Appeals court: Aspen woman can get whistle-blower’s identity
A Red Mountain homeowner has prevailed in her legal bid to learn the identity of a person who levied a complaint over a construction project, a decision that could change the way Pitkin County handles whistleblower cases concerning land use.
The Colorado Court of Appeals reversed a March 2014 decision made by Pitkin County District Judge Gail Nichols, who ruled that Elesabeth R. Shook cannot inspect government records revealing the identity of the complainant.
The appellate court’s ruling, made public Thursday, allows Shook to review the records. The order also says the county must pay Shook’s court costs and attorneys fees, which will be determined by the district court.
“Ms. Shook is very happy that the state Court of Appeals found that these are public records and shouldn’t be held from public access,” said Chris Bryan of Garfield & Hecht PC, the Aspen law firm representing Shook. “That’s the spirit of the Colorado Open Records Act.”
The matter will go before county commissioners during a closed session Tuesday, county attorneys said. Commissioners could take the matter to the Colorado Supreme Court, provided the high court is willing to entertain it.
“The county was concerned about the repercussion of releasing this information,” said Laura Makar, assistant county attorney. Makar and Bryan made oral arguments before the appellate court panel in May. “We’re concerned that citizens won’t have the ability to report land-use code violations without possible reprisal against those citizens.”
The appellate decision, should it stand, would effectively nullify the Pitkin County Attorney’s Office policy that keeps confidential the identity of land-use complainants.
Shook sued the Pitkin Board of County Commissioners and its attorney John Ely in March 2013. The lawsuit came after a person complained in August 2012 to the county’s Community Development Department about a construction project on Shook’s property on Willoughby Way, located off Red Mountain Road.
The complaint led to a county investigation, which revealed that Shook hadn’t obtained the required construction permit for a new structure being built. One month later, Shook obtained a permit and the construction resumed.
Shook’s suit, filed under the Colorado Open Records Act, argued that she should be allowed to see the complainant’s identity. The complainant asked the county to keep it under wraps.
Siding with Pitkin County, Nichols’ ruling stated that the Open Records Act precluded the release of the complainant’s identity because it would be “contrary to public interest.”
Nichols also wrote that “Shook, the evidence shows, intended to retaliate against the complainant. This again highlights a reason not to require the disclosure of the complainant’s identity.”
Nichols also wrote that the Open Records Act protects information that is part of a criminal investigation by a sheriff, police department or prosecuting attorney.
The Court of Appeals, however, disagreed with that premise.
“Nothing in the record before us suggests the county attorney investigated Shook’s violation of the land-use code with an eye toward future criminal prosecution,” the ruling says.
Rather, the county’s methods in enforcing the land-use code are “relegated to civil enforcement,” the ruling says.
“In sum, the district court erred in finding that the records were of investigations conducted by a prosecuting attorney and that they were investigatory files compiled for a criminal law enforcement purpose,” the ruling says.
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