Pitkin County, City of Aspen handle confidential tips differently
When a local resident reported illegal construction activity to Pitkin County officials in August 2012, he asked them to keep his name confidential, which it has been for nearly three years.
But a recent Colorado Court of Appeals decision could mean the end of a policy by the Pitkin County Attorney’s Office that protects the identity of residents who make land-use complaints.
The appellate court, citing the Colorado Open Records Act, ruled that Pitkin County wrongly withheld the name of a person who complained about illegal construction activity on the property of Red Mountain resident Elesabath Shook. The county plans to see if the Supreme Court will hear its argument to keep the identity sealed.
Aspen and Pitkin County government agencies take varying approaches toward handling resident complaints, which aren’t always subject to confidentiality.
Whether the complaint concerns a land-use violation or criminal activity, the identity of the person tipping off an agency about wrongdoing could become public.
Unlike Pitkin County, the city of Aspen has no policy that keeps confidential the names of complainants who report land-use violations.
“We have advised people in the past that a written complaint could be released under the (Colorado Open Records Act),” said City Attorney Jim True. “And we don’t have any formal policies associated with it.”
Different approaches by law enforcement
Those wanting to make an anonymous complaint to law enforcement agencies also aren’t guaranteed anonymity.
The Aspen Police Department and Pitkin County Sheriff’s Office have different philosophies toward anonymous tips. The Aspen Police Department will take them, but the Sheriff’s Office is more reluctant to do so.
“We absolutely do accept anonymous complaints,” said Assistant Police Chief Bill Linn. “But if you say you want to make an anonymous complaint and then give us your name, you’re no longer anonymous.”
Sheriff Joe DiSalvo said that for the most part, his office does not act on anonymous tips.
“In our history, at least in mine, I think there is the potential for abuse with anonymous complaints,” he said. “A lot of times it’s neighbors not getting along, and if someone calls me and says anonymously that their neighbor is dealing drugs, I don’t want to hassle someone who needs a better fence. And if you’re seeing a crime in process, I think it’s your responsibility to come forward with your name.”
Confidential tips regarding violent crimes, however, are handled by his office, the sheriff said.
“If we hear someone is getting beaten or a child is being abused, we will look into it,” DiSalvo said.
When an informant comes forward with their name, they also can become a witness and be subpoenaed to testify, Linn and DiSalvo noted.
“As the reporting party, you may very well be testifying and finding yourself in court,” DiSalvo said.
The county case
Shook asked the county for the name of the person who complained about her illegal construction. She quickly complied with the county’s rules and obtained a construction permit, but she wanted to know who blew the whistle on her.
The county provided her with documents about the complaint but none that revealed the reporting party.
On March 8, 2014, 9th Judicial District Judge Gail Nichols, after reviewing the case in a hearing, favored the county’s position to keep the name private.
“That complainant expressly asked that his identity be kept confidential,” Nichols wrote.
Nichols’ ruling also cited a statement from County Attorney John Ely, who refused to release the complainant’s name: “I can see no positive community benefit in the release of this identification and only a potential for untoward consequences.”
Nichols denied the release of the name based on a passage in the Colorado Open Records Act that allows the withholding of records when they “are either contrary to the public interest” or related to criminal investigations conducted by a sheriff, prosecutor or police department.
Shook’s land-use violation constituted a misdemeanor criminal offense, but the county didn’t pursue charges because she secured a building permit after the complaint was made. Shook testified that she wanted to know the name so she could resolve the matter on friendly terms with the person. She also testified that she had no ill-minded intentions against the complainant.
Nichols, however, wrote that “keeping the complainant’s identity confidential is in the interest in keeping peace, allowing for a peaceful resolution of the matter, allowing the violator to come into compliance with the code and encouraging citizens to report potential violations, which in turn encourages equal enforcement of the code in the community and thus enhances the community.”
Shook countered that the open records act says that complaint forms can be open to public inspection, including the names of whistleblowers. The appellate court agreed, also noting in a June 18 ruling that the county’s case didn’t take on the posture of a criminal investigation, which could have protected the witness’s name under the open records act.
And, as DiSalvo and Linn noted, the act doesn’t always protect tipsters in criminal cases.
“We really do try to protect the anonymity of people, but sometimes the situation just does not allow it,” Linn said.
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