10/25/06

AP and Colorado Press Association test the Colorado Open Records Act




What's a public record? Statewide survey finds wide variety in what officials are willing to hand over

By JON SARCHE
Associated Press Writer

DENVER (AP) -- Want to know what your local planning commission has been up to? It's easy and free in many places, but be prepared to go through the city attorney's office to get meeting minutes if you happen to live in, say, Sterling.

Curious about how your favorite restaurant did in its last health inspection? In some Colorado counties, just go online and it's all laid out free of charge. Elsewhere, be prepared to fill out a formal request, pay for copies and face a few questions from health department employees.

How about e-mail messages sent between a school superintendent and school board members? Be ready for even more suspicion or even rude treatment. Be patient, too: Many districts send such requests through their staff attorney who will want to know what the information will be used for.

Colorado's public records law is fairly simple. With some exceptions for personnel or proprietary commercial information, the public is entitled to see any record -- on paper or otherwise -- made, maintained or kept by any public entity for use in carrying out its duties or involving the receipt or spending of public money.

Yet the way Colorado local government agencies handle public records requests varies sharply, according to a statewide survey conducted by 23 newspaper members of The Associated Press and Colorado Press Association over the summer.

The results show that obtaining records can be an intimidating and disheartening process for members of the public, said Ed Otte, executive director of the CPA.

"Although this project was organized by the Colorado Press Association and The Associated Press, the intent was to show how easy or difficult it is for the public to access public records," Otte said. "In some situations where there are obstacles to getting copies of records, or the fees seem unusually high, that can serve as a deterrent."

The survey included requests for records in 21 counties from the Western Slope to the eastern Plains. It covered municipal and county agencies, school districts and special districts. To request the records over two days in June, newspapers recruited members of the public, interns and reporters who identified themselves when asked.

In some places, recruits had no problems. Some agencies put restaurant inspections, meeting minutes and other information on the Internet, and others handed over documents without question.

North Metro Fire Rescue in Adams County, for example, provided a copy of a financial audit for free. The Gypsum town manager's office turned over travel expenses, no questions asked and no fee charged.

But some of the requests were met with resistance and suspicion.

Amy Maestas, who checked for records from Durango city and La Plata County agencies, said she had expected some resistance. But she was surprised at the confusion or rudeness demonstrated by officials when she asked for records concerning a day care center and for e-mail messages between the Durango School District 9-R superintendent and board members.

Maestas, who was unemployed at the time she sought records but now is a copy editor for the Durango Herald, said local officials referred her to the state government for the day care center records. The response took three weeks.

"I'm not a parent, but I can certainly understand some level of frustration that parents would go through trying to get their child into day care, needing that information to make such a critical decision," she said. "It seems like that information should be made readily available and that the staffs of child care centers should be able to make that accessible in a timely fashion."

Like many other recruits, she found the most suspicion came from school district officials.

"If I were a parent trying to take a role in my child's education, I'd want the leaders to be more forthcoming and easier to work with," she said.

In Logan County, Marcia Heifner said she was frustrated by the resistance she found.

"It seemed to me like the city of Sterling, they felt like they were trying to protect the holy grail or something," said Heifner, whose husband is editor of the Journal-Advocate newspaper in Sterling. "They weren't really jumping at the chance to be helpful a lot of the time."

Elsewhere, a recruit who asked for e-mail messages between the Steamboat Springs School District superintendent and school board members said she was laughed at before she was peppered with questions: Who are you? Why do you want the messages and what are you going to use them for? The request was eventually routed through the district's attorneys.

There was a similar response at the St. Vrain Valley School District, where the recruit was repeatedly asked why she wanted the information and what she planned to do with it. She was then asked to submit a written request that was then presented to the superintendent and each board member.

Overall, requests for the school e-mails raised the most suspicion, followed by requests for city officials' travel expense reports, requests for traffic accident reports and restaurant inspections.

Agencies can set reasonable rules for handling their records, but the bottom line is that as long as a record is readily available -- generally meaning not in storage or in active use -- it must be made available for inspection immediately, said Tom Kelley and Steve Zansberg, two Denver attorneys who specialize in media law.

Court rulings and a 2001 attorney general's opinion say people asking for public records don't have to identify themselves. And they don't have to tell the agency why they want the information, the attorneys said.

Zansberg said at least one public official has complained that reporters -- who are supposed to have the same access as any member of the public -- engage in a "fishing expedition" by asking for records without explaining why they want it.

"My response is the Open Records Act is a fishing license," Zansberg said. When an official asks a question in these cases, "the appropriate answer either is I'm not going to tell you, or the reason I want them is because the law says I'm entitled to them."

Still, nothing in the law specifically prevents record-keepers from seeking information about who is asking for certain records or why. Many agencies say it helps them determine exactly what records will be most helpful to the person requesting them.

"They certainly can ask the questions, but you're entitled to refuse to answer, and if they refuse to disclose the records, I think they're violating your rights," Kelley said.

In Mesa County, a staff member at the health department, when asked to provide a restaurant inspection report, told the recruit the agency "did not give this information to just anyone," according to the survey. The recruit later learned inspection results can be viewed on the Internet for free.

Some agencies legitimately ask for more information to help narrow the request, said Mark Silverstein, legal director for the American Civil Liberties Union's Colorado chapter.

Others set obstacles that make it difficult to learn about how decisions are made or money is spent, he said.

"There's a tremendous risk that agencies who have something to hide will in fact try to hide the info by making it overly difficult to obtain public records," Silverstein said. "And just as the copying fees can have a chilling effect on the ability of members of the public to review public documents, so too the unnecessary obstacles put in the path of records requesters can also have a chilling effect.

"Some community groups or some interested members of the public might just give up," he said.
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On the Net:
Attorney general's opinion: http://www.ago.state.co.us/agopinions/ago0101.cfm

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How the FOI project was conducted

By The Associated Press

Over the summer, nearly two dozen newspapers set out to test how well the Colorado Open Records Act is working in a project coordinated by members of the Colorado Press Association and The Associated Press. They recruited residents to ask government agencies for a wide variety of what should be public records and recorded the agencies' responses.

Many recruits were local residents, some were newspaper interns and a few were reporters. Recruits were told not to lie or misidentify themselves if asked. If asked whether they were working for a paper, they were told either to say yes or to say it's their own business or that they were simply asking for public information.

Most of the recruits requested the records on June 14-15.

Recruits went to various county and municipal agencies to ask for the county's latest voter-registration roll; meeting minutes from a city or county planning or zoning commission from 2004; e-mail exchanges between a school-district superintendent and school board members from May; travel expense reports for a city manager or equivalent official for the last six months of 2005; an accident report from city police for an accident that occurred in the first week of June; information about a day care or preschool; county health department reports on one restaurant for 2004-06; a 2005 financial audit for a local special district; retirement package for a school district superintendent; and information on whether a contractor for a local project was licensed or bonded.

Participating news organizations are:

-- The Aspen Times
-- Aurora Sentinel
-- Daily Camera, Boulder
-- The Gazette, Colorado Springs
-- Cortez Journal
-- Craig Daily Press
-- The Denver Post
-- Douglas County News-Press
-- Durango Herald
-- Eagle Valley Enterprise
-- Evergreen Canyon Courier
-- Coloradoan, Fort Collins
-- Glenwood Post Independent
-- The Daily Sentinel, Grand Junction
-- Greeley Tribune
-- Leadville Herald Democrat
-- Longmont Daily Times-Call
-- Loveland Daily Reporter-Herald
-- Northglenn-Thornton Sentinel
-- The Pueblo Chieftain
-- Rocky Mountain News
-- Steamboat Pilot & Today
-- Journal-Advocate, Sterling

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A primer on Colorado public records law

By The Associated Press

Some questions and answers about Colorado's Open Records Act:

Q: What government records are the public entitled to inspect under the Open Records Act?
A: With a few specific exceptions, all records made, kept or maintained by government agencies at any level, from the state to counties to municipalities to special districts. Federal agencies are covered by the U.S. Freedom of Information Act. Among exceptions to the state law are proprietary commercial information, personnel files, information from law enforcement investigations, research projects conducted by state institutions, real estate appraisals for property being acquired for public use and certain tax records. Other state and federal laws list other exceptions, such as certain medical records held by the state Department of Public Health and Environment and some records held by the Department of Human Services.

Q: How should people ask for government records?
A: A little homework is necessary to find which agency holds the records, and who within that agency -- the custodian of records -- can make arrangements for inspection. Unless an agency rule requires it, requests do not have to be made in writing.

Q: How are agencies required to respond to open-records requests?
A: If the requested records are not immediately available, the agency has three working days to make it available. If the request is large enough that the agency cannot respond within three days, the agency must notify the requester, and gets an additional seven working days to make the records available.

Q: How much can agencies charge for copies?
A: State law requires that any copying fees be "reasonable," and no more than $1.25 per page unless the actual cost exceeds that amount. The cost for copies of certain records, such as tape recordings or photographs, may be higher. In no case can government agencies profit from copy fees. An agency can choose whether to allow requesters to make their own copies of original documents.

Q: What if the agency refuses to allow inspection of records you believe should be public?
A: You can ask for a written statement explaining the decision. You can ask the agency to reconsider or ask a court to review the decision. If the court determines the agency was wrong to deny access, it must award costs and attorney fees to the applicant. If the court determines the request for records was "frivolous, groundless or vexatious," the agency must be awarded costs and attorney fees. A willful and knowing violation of the Open Records act is a crime punishable by up to 90 days in jail and a fine of up to $100.

Q: What happens if a public record holds some information open to the public and some that is an exception to the Open Records Act?

A: Government agencies generally are not required to redact, or black out, confidential portions of a record, and can legally deny access to the entire record. But records custodians can choose to make redactions, based on the difficulty involved, the amount of confidential information in a document and the risk of accidentally disclosing confidential information.

Q: Am I required to identify myself and why I want the information?
A: No. Under rulings from the state Supreme Court and Court of Appeals, people do not have to answer such questions, and an agency cannot refuse to allow access to a public record based on a person's refusal to answer such questions.

Q: What information is available about government employees?
A: Government employees' personnel files are confidential, but under the law, those files do not include performance ratings, salaries, expense allowances or benefits.

Q: How are criminal justice records treated differently from other government records?
A: The custodian, usually a chief of police or sheriff, has more discretion than a civilian-agency custodian in deciding whether to allow access based on perceived harm to the public interest. As with civilian records, decisions denying access to criminal justice records can be challenged in court.
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Source:
Attorney general's opinion:
http://www.ago.state.co.us/agopinions/ago0101.cfm

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FOI project -- a case study of restaurant inspections

By JON SARCHE
Associated Press Writer

DENVER (AP) -- Getting a hold of a restaurant health inspection report varies widely around Colorado, according to an open records project this summer conducted by member newspapers of The Associated Press and Colorado Press Association.

Some of the state's larger counties post the reports online for anyone to read any time they want. Yet the survey of 21 counties found that even in some of those more populous areas people who asked for reports in person ran into obstacles ranging from copying fees to suspicious employees.

An assistant city attorney in Aspen told one project recruit he couldn't release a report without a more specific purpose than "personal project." Recruits in other counties were asked who they were and why they wanted the reports -- despite court rulings and state guidelines forbidding such questions as a condition of releasing the information.

When a recruit in Douglas County was asked why she wanted the report, she asked if that mattered. The agency official told her it didn't, but the agency likes to track such information.

The state Open Records Act sets a baseline for which records must be made available to members of the public, but agencies can impose their own rules, too. The differences can create a confusing patchwork even for people familiar with the law.

"You can ask for the same document from a number of different agencies, and some will give it to you and some will not," said Mark Silverstein, legal director for the American Civil Liberties Union's Colorado chapter. "My experience is there has been a tremendous variance from public entity to public entity in how requests are processed, how they are dealt with and whether public officials are friendly or unfriendly."

Some agencies believe they are simply custodians of records that belong to the public and try to make access easy, said Steve Zansberg, a Denver attorney who specializes in media law.

"Then we've encountered and continue to encounter a good number of records custodians who have a very different view and use every means possible to erect barriers to discourage public access," he said.

In Routt County, three people in the health department repeatedly asked the recruit who she was and why she wanted the information. They asked her several times if she was a lawyer, the recruit reported.

Ultimately, one of the employees went through the report with the recruit, explaining all the codes and offering to answer further questions by phone.

Some smaller counties rely on the state health department to conduct restaurant inspections. Residents can obtain those reports by filling out an open-records request and e-mailing, faxing or mailing it to the agency's Denver headquarters.

Other counties simply lack the resources to put reports online. Lake County officials said online posting was too expensive, though reports are available at county offices in Leadville.

La Plata County found an unusual solution: For about six months, the San Juan Basin Health Department has published summaries detailing only critical violations -- problems that could cause disease -- in the Durango Herald, county food program manager Jackie Caudill said.

"The public seems to enjoy it," she said. "It's always the talk of the town, at least for a day or two."

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Copies of public records in Colorado can carry big tab

(Fort Collins) Coloradoan
By KEVIN DARST

FORT COLLINS, Colo. (AP) -- For 38 years, Coloradans have had to pay up to $1.25 per page to get copies of public records, the highest allowable rate set by state law in the United States.

Open government advocates say it might be time for Colorado to review a law passed in 1968, before high-speed copiers became commonplace.

"It costs 7 cents (a page) at Kinko's. Not 75 cents, not 50 cents, not $1.25. Seven cents," said Jenny Flanagan, executive director at Colorado Common Cause, a government watchdog group.

A database of state open records laws maintained by the Reporters Committee for Freedom of the Press indicates that most state laws require governments to pass along "reasonable" fees to recover actual costs from those seeking copies of government records. Some states allow agencies to charge customers for staff time to search and copy documents.

Several specify in statutes the maximum allowable charges for duplications, with Colorado's top rate of $1.25 a full 25 percent higher than any other state.

New Mexico limits per-page charges to $1, the closest to Colorado, but unlike Colorado does not allow charges for staff time. Missouri caps copy charges at 10 cents a page but allows agencies to charge for staff time.

Texas has what its officials believe to be the nation's best system. The state in 1995 overhauled public records rules to create a uniform fee schedule that assured customers they would pay the same fee for 10 copies in Texarkana as they do in El Paso.

"We've always aimed for consistency and uniformity," said Tom Kelly, a spokesman for the Texas attorney general's office, which enforces the state's open records laws and can require governments to repay citizens for overcharges.

Under the Texas rules, copies of most public records cost 10 cents a page. Agencies can charge staff time if the number of pages is more than 50.

The law has "a lot of wiggle room" that could allow record keepers to make documents expensive, but it has worked well so far, said Chip Babcock, a First Amendment attorney in Texas.

"It gives you predictability, something you can point to," Babcock said. "It doesn't allow a clerk in a rural county who doesn't like the press just to jack somebody around."

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Open records requests often prompt suspicion

By JON SARCHE
Associated Press Writer

DENVER (AP) -- Ask a city official for minutes from the latest zoning commission meeting and you're likely to get a copy immediately with no questions asked. Ask a county clerk for voter registration rolls and you should have it within hours.

But go to a school district headquarters and ask for the superintendent's retirement package or e-mail messages between the superintendent and school board members and you're likely to be questioned about your identity, why you want the information and what you plan to do with it.

They're all public records and supposed to be available for the asking to anyone, but a survey by Associated Press and Colorado Press Association newspapers around Colorado found that requests for public records raise suspicions in some agencies -- most often in school districts.

District officials said they question people who ask for records to help determine exactly what they are looking for. But they also say their suspicions are well-founded and they have a legal duty to protect children.

"When you are working with people's children, people can get really mean and nasty, so in many ways when someone is asking for information, we want to know what for so we can help them resolve their problems," said Deborah Uroda, spokeswoman for the Durango 9-R district. "We've had experiences in this district where people try to go around people to try to embarrass people. We just want an open and honest dialogue."

Nancy Herbert, spokeswoman for the Saint Vrain Valley School District in Longmont, said she asks people seeking records for identification and contact information, and the reason for the requests.

"I'm simply trying to help the person narrow down what information I can get to them in a streamlined fashion, or even so I can tell them what they need to ask for to get what they need," Herbert said.

Overall, the project survey found that requests for superintendent-board member e-mails raised the most suspicion. Requests for city officials' travel expense reports, for traffic accident reports, for restaurant inspections and for information on a day care or preschool also were met with demands for identification or the reason for the request.

Both Uroda and Herbert said they couldn't deny a records request to somebody who refused to answer their questions, but said that person likely would be asked to fill out a formal open-records request form.

At the Academy School District 20 in Colorado Springs, requests for public records routinely go through the district's attorneys to ensure that no confidential information about children is released, spokeswoman Nanette Anderson said.

"Some requests are for documents that aren't public," she said. "I think people are just trying to err on the side of protecting the students."

Other agencies routinely ask for the name and contact information of people seeking all kinds of records, ranging from restaurant inspections and voter registration rolls to city officials' travel expense reports. Many also ask for the reason behind the request and what will be done with the information.

Nothing in the state Open Records Act prohibits government officials from asking such questions. But people generally can't be denied the information they're seeking just because they don't want to answer, said Tom Kelley, a Denver attorney who specializes in media law.

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Voter rolls costly -- except for candidates

By KATE MARTIN
(Loveland) Daily Reporter-Herald

LOVELAND, Colo. (AP) -- Certified candidates and political parties can get a list of all Larimer County registered voters for free. Everyone else has to pay.

The Reporter-Herald newspaper recently asked the Larimer County Clerk and Recorder's office for an updated voter registration roll. The newspaper staff member was asked for whom she was getting the document, and then the clerk spoke with her supervisor.

The clerk said she needed a written request and that it would take "a few days" to process.

The information, recorded onto a CD, would cost $500.

Asked about the incident, county Clerk and Recorder Scott Doyle said his office is not required to know the names of people obtaining records. Doyle also said there's nothing in the law that prevents him from selling election records; his office basis the cost on a survey of other counties.

He said the policy of giving a list for free to political parties is a policy that was crafted before he was clerk. He expanded it to candidates when he took office.

"I think it's a reasonable thing to do based on moving forward with democracy," he said. "Others who want it are probably interested in it for a mailing list and want it use it for profit."

Doyle said his office charges $500 for the full list of the county's more than 149,000 registered voters; a partial list could cost less, he said. A list of absentee voters can also be had for $100 with weekly updates on who has and has not voted their ballot.

Updating the information is a challenge, Doyle said.

"For the number of voters we have and the amount of work it takes, that's the (price) we put on it," Doyle said.

In nearby Boulder County, a list of more than 207,000 voters costs $50. A voter history file can be bought for another $50, said Patty Stahl, administrative supervisor for elections.

Boulder County also has computer stations at the office, where people can browse voter rolls and voter history files for free, Stahl said.

Political parties receive one copy of each file for free per election. Unaffiliated or third party candidates must purchase copies, she said.

In Weld County, a file of some 98,000 voters costs about $148, said Rudy Santos, the county elections manager. For fewer voter records, the cost is a $50 setup fee plus 1 cent per every 10 records.

"We give it to the political parties for free, and it's up to the candidates to go to the political parties to retrieve the information," Santos said.

He said the department also gives free copies to unaffiliated and third-party candidates "to be fair."

The Larimer County officials keeps a list of the people, towns, organizations or businesses who received copies of the county's voter rolls (59 in the last year). Doyle said he was surprised the office kept a list of who bought the voter rolls. The names were recorded off of checks the groups send in for payment.

Doyle said he thinks some insurance companies buy the voter rolls for mailing lists. The rolls contain information about a voter's address, phone number, year of birth, the districts in which the voter is eligible to vote and which elections a voter participated in.

Major political parties and all candidates receive monthly updated registration lists at no cost.

"Some people call and say 'that's a ridiculous amount of money.' Some people call and say 'Oh my gosh, that's a giveaway, that's free,'" he said.

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Which FOI project questions raised the most suspicion

By The Associated Press

Highlights from the open records survey showing how often agency officials asked for the recruit's name or the reason behind the request (cases in which agency officials did not respond to requests were not figured into the percentages listed):

-- E-MAIL MESSAGES BETWEEN A SCHOOL DISTRICT SUPERINTENDENT AND SCHOOL BOARD MEMBERS: Recruits were asked their names 65 percent of the time and asked why they wanted the information 39 percent of the time.

-- TRAVEL EXPENSE REPORTS FOR A CITY MANAGER OR MAYOR: Recruits were asked their names 54 percent of the time and asked why they wanted the information 17 percent of the time.

-- TRAFFIC ACCIDENT REPORT: Recruits were asked their names 53 percent of the time and asked why they wanted the information 26 percent of the time.

-- RESTAURANT INSPECTION REPORT: Recruits were asked their names 45 percent of the time and asked why they wanted the information 32 percent of the time.

-- LICENSING AND INSPECTION INFORMATION FOR A PRESCHOOL OR DAY CARE CENTER: Recruits were asked their names 55 percent of the time, but none was asked why wanted the information was being sought.

-- FINANCIAL AUDIT FOR A SPECIAL DISTRICT: Recruits were asked their names 39 percent of the time and asked why they wanted the information 35 percent of the time.

-- RETIREMENT PACKAGE FOR A SCHOOL DISTRICT SUPERINTENDENT: Recruits were asked their names 38 percent of the time and asked why they wanted the information 33 percent of the time.

-- VOTER REGISTRATION ROLLS: Recruits were asked their names 17 percent of the time and asked why they wanted the information 22 percent of the time.

-- LOCAL PLANNING OR ZONING COMMISSION MEETING MINUTES: Recruits were asked their names 13 percent of the time and asked why they wanted the information 13 percent of the time.