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Home / Articles / News / News /  Transparency trouble
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Thursday, February 14,2013

Transparency trouble

Boulder officials increasingly resistant to coughing up open records

By Jefferson Dodge and Steve Weishampel

The city of Boulder seems to have joined a growing number of government agencies in Colorado that have started charging more for — and taking more time to produce — public documents when faced with open records requests.

Attorneys and activists alike are crying foul, suggesting that the disturbing new trend is not only legally questionable, but appears to be an attempt to discourage media outlets and citizens alike from peering too deeply into taxpayer-funded activities.

In the case of the city of Boulder, Boulder Weekly has documented numerous cases in which open records requests — filed both by the newspaper and local citizens — have either been denied or met with demands for hundreds of dollars and wait times exceeding what is allowed by state law.

* * * *

The text of the Colorado Open Records Act reads: “The date and hour set for the inspection of records not readily available at the time of the request shall be within a reasonable time after the request. … A ‘reasonable time’ shall be presumed to be three working days or less. Such period may be extended if extenuating circumstances exist. However, such period of extension shall not exceed seven working days.”

In other words, public entities have a window of three days to allow requesters to see records. But Boulder’s approach does not appear to fit within the law. Of the roughly 20 open records requests reviewed by BW, only one received a response that fell within the law’s “reasonable time”: a case where an official told a citizen the requested records didn’t exist. Other than that instance, Boulder has always given itself an extension.

Boulder Communications Manager Sarah Huntley told BW that CORA gives custodians “between three and seven working days (depending on a variety of factors) to respond to a records request. That response acknowledges receipt of the request, but does not have to include production of the records themselves.”

But the law says the records, not just a response, should be produced within three days. CORA says inspection of records should take place within “three working days or less” unless the materials are “in active use, in storage or otherwise not readily available” at the time.

“All you need to do is read the statute,” says Denver attorney Steve Zansberg, an expert on media law who works for Levine Sullivan Koch & Schulz and represents members of the Colorado Press Association. “Records custodians are always saying that they have three days to respond to a records request by telling you whether they’re going to produce the records or not, and that’s not true. Nobody goes to court and challenges what is called the three day rule, but if you read the statute, it very clearly says records are to be provided ‘forthwith,’ meaning immediately, upon receipt.

“They don’t get to say, ‘Come back in three days and we’ll give you this record that is behind me on this shelf here,’” Zansberg adds. “It has been the erroneous assumption among records custodians for quite some time that they have three days to provide access to any record, even if it’s readily available. We have tried, through our press entities, to educate records custodians that that’s not what the statute says.”

Boulder’s practice, instead, seems to be to respond to a request on the third day and tell the requester it’ll be about another week before the city produces the records.

And the city’s written response appears to be phrased the same way every time. BW compared CORA responses sent by multiple city employees and received by multiple requesters, and it’s clear city staff have a form letter they use to respond to CORA requests. City employees’ responses seem to be virtually identical, with only dates and estimated costs changed.

This form letter uses paragraphs taken directly from the law to justify delaying providing information. In the letter, city employees claim every CORA request is “a broadly stated one that encompasses all or substantially all of a large category of records, without sufficient specificity to allow me, as custodian, reasonably to prepare or gather the records within three business days.”

That text is copied from a provision in CORA allowing an extension beyond three days, which the law calls “extenuating circumstances,” but which Boulder appears to apply in every situation. And responses include the “without sufficient specificity” line even when specific dates, names, search terms and agencies are listed by the requester.

* * * *

In all but one request BW examined, Boulder wanted money. The Colorado Court of Appeals ruled in the CORA-related 2003 case Black v. South West Water Conservancy District that public entities can charge for research, particularly if the request is “voluminous,” a term never defined in the ruling. The case established that “nominal” fees can be charged to search “voluminous” records.

In other words, explains Zansberg, a government agency (other than law enforcement agencies, which can charge its complete expenses incurred while producing criminal records) can only charge for staff time spent on search and retrieval if it is a voluminous request, but even then the amount charged should be a small percentage of the actual cost, or “trifling, especially as compared to what would be expected,” as it is defined in Black.

“It is increasingly the case that governmental entities are increasing the practice of trying to pass on the costs of retrieval and copying to records requesters, despite the fact that the statute does not provide for anything other than nominal search and retrieval fees,” Zansberg says. “They should not be passing through the actual cost of search and retrieval. That is not allowed under the law.”

Geoff Wilson, general counsel for the Colorado Municipal League, declined to comment specifically on Boulder’s practices, since the city is a member of his organization. But he told BW that he interprets the Black case as permitting search and retrieval fees for two tiers: voluminous and non-voluminous. He also says that since Boulder is a home-rule city, its ordinances take precedence over state law when there is a conflict between the two. While CORA conflicts with home-rule ordinances have never been adjudicated, Wilson says, open records could be an area in which Boulder decides to exert its local control and diverge from state law. But the city’s public records policy states that it is in accordance with CORA.

Emails indicate that the city’s form letter appears to have originated from the office of City Attorney Tom Carr.

As BW reported after Carr was hired in 2010, the former Seattle city attorney arrived with a reputation for shielding government records from the public.

According to a 2010 BW piece by a Washington-based journalist who had covered Carr for a number of years, when he was in Seattle Carr took actions that kept police-misconduct information from going public and fought to withhold public documents all the way up to the state’s supreme court. Carr reportedly subpoenaed three reporters from The Seattle Times to name their confidential sources in court, then backed off after the newspaper argued journalists have a legal shield from requests for private information.

Carr and Huntley referred requests for comment on the city’s open records practices to Senior Assistant City Attorney Clay Douglas, who was not available for a phone interview with BW before press time.

When BW asked for a copy of the city’s boilerplate CORA response form letter a couple of weeks ago, Huntley referred the paper to the city attorney’s office, even though the city’s public records policy says the city clerk is the official custodian of centrally maintained records.

At that time, Douglas acknowledged via email that there is “a template for responses to open records requests” but said it was “privileged attorney-client communication.”

“It contains City Attorney’s legal advice to City of Boulder officers and employees on responding to record requests,” Douglas wrote in an email. “We will withhold that record under applicable mandatory nondisclosure provisions.”

BW, of course, already has at least six copies of it, in the form of written responses to open records requests.

* * * *

Boulder resident Mark Gelband is no stranger to CORA. His experience with open records illustrates the city’s policy and could shine light on the reasons behind it.

BW documented Gelband’s home construction obstacles in a Dec. 6 article. In a related issue, he’s been battling the city over multiple open records requests he filed since he started suspecting neighbors of getting beneficial treatment from city staff.

Between October and the end of November, Gelband filed 18 open records requests with various departments in city government, Huntley says. The city wants $2,975, $165 on average, to complete the searches. Gelband has only paid a portion, and most of his requests are in limbo.

In an email, Huntley appears to tell BW that the steep price tag or Boulder’s slow responses — or both — are on purpose. She says CORA “sets guidelines and limitations to balance any one individual’s ability to monopolize a government employee’s time or utilize taxpayer money to further a personal or business interest.”

Boulder can charge nominal fees and take up to 10 days for large requests, Zansberg says. But Huntley’s reasons for “balancing” one individual’s requests don’t appear in the text of CORA.

Gelband is not alone. There are dozens of similar stories locally and around the state, such as the time Carol Affleck of the Valmont School District No. 4 Cemetery Association asked the city for documents about the cleanup at Valmont Butte and was slapped with a bill for more than $1,000. Members of the

Rocky Mountain Peace and Justice Center say past requests for documents from the city are, in some cases, simply ignored.

And it’s not limited to the city of Boulder. Election integrity activist Marilyn Marks of The Citizen Center says the Boulder County attorneys’ office wanted to charge her almost $500 for digital files of ballots the St. Vrain Valley School District sent to the printer for the 2012 election. She says another election integrity activist, Jim August, was told it would cost him $7,500 to obtain documents regarding the testing of controversial signature capture/verification equipment in the clerk and recorder’s office.

And beyond Boulder County’s boundaries, Marks says Elizabeth Milias of Aspen requested two deeds to city housing property and received a bill for $974, primarily because an attorney who gets paid $475 an hour would be spending 1.7 hours on the request.

Meanwhile, cities and towns in Colorado are increasing what they charge for open records. The city of Colorado Springs recently began charging $20 an hour to fulfill records requests. The city of Boulder generally charges $35 an hour.

* * * *

One state legislator took a shot at clearing the air on CORA. Unfortunately, he had to bail on the attempt. State Rep. Joe Salazar, D-Thornton, withdrew a bill this year that would have revised CORA with two purposes in mind: to allow greater access to records, and to ensure that citizens were following through and paying for records they requested.

“What I’d heard from various municipalities and public entities was that they would get these CORA requests from somebody out in the public that would require substantial time to fulfill, and then they’d have the documents ready for the person to pick up, and they never show up,” he says.

The city of Boulder requires payment before any research starts, which avoids this scenario. Salazar says he’d put an end to charging the full amount up front.

“I would look to change that,” he says. “We heard from the [Colorado] Press Association that they’re asked to pay up front, and lo and behold, the amount of time it took to fulfill the CORA request matches the amount of money that was asked to be put up front. And there really is no justification by the public entity on the amount of time actually spent to fulfill the CORA request.”

As for high costs, Salazar says he’s heard horror stories — and seen documentation of them.

“I have tons of people who have emailed me their CORA requests and then the response from the public entity, where the public entity — just on its face, the public entity was trying to make a profit off of the CORA request,” he says, “charging more money to respond to the request than what the employee makes who is responding to the request.”

Again, Zansberg says public entities can’t pass through their full costs.

Salazar cites a few eye-popping numbers, like seeing $76 an hour for an electronic records search and $190 an hour “if the city attorney happens to review the CORA request” in Salida, which charges even more — $275 an hour — for the water attorney’s time.

“The only reason they would want to charge you,” Salazar says, “is A, to penalize you for filing a CORA request or B, to gain a profit off of it.”

Salazar says he withdrew the legislation after a “firestorm” over the language of the bill, and he plans to submit a revised version next year.

“Right now there is no cap on what people can charge,” he says. “That is the bottom line. That’s why you see some cities charging $190 an hour, that’s why you see others don’t charge anything at all. … This is supposed to bring some standardization.”

He says if entities want to continue not charging, they’d be able to do so under his proposal.

* * * *

Luis Toro, director of Colorado Ethics Watch, says the defensive, nontransparent approach being taken by government agencies when it comes to open records requests is troubling. He notes that Colorado got an “F” in access to public records in the State Integrity Investigation (www.stateintegrity.org).

Part of the problem, he says, is that in Colorado the only way to enforce CORA is to file a lawsuit and prevail in court against government attorneys. Sure, you might get your attorneys’ fees back in the end if you win, but government agencies are banking on the fact that individuals and newspapers won’t have the resources to pay up front for a lawsuit.

“Government entities can feel secure they can get away with a lot of stuff, especially if they perceive you don’t have a lawyer. If it’s just ordinary citizens not familiar with the ins and outs of open records law, they’ll often get pushed around because the city knows the only recourse is to find a lawyer and take you to court,” Toro says. “Sooner or later it’s going to be legally challenged.”

He says that HB 1041, the bill currently making its way through the state legislature that would prohibit government agencies from charging fees for records transmitted via email, has bogged down in part because some — including Marks — fear it opens the door to additional costs in other areas.

Toro says that as public agencies have started operating on tighter and tighter budgets — especially under the restrictions of Colorado’s Taxpayer’s Bill of Rights — they have started leaning more heavily on fees to keep them afloat.

But when it comes to open records, he says, their approach seems to be “you can have transparency if you can afford it, and that’s contrary to democracy.

“If the citizens can’t have free access to information about their government, how are we supposed to make educated decisions about what they’re doing?” Toro asks. “They get angry when people send them document requests, and kind of treat requesters as the enemy instead of the public, and they want to shift the cost onto the citizen, who is trying to exercise their right to know what the government is doing.”

Respond: letters@boulderweekly.com

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