When a government agency wants $5,850 to fulfill a request made under the Colorado Open Records Act, is it effectively denying access to those records?
A Denver District Court judge recently dismissed a lawsuit filed by a nurse, Janet Monson, who challenged the high cost of obtaining pay-related records from her employer, the Colorado Department of Human Services. CDHS estimated it would take at least 196 hours – nearly five full weeks – to review and redact the documents for privilege and other possible CORA exceptions.
One hundred ninety-six hours multiplied by the agency’s $30-per-hour research-and-retrieval rate amounts to $5,880. Because the law says the first hour must be provided at no charge, CDHS asked for $5,850 to process Monson’s request.
“This case is highly significant,” Monson’s lawyers, Casey Leier and William Finger, argued in a court document submitted in May. If the charges are upheld, they wrote, “the public policy is subverted. Obtaining records under CORA will be effectively blocked by claims of the need to review records for privilege and the excessive and unreasonable charges that will be imposed so the right of inspection can be extinguished.”
But the Colorado Attorney General’s office, representing the human services department, argued that CORA permits the charges CDHS says were necessary to review the nearly 10,000 pages of documents requested by Monson. In dismissing the case without a hearing, Judge Kandace Gerdes accepted the AG’s contention that Monson’s “aversion towards paying this fee does not amount to a denial of her request.”
The law “allows an agency … to collect a deposit prior to producing the records,” the judge wrote.
Earlier this month, Leier and Finger asked the Colorado Court of Appeals to look at whether the district court adequately considered several key issues, including: 1) “the reasonableness” of CDHS’ cost estimate; 2) the agency’s claim that the documents contained privileged information; and 3) “the public policy underlying CORA, which is to create a strong presumption in favor of public access to the workings of government.”
The records requested by Monson, who works at the Wheat Ridge Regional Center, were related to a grievance she filed against CDHS last summer, alleging unequal pay discrimination. According to her lawsuit, they included an investigative report, wage information for state employees and other documents supporting “the Department’s position that wage discrimination was not occurring relating to Janet Monson.”
CDHS’ records custodian initially said the agency needed a minimum of three hours to produce the records, Monson’s lawsuit says. Her attorneys hand-delivered a check for $60, but then the records custodian asked for an extension of time and later issued a denial, saying the records contained “attorney-client communications and work product.” After Monson’s attorneys filed a notice of intent to sue, CDHS officials agreed to provide non-privileged portions of the records at a cost of $5,850, according to court filings.
“A review of the nearly 10,000 pages is permissible, and (the agency) is entitled to charge its fee associated with the review,” says the AG’s motion to dismiss the case.
A response filed by Leier and Finger called the charges “plainly a bad-faith effort by (CDHS) by changing their position to allow production of the records at the last moment before a suit would be filed, yet requiring a large sum of money which would effectively make the records still unavailable.”
Their appeal notes that they paid CDHS for two hours of research-and-retrieval time, yet no documents were provided.
Cost is often an impediment to obtaining public records in Colorado. A law passed in 2014 standardized CORA research-and-retrieval charges statewide, capping the hourly rate at $30 after the first hour. But charges add up quickly if a records custodian says it will take 10 or 20 or 30 hours or more to produce requested documents.
The maximum hourly rate went up with inflation to $33.58 on July 1, but state and local government entities aren’t permitted to charge that amount without first updating their published CORA fee policies.
This story was originally published on Aug. 26, 2019 on the Colorado Freedom of Information Coalition website. Follow the Colorado Freedom of Information Coalition on Twitter @CoFOIC. Like CFOIC’s Facebook page. Do you appreciate the information and resources provided by CFOIC? Please consider making a tax-deductible donation.