by Sharon Eubanks
In 2006, the Colorado Republican Party (CRP) made a request under the Colorado Open Records Act (CORA), part 2 of article 72 of title 24, Colorado Revised Statutes, to several Democratic members of the House of Representatives (Representatives) asking for documents relating to an entity identified as Research & Democracy. At the time, the Representatives had in their possession responses from constituents in their respective districts to surveys that Research & Democracy sent out on the Representatives’ behalf.
The survey asked a constituent to indicate what was the most important thing the Legislature accomplished during the 2005 session and what two topics should be priorities for legislators in the upcoming 2006 session. A constituent could check a box next to a choice of printed responses or handwrite a response. The survey also asked if the constituent would like to receive email updates from the legislator, and a space was provided for the constituent to write his or her email address. Constituents mailed completed responses back to their elected Representatives.
CORA’s exemption for confidential constituent communications
CORA provides that “all public records shall be open for inspection by any person at reasonable times” except for a number of specific exceptions. While public records generally include the correspondence of elected officials, they don’t include correspondence that is
a communication from a constituent to an elected official that clearly implies by its nature or content that the constituent expects that it is confidential or that is communicated for the purpose of requesting that the elected official render assistance or information relating to a personal and private matter that is not publicly known affecting the constituent. (See 24-72-202 (6) (a) (II), C.R.S.)
The Representatives initially claimed that all 1,584 constituent survey responses were confidential constituent communications and denied CRP the right to inspect them. CRP filed an action in Denver District Court seeking to force production of all the survey responses. The District Court held that most of the survey responses were public records subject to inspection under CORA and that the survey responses did not create an expectation of confidentiality on the part of constituents. The District Court did permit the Representatives to redact any information in the survey responses that constituents specifically requested be kept confidential.
The Representatives appealed to the Colorado Court of Appeals, which reversed and directed the District Court to review each completed survey in camera using guidelines developed by the Court of Appeals to determine whether the constituent expected the survey response to be confidential. (See 2008 Colo. App. LEXIS 1708) Applying the guidelines, the District Court found that only survey responses that both included identifying information and disclosed personal information such as financial, health, or other circumstances were not public records and thus not subject to production. The Representatives were required to produce the rest of the survey responses even if they contained identifying information such as name, email address, mailing address, or telephone number. However, if a constituent requested identifying information be kept confidential, the Representatives redacted that information before making the survey response available. Ultimately, the Representatives produced 925 survey responses for inspection by CRP and withheld 659 survey responses as confidential constituent communications.
As custodians of public records, legislators should realize that not all constituent communications are exempt from production under CORA. Only constituent communications that were made with an expectation of confidentiality may be withheld.
Award of attorney fees and costs to prevailing applicant under CORA
Once it was settled which constituent survey responses the Representatives must produce for inspection and which remained confidential, CRP filed a claim for its attorney fees and costs in this matter. The District Court denied CRP’s motion for attorney fees and costs after finding that: 1) The Representatives’ response to the CORA request was proper with respect to the confidential survey responses; and 2) after considering the relative success of each party in the litigation, CRP was not a “prevailing applicant” within the meaning of 24-72-204 (5), C.R.S. CRP appealed the District Court’s decision to the Court of Appeals.
The Court of Appeals held that a party who obtains disclosure of even one improperly withheld public record after bringing a 24-72-204 (5), C.R.S., action is a prevailing applicant who must be awarded court costs and reasonable attorney fees. Because CRP obtained the right to inspect documents it sought from the Representatives, the Court of Appeals concluded that CRP was a prevailing applicant within the meaning of the statute. The Court of Appeals remanded the matter back to the District Court to determine the amount of costs and fees to award to CRP. (See 2013 Colo. App. LEXIS 821)
The Representatives appealed to the Colorado Supreme Court. The Supreme Court determined that, when construed properly, the statutory provision mandates an award of costs and reasonable attorney fees in favor of any person who applies for and receives an order from the District Court requiring a custodian to permit inspection of a public record. While affirming the Court of Appeals’ decision, the Supreme Court did hold that, in awarding fees and costs to the “prevailing applicant”, it is necessary for the District Court to apportion the fees and costs among the applicant’s successful and unsuccessful efforts. (See 2014 Colo. LEXIS 521) The District Court has not yet taken this matter up again.
As custodians of public records, legislators should realize that a CORA requestor will be entitled to at least a portion of his or her legal fees and costs incurred to obtain just one public record that is improperly withheld from inspection.
If you are a member of the General Assembly and you receive an open records request, please contact the OLLS. For more information on what to do if you are “CORA’d”, please see the previous LegiSource article on CORA.