Response to records law varies widely between public agencies
October 20, 2006
DENVER – Want to know what your local planning commission has been up to? It’s easy and free in many places, but be prepared to go through the city attorney’s office to get meeting minutes if you happen to live in, say, Sterling.Curious about how your favorite restaurant did in its last health inspection? In some Colorado counties, just go online and it’s all laid out free of charge. Elsewhere, be prepared to fill out a formal request, pay for copies and face a few questions from health department employees.How about e-mail messages sent between a school superintendent and school board members? Be ready for even more suspicion or even rude treatment. Be patient, too: Many districts send such requests through their staff attorney who will want to know what the information will be used for.Colorado’s public records law is fairly simple. With some exceptions for personnel or proprietary commercial information, the public is entitled to see any record – on paper or otherwise – made, maintained or kept by any public entity for use in carrying out its duties or involving the receipt or spending of public money.Yet, the way Colorado local government agencies handle public records requests varies sharply, according to a statewide survey conducted by 23 newspaper members of The Associated Press and Colorado Press Association, including The Aspen Times, summer.The results show that obtaining records can be an intimidating and disheartening process for members of the public, said Ed Otte, executive director of the CPA.”Although this project was organized by the Colorado Press Association and The Associated Press, the intent was to show how easy or difficult it is for the public to access public records,” Otte said. “In some situations where there are obstacles to getting copies of records, or the fees seem unusually high, that can serve as a deterrent.”The survey included requests for records in 19 counties from the Western Slope to the eastern Plains. It covered municipal and county agencies, school districts and special districts. To request the records over two days in June, newspapers recruited members of the public, interns and reporters who identified themselves when asked.In some places, recruits had no problems. Some agencies put restaurant inspections, meeting minutes and other information on the Internet, and others handed over documents without question.North Metro Fire Rescue in Adams County, for example, provided a copy of a financial audit for free. The Gypsum town manager’s office turned over travel expenses, no questions asked and no fee charged.But some of the requests were met with resistance and suspicion.Amy Maestas, who checked for records from city of Durango and La Plata County agencies, said she had expected some resistance. But she was surprised at the confusion or rudeness demonstrated by officials when she asked for records concerning a day-care center and for e-mail messages between the Durango School District 9-R superintendent and board members.Maestas, who was unemployed at the time she sought records but now is a copy editor for the Durango Herald, said local officials referred her to the state government for the day-care center records. The response took three weeks.”I’m not a parent, but I can certainly understand some level of frustration that parents would go through trying to get their child into day care, needing that information to make such a critical decision,” she said. “It seems like that information should be made readily available and that the staffs of child-care centers should be able to make that accessible in a timely fashion.”Like many other recruits, she found the most suspicion came from school district officials.”If I were a parent trying to take a role in my child’s education, I’d want the leaders to be more forthcoming and easier to work with,” she said.In Logan County, Marcia Heifner said she was frustrated by the resistance she found.”It seemed to me like the city of Sterling, they felt like they were trying to protect the holy grail or something,” she said. “They weren’t really jumping at the chance to be helpful a lot of the time.”Elsewhere, a recruit who asked for e-mail messages between the Steamboat Springs School District superintendent and school board members said she was laughed at before she was peppered with questions: Who are you? Why do you want the messages and what are you going to use them for? The request was eventually routed through the district’s attorneys.There was a similar response at the St. Vrain Valley School District, where the recruit was repeatedly asked why she wanted the information and what she planned to do with it. She was then asked to submit a written request that was then presented to the superintendent and each board member.Overall, requests for the school e-mails raised the most suspicion, followed by requests for city officials’ travel expense reports, requests for traffic accident reports and restaurant inspections.Agencies can set reasonable rules for handling their records, but the bottom line is that as long as a record is readily available – generally meaning not in storage or in active use – it must be made available for inspection immediately, said Tom Kelley and Steve Zansberg, two Denver attorneys who specialize in media law.Court rulings and a 2001 attorney general’s opinion say people asking for public records don’t have to identify themselves. And they don’t have to tell the agency why they want the information, the attorneys said.Zansberg said at least one public official has complained that reporters – who are supposed to have the same access as any member of the public – engage in a “fishing expedition” by asking for records without explaining why they want it.”My response is the Open Records Act is a fishing license,” Zansberg said. When an official asks a question in these cases, “the appropriate answer either is I’m not going to tell you, or the reason I want them is because the law says I’m entitled to them.”Still, nothing in the law specifically prevents record-keepers from seeking information about who is asking for certain records or why. Many agencies say it helps them determine exactly what records will be most helpful to the person requesting them.”They certainly can ask the questions, but you’re entitled to refuse to answer, and if they refuse to disclose the records, I think they’re violating your rights,” Kelley said. In Mesa County, a staff member at the health department, when asked to provide a restaurant inspection report, told the recruit the agency “did not give this information to just anyone,” according to the survey. The recruit later learned inspection results can be viewed on the Internet for free.Some agencies legitimately ask for more information to help narrow the request, said Mark Silverstein, legal director for the American Civil Liberties Union’s Colorado chapter.Others set obstacles that make it difficult to learn about how decisions are made or money is spent, he said.”There’s a tremendous risk that agencies who have something to hide will in fact try to hide the info by making it overly difficult to obtain public records,” Silverstein said. “And just as the copying fees can have a chilling effect on the ability of members of the public to review public documents, so too the unnecessary obstacles put in the path of records requesters can also have a chilling effect.”Some community groups or some interested members of the public might just give up,” he said.