By Jeffrey A. Roberts
CFOIC Executive Director
A ruling by the state’s highest court Monday means that the bulk of Colorado’s licensing database of law enforcement officers will remain confidential.
Affirming a 2023 appellate court opinion, the Colorado Supreme Court held that the Peace Officer Standards and Training (POST) board, which maintains the statewide certification information, is a criminal justice agency whose records are subject to the Colorado Criminal Justice Records Act (CCJRA) rather than the Colorado Open Records Act (CORA).
That distinction allowed POST to deny requests for the database made by The Gazette and the Chicago-based Invisible Institute after conducting a balancing test of interests under CCJRA. If CORA instead had governed POST’s records, disclosure would have been subject to a provision in the statute entitling requesters to copies of public records in “sortable” and “searchable” formats minus any confidential fields of information.
Writing for the Supreme Court, Justice Maria Berkenkotter agreed with the Court of Appeals that POST fits CCJRA’s definition of a criminal justice agency because it performs activities “directly relating to the detection or investigation of crime,” including misconduct and police impersonation.
But she avoided the appellate court’s conclusion that POST also fits the definition because it maintains records used to conduct criminal background checks on peace officers and prospective officers — a finding that might have exempted the state dental board and multiple other agencies from CORA simply because they too conduct criminal backgrounds checks of licensees and prospective employees. “That is absurd and cannot stand,” Steve Zansberg, a First Amendment attorney and president of the Colorado Freedom of Information Coalition, had said about the Court of Appeals’ opinion.
Criminal justice agencies, according to CCJRA, perform activities “directly relating to the detection or investigation of crime; the apprehension, pretrial release, posttrial release, prosecution, correctional supervision, rehabilitation, evaluation, or treatment of accused persons or criminal offenders; or criminal identification activities or the collection, storage, or dissemination of arrest and criminal records information.”
“We need not determine whether the (Court of Appeals’) reasoning or POST’s additional theory regarding its collection and storage of criminal background check information during its certification process are sufficient because POST’s work investigating crimes like police impersonation alone qualifies it as a criminal justice agency,” Berkenkotter wrote.
“We decide this case narrowly and cabin our analysis to POST and POST alone, recognizing that the question of whether a governmental entity constitutes a criminal justice agency, as that term is used in the CCJRA, will necessarily turn on the specific functions an entity is required or authorized to perform by law,” she added.
Berkenkotter also noted that POST’s director and investigator “are both designated peace officers, meaning they are statutorily authorized to enforce Colorado law. POST’s enabling legislation further authorizes it to enforce laws pertaining to the training and certification of peace officers.”
The Supreme Court’s ruling ends a court battle that began in 2021 with a lawsuit filed by the Reporters Committee for Freedom of the Press on behalf of The Gazette, Gazette reporter Chris Osher and the Invisible Institute. Denver District Court Judge J. Eric Elliff ruled that POST is a criminal justice agency and that Chief Deputy District Attorney General Natalie Hanlon Leh, as the POST board’s records custodian, did not abuse her discretion under CCJRA when denying the journalists’ requests in 2019 and 2020.
“It doesn’t matter whether I think the information … is of critical importance to the state,” Elliff said at the time. “It doesn’t matter. And it doesn’t matter that I personally would balance things a little differently than the Attorney General’s office. All I can do is look at what the Attorney General’s office did and determine whether abuse of discretion occurred.”
When the Court of Appeals upheld Elliff’s decision, Osher discussed the implications with CFOIC. As a reporter for The Gazette and previously The Denver Post, he had written several stories about officers with blemished records who were hired by other police departments.
“Law enforcement officers throughout Colorado make decisions that can decide who lives and who dies, who goes to jail and who walks free,” Osher said. ”At a time when the public is demanding more transparency about how law enforcement officers exercise their judgment on such matters, the courts of Colorado have allowed state officials to shield from public view relevant information they possess on the work histories of officers throughout the state.”
A state law enacted in 2021 required POST to create a searchable online database that includes some records maintained by the agency, including whether an officer has been decertified. But reporting by the Colorado News Collaborative last year showed how the database is “beset with glitches,” as well as inaccuracies and omissions.
The Invisible Institute and its partners, meanwhile, have obtained police employment data in 25 other states, which they publish on the National Police Index.
“It is disappointing that this decision leaves Colorado in a small minority of states where centralized police employment history information is kept secret by the agency that holds it,” Invisible Institute reporter Sam Stecklow told CFOIC.
“This decision means that Coloradans will continue to be subject to a lesser degree of transparency about their law enforcement officers than residents of 25 other states enjoy.”
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