AG’s office wrote in a brief.

“Any public official who wished to abide by their duties under the Colorado Open Records Act would have sought clarification from the Denver chief judge on (Aug. 12),” Zansberg said. “Instead, (the coroner) did not do so until Sept. 20, and then only in response to an order entered in Adams County, the only court with jurisdiction to resolve an open records case for a public record located in that district.”

As the lawsuit Zansberg filed Sept. 1 states, coroners’ autopsy reports are public records “subject to no exemption from the disclosure requirements under CORA.” They are specifically excluded from CORA’s general medical records exemption and are not criminal justice records subject to the Colorado Criminal Justice Records Act. High courts in Colorado have held that an autopsy report on a homicide victim may be withheld only under the legal procedure specified in CORA for denying access based on “substantial injury to the public interest.” 

On Sept. 16, an Adams County District Court judge ruled that Broncucia-Jordan had to release the amended report with any redactions required by a January 2021 order authorizing release of grand jury materials to her office. The coroner then filed an emergency motion in Denver District Court, where Chief Judge Christopher Baumann is now presiding over the grand jury.

Zansberg noted that Baumann “didn’t even have a copy of the amended autopsy report.” The AG’s office had to provide it to him, and “he quickly concluded, with little or no difficulty, that it contains no information subject to grand jury secrecy.”

“As a result of these elected officials’ refusal to ask Baumann, in August, for clarification of the scope of the prior presiding judge’s order,” Zansberg said, Adams County is now legally obligated to pay the six media outlets the attorney’s fees they were forced to expend in the litigation.

“Not only did these public officials unnecessarily delay the disclosure of a public record,” he added, “they also imposed a substantial financial burden on Adams County that could easily have been avoided.”

The original autopsy report, completed in early November 2019, concluded that the coroner was unable to determine either the cause or manner of McClain’s death.

In the amended autopsy report released Friday, the coroner changed the cause of McClain’s death to “complications of ketamine administration following forcible restraint” but the manner of death remained “undermined.”

However, the grand jury indictment of three police officers and two paramedics, released publicly in September 2021, declared that an unidentified “forensic pathologist opined that the cause of death for Mr. McClain was complications following acute Ketamine administration during violent subdual and restraint by law enforcement and emergency response personnel, and the manner of death was homicide.”

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