By Jeffrey A. Roberts
CFOIC Executive Director
Unlike the statute governing the release of criminal-justice records, the Colorado Open Records Act (CORA) says nothing about the fees that local governments and the state may charge to research and retrieve all other public records. So it is up to the courts to provide guidance.
Earlier this month, the Colorado Court of Appeals addressed the cost of CORA requests in Mountain-Plains Investment Corp. v. Parker Jordan Metropolitan District. The appellate court concluded that a records custodian “may charge a reasonable fee for retrieving and researching records, including the time it takes to identify and segregate records that need not be disclosed.” (The fee to obtain copies of most public records is set by CORA at 25 cents per page).
But what is a “reasonable” fee? The answer to that question was spelled out in the Court of Appeals’ 2003 ruling in Black v. Southwestern Water Conservation District. The court’s Aug. 15 ruling in the Mountain-Plains case affirmed the Black decision, according to attorney Steve Zansberg, who represents members of the Colorado Press Association and other news organizations on media-law matters.
The Black decision established that public entities in Colorado can charge only “nominal” fees for requests that require researching and retrieving “voluminous” records. The court did not specify the meaning of “voluminous” but a “nominal” charge is defined as “trifling, especially as compared to what would be expected.” In other words, it should be much less than the actual cost of culling the records.
The disputed CORA request in the Mountain-Plains case involved research-and-retrieval fees totaling $16,025. That is how much the Parker Jordan Metropolitan District charged some Arapahoe County property owners in 2011 for records related to a multi-million-dollar stream improvement project on land they had sold to the district two years earlier. The $16,025 in fees included an estimated $14,305 for staff time (at $25 per hour) to retrieve requested emails and $1,720 for the district’s general counsel to identify privileged emails that should be withheld. The property owners sued, arguing in part that the Black ruling prohibits the charging of thousands of dollars for time spent extracting and reviewing requested public records.
The trial court decided, among other issues, that the district was allowed to charge the plaintiffs $25 per hour to retrieve and compile the emails but could not charge them to identify privileged documents. The Court of Appeals upheld the $25-per-hour retrieval-and-compiling charges and, reversing the trial court, allowed a $25-per-hour charge to assess privileged material. It also said that the district was justified in requiring the payment of a deposit, and in charging the requesters for the time district employees spent generating a privilege log.
The Court of Appeals noted that the trial court had “weighed the cost to plaintiffs against the reasonable time for retrieving and reviewing the documents and found the $25 per hour fee to be reasonable.” To Zansberg, who serves on the Colorado Freedom of Information Coalition’s executive committee, the ruling does not undermine the “nominal fees” standard, set by the Black decision, that “such fees must be substantially less than the actual staff salary time expended in responding to the request.”
This does not mean that a bill for researching and retrieving records will necessarily be inexpensive, as shown by the $16,025 in fees in the Mountain-Plains case. Citizens and journalists often are deterred from requesting public records because the cost can be so high.
The Colorado General Assembly may take up the issue of CORA fees in the coming legislative session. Rep. Joe Salazar, D-Thornton, has announced his intention to introduce a new version of an open-records bill that he sponsored in 2013 but later withdrew.
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