A RESPONSE TO RECENT ARTICLES ABOUT CCDC'S ENFORCEMENT OF OPEN RECORDS ACT REQUEST:

Submitted by Kevin Williams on May 31, 2013 - 5:05pm

A RESPONSE TO RECENT ARTICLES ABOUT CCDC'S ENFORCEMENT OF OPEN RECORDS ACT REQUEST:

 

Open records fight could cost Conejos sheriff, Valley Courier, Alamosa, published May 23, 2013

 

Disabilities group sues over open records request, KOAA.com, serving Colorado Springs and Pueblo, published May 27, 2013

 

These two articles discuss CCDC’s recent enforcement actions concerning open records act requests made to county Sheriff’s offices.  As the Valley Courier article says, as a result of deaf individuals’ complaints to CCDC about law enforcement officials depriving them of access to sign language interpreters during arrests and incarcerations, CCDC sent open records requests to Sheriff’s Offices in nearly every county in Colorado.  The purpose of those requests was to determine whether those law enforcement officials had policies, practices and procedures in place to provide appropriate effective communication services to deaf individuals.  See Open Records Act Investigation of all Colorado County Sheriffs' Auxiliary Aids and Services Policies.  Under the ADA, all public entities like Sheriff’s offices “shall take appropriate steps to ensure that communications with applicants, participants, members of the public, and companions with disabilities are as effective as communications with others.”

[1]

  They are supposed to provide appropriate auxiliary aids and services, including qualified sign language interpreters, if needed, to provide effective communication.

[2]

  They are required to provide information to deaf individuals about the availability of sign language interpreters and they “shall give primary consideration to the requests of individuals with disabilities.”

[3]

  These records requests have demonstrated few Sheriff’s Offices have taken the appropriate steps to ensure they will offer and provide sign language interpreters and other auxiliary aids and services if needed.  CCDC has already brought three lawsuits against Sheriff’s Offices for failure to provide needed auxiliary aids and services to deaf arrestees and detainees.  See Adams County, Arapahoe County, and Jefferson County.  In each case, CCDC alleged the Sheriff’s offices failed to take steps necessary to provide appropriate auxiliary aids and services, like sign language interpreters, to deaf persons who were arrested, locked up in jail, or interrogated by Sheriff’s deputies.

 

Civil rights enforcement often requires obtaining information from government records that tell whether the entity has complied with the law.  The Colorado Open Records Act ("CORA") and the Colorado Criminal Justice Records Act ("CCJRA") require that public records are made available upon request.  According to the CORA, “It is declared to be the public policy of this state that all public records shall be open for inspection by any person at reasonable times.”

[4]

  When a government entity refuses to comply and withholds records, the involvement of lawyers becomes necessary because legal action is needed to enforce the request.  This can take a great deal of time away from the civil rights work that CCDC's Legal Program attorneys are entrusted to do.  Nevertheless, enforcement is critical because CCDC’s lawyers, advocates and members need the records to investigate potential cases and to serve our clients’ interests.  If a records custodian refuses to provide the records or delays unreasonably in responding or providing the records, the person seeking the records "shall file a written notice with the custodian who has denied the right to inspect the record informing said custodian that the person intends to file an application with the district court."

[5]

 The lawyer for the person requesting the records must then file the application with the court.  The court is required to hold a hearing "at the earliest practical time."

[6]

 All of this requires quick and time consuming action by lawyers.  

 

The ADA requires that public entities like Sheriff’s Offices keep certain records that inform persons, “including persons with impaired vision or hearing” about what services are available; this information must be made available to “interested persons.”

[7]

  The open records laws serve the purpose of making government records open to the public and making government activities transparent.  Therefore, there is a penalty for wrongfully withholding records.  "Unless the court finds that the denial of the right of inspection was proper, it shall order the custodian to permit such inspection and shall award court costs and reasonable attorney fees to the prevailing applicant in an amount to be determined by the court."

[8]

  Far from being a "a single-minded attempt to exact tens of thousands of dollars from the [records custodians],"

[9]

the Legal Program's efforts at enforcement pursuant to the CORA and CCJRA are consistent with CCDC’s mission and purpose and are necessary to punish and deter those who wrongfully withhold or unreasonably delay in providing public records from doing so again.  These laws allow for recovery of reasonable attorneys' fees and costs -- that is payment for the time reasonably spent enforcing the request.  

 

Colorado appellate court decisions make clear that if a records custodian improperly withholds records, the court is empowered to remedy the situation.

[10]

  Withholding of records is an improper denial of public records, which entitles the person seeking the record to recover attorneys' fees unless the records are excepted from disclosure by the statutes.  "If a document was withheld that was not subject to an exception, the prevailing applicant may be entitled to court costs and reasonable attorney fees as determined by the court."

[11]

  If the records custodian does not put up a fight and provides the public records, there is no cost to the records custodian at all.  On the other hand, if the records custodian wrongfully withholds records or unreasonably delays and then resists payment of fees and costs, it can be costly for the records custodian.

 

The Conejos County Sheriff case is a good example of a records custodian who refused to provide records requested or even respond to a records request until CCDC’s Legal Program was forced to get involved and file an application with the Conejos County District Court.  There are undisputed facts in the case.  Even after serving the Sheriff both by mail and by a process server with the notice of the hearing, the Sheriff's Office failed to respond.  Some of the facts of the Sheriff's refusal to respond are set forth in the Valley Courier article.  

 

According to a stipulation between the two parties, coalition attorney Andrew Montoya’s group first contacted the sheriff’s office via certified mail in January 2012. At the time, the CCDC formally asked the department for information about the services it offers deaf or hearing-impaired detainees and inmates.

 

Likewise, neither side disputes the fact that the sheriff’s office did not reply to a second notice. 

 

It wasn’t until a 12th Judicial District judge held a brief May 2012 hearing on the case that the group finally received the information it was seeking. 

 

CCDC sent the request in January of 2012. The Sheriff received the request.  The Sheriff never responded.  As is required under the statute, prior to filing the application to show cause why the Sheriff should not permit inspection of the records with the Conejos County District Court, in March of 2012, CCDC provided notice to the Sheriff of its intent to do so.  The Sheriff received the notice.  The Sheriff never responded.  The Sheriff never said, “The documents are available.”  The Sheriff has never provided any reason or excuse for not turning over the records, even though there are pages and pages of exceptions and reasons why a records custodian may withhold records under both the CORA and CCJRA.  The Sheriff simply ignored the requests.  If the Sheriff’s Office had withheld records for one of the exceptions, it was obligated to tell CCDC within a week or so of receiving the request.

[12]

 It did not do so.  Therefore, on April 25, 2012, CCDC filed an Application to Show Cause Why the Conejos County Sheriff’s Office Should Not Permit Inspection of Records Requested.  The Court set a hearing on the Application for May 16, 2012.  CCDC's Legal Program prepared for and attended the required hearing in the Conejos County District Court.  The Sheriff came to the hearing and provided CCDC's lawyer with records responsive to the request.  Again the Sheriff's Office provided no reason or excuse for why for four month it did not make available records that were clearly responsive to the requests, or why it waited to provide the records until CCDC's attorneys were required to get involved, draft legal documents and prepare for and attend hearings.  

 

CCDC has argued since this case began that some of the records sought were subject to the CORA and some were subject to the CCJRA.  Both statutes require making certain public records available.

[13]

  Both statutes require providing notice to the requestor if the custodian believes the requested records are not “public records,” or if the custodian believes an exception applies or if the custodian believes the records are in someone else’s possession .

[14]

  The Sheriff simply failed to respond at all.

 

CCDC rightfully requested the Court award reasonable fees and costs.  At the May 2012 hearing, the Court ordered CCDC to submit a petition for fees and costs to the Court, and ordered that if the Sheriff’s Office did not agree with CCDC’s request for fees, it should inform the County Attorney to file a response thirty days later.  After spending additional time researching and drafting, CCDC’s counsel filed that petition and served it on the Sheriff.  Thirty days passed, and the Sheriff, once again, failed to respond.  As a result, CCDC’s attorneys researched, drafted and filed a motion for entry of a default judgment.  CCDC served that motion on the Sheriff.  The Sheriff failed to respond to that motion.  Therefore, CCDC moved for a default judgment against the Sheriff. 

 

Then, on August 21, 2012, Stéphane Atencio, the attorney representing the Conejos County Sheriff’s Office, entered an appearance and filed responses to CCDC’s motion for default judgment and motion for fees and costs.  Filing replies to these responses required further attorney time for CCDC.  Because the Sheriff’s counsel had entered an appearance and responded, the Court denied the motion for default judgmentThe Court also denied the motion for attorneys’ fees and costs stating that the Court had not yet made a “final determination.”  The Court set the case for a hearing.

 

 

Because it was clear from the briefs submitted by the Sheriff’s counsel that the Sheriff did not deny failing to respond to CCDC’s records requests and withheld responsive records for many months, CCDC’s counsel researched, drafted and filed a motion summary judgment.  The Court ultimately denied CCDC’s motions and set the matter for another hearing.  CCDC’s counsel prepared for and attended that hearing, which occurred on May 17, 2013 in the Alamosa County District Courthouse in Alamosa, Colorado.  At that hearing, CCDC’s counsel presented argument and evidence of the Sheriff’s wrongful withholding of the responsive records.  The Sheriff testified, and his attorney presented argument.  At no time did the Sheriff’s Office contradict that it had documents responsive to CCDC’s requests and that it simply did not respond to CCDC or communicate with CCDC between January and the May hearing.  When Mr. Montoya cross-examined the Sheriff, he asked, “[A]fter receiving CCDC’s request letter, did you or any member of your staff contact CCDC to notify them that you were actively gathering records?”  The Sheriff responded, “I—I was not required to, so no I did not notify you.”  At the conclusion of the hearing, the Court ordered the parties to submit proposed findings of fact in a written order for the Court. 

 

Long after January 24, 2012, when CCDC sent its records request, CCDC’s legal team continues to spend time on this matter because the Sheriff’s Department refuses to pay reasonable fees and costs. Despite the fact that it admits it did not respond to CCDC’s requests for months and despite the fact that it had responsive documents in its possession.

 

In the Valley Courier  article, the Sheriff’s lawyer is quoted as saying, “It should be noted that Plaintiff has not alleged that it went to the Conejos County Sheriff’s Office for the purpose of inspecting the requested records and was denied access to same.”  That is true.  What CCDC alleges, and is not contested, is that CCDC sent the notice requesting public records, and the Sheriff’s Office never responded.  It did not make sense for CCDC representatives to show up at the Sheriff’s Office to inspect records unless and until the Sheriff’s Office said it had responsive documents available.

[15]

 

The way for any governmental entity to avoid paying fees is to produce the requested records in a timely fashion, as required under the open records laws.  The Sheriff wrongfully withheld responsive records without any reason, and without any notice to CCDC whatsoever.

 

To the extent the Sheriff’s attorney or the articles’ authors intend to characterize enforcement of the fees and costs issue as being only about getting money, they are, in part, correct.  Recovering payment for all of the hours the Sheriff made CCDC spend on enforcement is compensable and should be.  More importantly, though, is that cases like this one focus attention on the obligation to comply with Colorado’s open records laws.  The public is entitled to inspect these records.  Ignoring requests leads inevitably to attorney involvement.  In this case, over a year after CCDC sent its request, its attorneys still must spend time on this case.

 




               

[1]

         28 C.F.R. § 35.160(a)(1).

 

               

[2]

        28 C.F.R. § 35.160(b)(1).

 

               

[3]

        28 C.F.R. § 35.163(a).

               

[4]

         24 Colo. Rev. Stat. § 24-72-201.

 

               

[5]

        24 Colo. Rev. Stat. § 24-72-204(5).

 

               

[6]

        Id.

 

               

[7]

        28 C.F.R. § 35.163.

 

               

[8]

        Id.

 

               

[9]

        Statement attributed to Conejos County Sheriff’s counsel Stéphane Atencio.

         

[10]

        Wick Communications Co. v. Montrose County Bd. of County Commissioners, 81 P.3d 360, 363 (Colo. 2003).

 

           

[11]

       Sierra Club v. Billingsley, 166 P.3d 309, 316 (Colo. Ct. App. 2007) (citing Colo. Rev.  Stat.§ 24–72–204(5)); Colorado Republican Party v. Benefield, No. 10CA2327, 2011 WL 5436483 (Colo. Ct. App. Nov. 10, 2011) cert. granted, 11SC935, 2012 WL 4478961 (Colo. Sept. 24, 2012).   The issue of whether the court of appeals erred in ruling that, under the Colorado Open Records Act, if a court orders the inspection of even one improperly withheld public record, the requesting party is a prevailing applicant entitled to attorneys' fees and costs is pending before the Colorado Supreme Court and has not yet been decided.  Benefield v. Colorado Republican Party, No. 11SC935, 2012 WL 4478961 (Colo. Sept. 24, 2012).

               

[12]

             See, e.g., Colo. Rev. Stat. § 24-72-203(3)(b).

 

               

[13]

             Colo. Rev. Stat. § 24-72-203 (Public records open to inspection); Colo. Rev. Stat. § 24-72-303 (Records of official actions required--open to inspection) and § 24-72-304 (Inspection of criminal justice records).

 

               

[14]

       See, e.g., Colo. Rev. Stat. § 24-72-204(4) (if Sheriff denies access, requester may request statement of grounds, which shall cite the law or regulation under which access is denied); Colo. Rev Stat. § 24-72-304(3) (if the requested records are in someone else’s custody or control, Sheriff must “forthwith” notify requester).

               

[15]

       The trip from Denver to Conejos is 260 miles one way and takes approximately four hours and fifteen minutes one way to get there.

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