By Jeffrey A. Roberts
CFOIC Executive Director
State law caps the hourly rate Colorado governments may charge to fulfill public records requests at $33.58, and it forbids records custodians from charging any money for the first hour of research and retrieval.
Despite that provision in the Colorado Open Records Act, the Pikes Peak Regional Building Department, which serves Colorado Springs, El Paso County and six other government entities, charges a “nominal fee of $50.00 per record in response to a request for research, retrieval and production of public records,” according to its policy and agency officials.
Not only is a $50-per-record research fee not authorized in CORA, the building department’s public records policy makes no mention of providing a free hour to requesters. That is an “unequivocal violation of CORA,” said Steve Zansberg, a First Amendment lawyer and president of the Colorado Freedom of Information Coalition. The department’s justification for its research-and-retrieval fee is “simply lacking in any legal basis,” he added.
CFOIC learned about the building department’s records policy, which was updated in July 2019, after a member of the public asked the agency whether a certificate of occupancy had been issued for a charter school. A department employee told her the certificate had not yet been issued and provided a link to the records policy if she wanted to request a copy when it was ready.
Adopted by the General Assembly in 2014, the CORA provision on research-and-retrieval fees (C.R.S. 24-72-205), allows a records custodian to impose a fee only if it is specified in a written policy published on the agency’s website or elsewhere. “Under any such policy,” the statute says, “the custodian shall not impose a charge for the first hour of time expended in connection with the research and retrieval of public records. After the first hour of time has been expended, the custodian may charge a fee for the research and retrieval of public records that shall not exceed thirty dollars per hour.” The maximum hourly rate is adjusted for inflation every five years and is now $33.58.
Eric Hall, outside counsel for the Pikes Peak Regional Building Department, defended the $50-per-record research fee in an email to Zansberg.
“Individualized requests trigger several fee provisions under C.R.S. 24-72-205,” he wrote, the first being the research-and-retrieval fee. He acknowledged CORA’s $33.58 hourly rate, “after the first hour, which is free” for the time it takes the department’s legal assistant to locate records responsive to a request.
Hall then cited a CORA provision regarding the fee for copying a public record that “is a result of computer output other than wording processing.” Such a fee, the law says, “may be based on recovery of the actual incremental costs of providing the electronic services and products together with a reasonable portion of the costs associated with building and maintaining the information system.”
“The Department has factored into its $50 flat fee the ‘actual incremental costs of providing’ each record plus ‘a reasonable portion of the costs associated with building and maintaining’ the Department’s robust computer system,” Hall wrote.
Also factored in, he explained, is the cost of “manipulating data and generating a record not in a form used by the Department.” Such a fee, CORA stipulates, “shall not exceed the actual cost of manipulating the said data and generating the said record in accordance with the request.”
“For each record produced, the Department reviews and redacts personally identifiable information and password-protects the electronic disclosures to prevent editing,” Hall wrote Zansberg. “Years ago the Department learned that these safeguards are needed to ensure the integrity of the records it produces and the privacy of those involved. As a result, this ‘manipulation and generation’ fee is also included in the $50 flat fee per record.”
Finally, Hall added, the $50-per-record charge includes the cost of providing a copy. He noted that CORA allows a fee, not to exceed the actual cost, of providing a copy in a format other than a standard page. “Many construction documents do not fit on a ‘standard page.’ While not large, this copy fee is also included in the $50 fee per record.”
Zansberg said Hall‘s justification for the $50 fee is “a creative attempt, after the fact, to rationalize an unlawful fee schedule.”
“The other types of fees they claim are automatically ‘folded into’ their standard ‘search, retrieval and reproduction’ fee might apply to some records requests but certainly not to all of them,” he wrote in an email.
“For example, someone requesting a photocopy of a set of paper records cannot lawfully be charged for ‘manipulating data’ in a digitized record or for the cost of creating and maintaining a database to which the records request does not apply. Yet, such a requester would, under the board’s written policy and its counsel’s explanation, be charged such expenses.”
Zansberg said the flat $50-per-record fee is “quite plainly in violation of CORA.”
“It’s obvious that a records requester cannot be charged for services that the public entity did not in fact perform in fulfilling his/her request. It would be interesting to see the board’s public records, including emails, from June and July 2019, that explain the board’s decision to adopt the unlawful $50 per record fee, to see whether Mr. Hall’s post-hoc explanation was even a part of those discussions.”
CFOIC could not find another CORA fees policy like the one adopted by the Pikes Peak Building Department. Aurora’s building division directed us to the city clerk, whose web page links to a city fee schedule showing a $33-per-hour research-and-retrieval fee for records requests after the first hour.
Denver Community Planning and Development publishes the same research-and-retrieval rate — $33 per hour after the first hour. Lakewood publishes a research-and-retrieval rate of $33.58-per-hour after the first hour for building permits and other public records.
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