Basalt sues woman over open records request

Scott Condon
The Aspen Times

A resident who filed a request with the Basalt government under the Colorado Open Records Act has been sued by the town.

The town filed a complaint for declaratory judgment in Eagle County District Court on Friday asking a judge to determine if it must provide the texts requested by resident Mary Kenyon and, if so, if it can charge her retrieval fees.

Kenyon said she was served with the lawsuit Sunday afternoon while she was hanging out on her deck with her dog. The town government’s action surprised her because six days earlier, on April 25, she was told the town would comply.

Kenyon made a formal request to the town April 18 for all emails and texts between Town Clerk Pam Schilling and Mayor Jacque Whitsitt between March 15 and April 12. She wants to know what they discussed during a heated election that Schilling was overseeing. She alleges that the election procedures were flawed.

“I don’t know what happened in that executive session but a lot happened as a result of that executive session.”Mary Kenyon, residents facing lawsuit

Kenyon received the emails but Schilling informed her that she deleted the texts. Schilling contacted Verizon to try to retrieve them and was told she would have to speak to the legal department and possibly provide a court order.

Kenyon kept pressing the town to retrieve the emails and maintained that failure to do so in a timely manner would constitute a violation of the Colorado Open Records Act, also known as CORA.

Town Attorney Tom Smith responded with an email to Kenyon on April 25 that said, “There is no CORA violation. The text messages will be retrieved and provided to you.”

Change in direction

Instead, the town government is now using taxpayer funds to pay its contract attorney to file a lawsuit against a citizen requesting records about official town business, Kenyon said. Kenyon practiced law in Michigan earlier in her career and plans to answer the lawsuit, but she feels it is unjust.

“I represent the citizens of the town of Basalt,” she said.

Kenyon said the Town Council held an executive session with Smith on April 26. She has filed a formal request with the town to preserve the record of that session, held in private. She may ask a judge to review the record to determine if there was a violation of the open meetings law, in case the council approved the lawsuit.

“I don’t know what happened in that executive session but a lot happened as a result of that executive session,” she said.

Town raises four issues

The town’s complaint said Schilling turned over all valid public record emails to Kenyon on April 20 within the three-day period specified by CORA, and she explained that the texts were deleted. The lawsuit said Kenyon “accused Schilling of a violation of CORA and of willful and wanton conduct. She threatened Schilling with a criminal investigation and a civil lawsuit.”

The suit contends that Schilling is unable to determine if the requested text messages are public records subject to disclosure under CORA “because CORA is silent as to text messages and there is no judicial precedent in Colorado on this issue.”

The suit has four specific requests for declaratory judgment: determination if the texts are subject to disclose; determination that Schilling was unable to comply with the time limits of CORA because of a “physical impossibility” and that she shouldn’t be sanctioned; determination that Schilling should be given “reasonable time” to pursue the records from Verizon, if they are found open to disclosure; and determination that Kenyon can be charged the actual cost of responding to the request.

Whitsitt: “Let’s fork it over”

Denver attorney Thomas Kelley, an expert on open records issues and a frequent adviser to newspapers in Colorado, said Colorado law has established that texts used to conduct government business are part of the public record. In addition, governments are required to save texts for a specified amount of time as laid out in the Colorado Records Retention Schedule, he said.

Kelley said he believes the town filed the lawsuit rather than risk that Kenyon would file one for the town’s failure to produce records in a timely manner.

“It’s a race to the courthouse,” he said.

By filing the complaint for declaratory judgment, the town limits some liability.

“It’s a way of avoiding paying attorney’s fees if they lose,” Kelley said.

Smith couldn’t be reached for comment Monday. When Whitsitt was asked if she has a problem with the campaign-season texts between her and Schilling being turned over, she responded, “Hell, no.”

“There’s nothing there, so let’s find the stuff and fork it over,” she said.