Judge dismisses Basalt lawsuit over open records request | AspenTimes.com

Judge dismisses Basalt lawsuit over open records request

Scott Condon
The Aspen Times

An Eagle County district judge dismissed a lawsuit Tuesday that was filed by the town of Basalt against a citizen who requested information in April under the Colorado Open Records Act.

Both sides wanted the lawsuit dismissed, although citizen Mary Kenyon hoped to have a hearing that would produce answers to her questions about why the lawsuit was filed. Judge Fred Gannett denied her request for that hearing.

Gannett left open the question of whether or not Kenyon could recover expenses and fees she incurred in defending herself in the suit. It was unclear how that issue will be resolved.

Kenyon welcomed the judge’s decision. “It never should have been filed in the first place,” she said. “That was my contention all along.”

Kenyon filed open records requests for the text messages exchanged between Mayor Jacque Whitsitt and Town Clerk Pam Schilling between March 15 and April 12 — before, during and after the April 5 election.

Kenyon contends the municipal election wasn’t handled properly. She wanted the text exchanges between Whitsitt and Schilling to see if improper information was exchanged.

The town filed a lawsuit against Kenyon April 29 because Town Attorney Tom Smith contends it is unclear if text messages are subject to the Colorado Open Records Act. The cell phone service provider couldn’t produce the substance of the texts, so the issue became “moot,” Smith said Tuesday. Therefore, the town filed for voluntary dismissal of the lawsuit. The provider was able to determine there were 120 text exchanges between Whitsitt and Schilling over that period. Whitsitt previously said they involved “mechanics” of the election, such as poll watcher rules.

Kenyon had requested a hearing, in part to ask the judge to listen to a recording of an executive session held by Smith and the council prior to filing of the lawsuit. She said in a court filing that the recording would disclose the true reasons the town was filing the lawsuit. That reason, she said, was to intimidate her and other people filing open records requests.

Kenyon said the town ended up spending $12,000 paying Smith for issues related to the lawsuit. She asked if that was responsible use of taxpayer funds.

“He filed the suit to pay himself,” Kenyon said. “Nobody wins but him.”

Smith responded that the money was spent responding to numerous requests made by Kenyon in addition to the lawsuit. When legal issues are raised, he said, it requires “time, money and effort” to address them.

“The lawsuit was a response to her request,” Smith said.

While the lawsuit won’t settle whether or not texts are records the town must retain and make available, Smith said the town is looking into a policy to retain texts so there isn’t a question in the future. The proposed policy isn’t ready for the council review yet, he said.

Eagle County District Attorney Bruce Brown is also looking into possible criminal violations of the open records act by Whitsitt and Schilling, at the request of Kenyon. He interviewed Whitsitt, Schilling and Town Manager Mike Scanlon in June. Brown hasn’t discussed his investigation at length.