By Jeffrey A. Roberts
CFOIC Executive Director
A state senator is trying again to curb what she has referred to as the “abuse” of the Colorado Open Records Act by certain records requesters.
Similar to a bill that died near the end of the 2024 legislative session, Senate Bill 25-077 gives records custodians extra time to respond to requests made by the public. It lets governments charge “the reasonable cost” associated with filling commercial requests and take up to 30 working days to do so. It also lets them treat multiple CORA requests made by the same person within 14 days as one request — ensuring the requester gets only one free hour before “research and retrieval” charges kick in.
But this year’s measure from Sen. Cathy Kipp, D-Fort Collins, does not include some of the most controversial elements of last year’s proposal: letting records custodians label certain annoying or harassing people as “vexatious” and barring them from obtaining public records for more than a month; limiting public inspection of government employee calendars; and a broad exemption for records containing information that “would invade another individual’s personal privacy.”
Under SB 25-077, introduced Thursday, state agencies and local governments would have five working days rather than CORA’s current deadline of three working days, to comply with records requests, and an additional 10 working days, rather than seven, if “extenuating circumstances” apply. Another provision adds an extenuating circumstance when a records custodian is not scheduled to work during the response period. The current deadlines wouldn’t change for the news media as defined by Colorado’s reporter’s shield law.
Kipp has said reform is needed to rein in the “abuse of CORA” experienced by governments “already stretched pretty thin.” Another sponsor of last year’s measure complained about certain individuals “bogging down” records custodians with large numbers of requests.
The Colorado Freedom of Information Coalition opposed the additional obstacles created by the 2024 bill, HB 24-1296, particularly because exorbitant fees already can be a significant barrier to obtaining public records.
Because of an inflation factor built into CORA, the maximum hourly rate state and local government entities can charge to process records requests jumped more than 23 percent on July 1 — from $33.58 to $41.37. CFOIC has counted more than 340 cities, towns, counties, state agencies, special districts, school districts and public universities that have raised their CORA fee rates since the new maximum went into effect.
CFOIC often hears from frustrated requesters who don’t receive records by the deadlines in CORA, but lawsuits over delayed responses are rare, presumably because of the time it takes to resolve litigation. An attorney sued the Colorado Department of Public Health and Environment in 2020 after the agency failed to provide COVID-19 records on time, but the case was settled.
Whether requesters can challenge CORA response delays in court might be in question given a recent Colorado Court of Appeals opinion that the Colorado judiciary can’t be sued for delaying its response to a request for administrative records — if the records eventually are provided to the requester. Although the ruling concerned the judicial branch’s records rules, not CORA, both have similar language regarding the right to sue in district court.
Kipp’s bill contains several other provisions, some of which would benefit records requesters.
It requires government entities to post on their websites rules and policies about how to make CORA requests as well as their records retention policies. If a requester asks, a custodian must provide “a reasonable break-down of costs that comprises the fee charged for research and retrieval of public records.”
The bill also clarifies that a government entity must allow electronic payments for public records if that government entity lets the public pay for services or products electronically. Some governments still require requesters to write paper checks for public records, interpreting a 2023 CORA amendment to mean that records custodians don’t have to accept credit cards if that designated person doesn’t take credit cards for other services or products.
The provision allowing records custodians to treat multiple CORA requests made by the same person within 14 days as one request applies to requests for information “pertaining to facially similar content.” It does not apply to news media requests.
The extended response and “reasonable cost” provisions for commercial requests would go into effect if a records custodian determines that the requested public records “will be used for the direct solicitation of business for pecuniary gain.” A requester could appeal that designation in district court.
SB 25-077 is also sponsored by Sen. Janice Rich, R-Grand Junction, and Reps. Michael Carter, D-Aurora, and Matt Soper, R-Delta.
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