Basalt denies request for investigation report
November 30, 2012
BASALT – The town of Basalt this week denied requests by The Aspen Times to provide an investigation report into the conduct of former Police Chief Roderick O’Connor or the settlement approved as part of his resignation.
The newspaper made the requests through the Colorado Open Records Act. Town Attorney Tom Smith said in a written reply that the town denied the requests based on three provisions of the Colorado Revised Statutes pertaining to government personnel matters and because of an agreement with O’Connor.
The town hired the Mountain States Employers’ Council to conduct a third-party, impartial investigation of a complaint against O’Connor in October.
“The report is part of Roderick O’Connor’s personnel file, as to which he has a legitimate expectation of privacy, and it is exempt from disclosure pursuant to” a specific part of the Colorado Revised Statutes, Smith wrote.
In addition, the report is exempt from disclosure because releasing it “would do injury to the public interest,” Smith wrote, citing another section of the revised statutes.
As part of the settlement between the town and O’Connor, both sides agreed no part of his personnel file would be made available to the public, including the investigation report.
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“The Town of Basalt and Roderick O’Connor have entered into an enforceable confidential agreement which provides for the confidentiality of the report,” Smith wrote.
The Aspen Times consulted on the town’s response with Steve Zansberg, a Denver attorney for the Colorado Press Association who specializes in open-records litigation. Zansberg also occasionally represents The Aspen Times.
He said the town’s stated grounds for refusing to disclose the report are not consistent with prior judicial rulings.
“Numerous courts have held that police officers – much less the chief of the department – enjoy no reasonable expectation of privacy with respect to investigations into how they discharge their official duties, so such files are not considered ‘personnel files’ under the statute,” Zansberg wrote in an email to the Times. “Indeed, in 2009 Colorado’s Supreme Court directed custodians of completed internal affairs reports to redact them ‘sparingly’ to release as much information to the public as possible.”
Zansberg also pointed to a Court of Appeals ruling issued last year that recognized that the public interest was served by gaining speedy access to an investigation file that examined a police officer’s official conduct and that led to his resignation from the police force in Fountain.
Regarding the confidentiality pact signed by the town and O’Connor, Zansberg said the Colorado Court of Appeals had repeatedly held “an agreement by a government entity that information in public records will remain confidential is insufficient to transform a public record into a private one.”
Ryan Slabaugh, co-manager of The Aspen Times, said the newspaper is weighing its options.
“At this time, we have requested in writing what we feel the public has the right to know and have been told ‘no.’ While that is discouraging, it’s not that surprising or unusual in these circumstances,” Slabaugh said. “Ultimately, we are still consulting with our attorneys about state open-records laws, and we will make a decision soon about what types of action to pursue if any.”