CORA/CCJRA UPDATEESPIOC

May, 2013Mary Dulacki

Records Coordinator, Office of the Manager of SafetyCity and County of Denver

CORA or CCJRA?

Colorado Open Records Act (CORA)CRS 24-72-201, et. seq.

Criminal Justice Records Act (CCJRA)CRS 24-72-301, et.seq.

“Public Records” means and includes all writings made, maintained, or kept by …[a] political subdivision of the state…and held by any local-government-financed entity for use in the exercise of functions required or authorized by law or administrative rule or involving the receipt or expenditure of public funds

“Criminal Justice Records” means materials made, maintained or kept by any criminal justice agency in the state for use in the exercise of functions required or authorized by law or administrative rule

Record must be for use in the performance of public functions or involve the receipt of public fundsCRS 24-72-202(6)(A)(I)

WHAT IS THE REASON THE RECORD IS KEPT?

Not a public record if maintained in private capacity--Private Diary;-Email received in furtherance of personal relationship even on publicly owned equipment Denver Publishing Co. v. County Comm. Of Arapahoe-Personal cell phone used for public business-not “made, maintained, or kept” in official capacity Ritter v. Denver Post

“Public Record” (CORA)

Criminal Justice Records “Work Product” –deliberative, pre-decisional

materials that express an opinion assembled for the benefit of an elected official

Communication between a constituent and an elected official that “clearly implies by its nature or content” that it is expected to be confidential

CRS 24-72-202

Not a “Public Record”

Medical, mental health, sociological, scholastic information Personnel Files (NARROWLY DEFINED), except to subject Letters of Reference Trade secrets, privileged information and confidential

commercial information Library and museum records Information on users of public facilities and utilities Records of sexual harassment complaints/investigations Deliberative Process Privilege Contrary to any other state statute, federal law or court

rule (HIPPA, attorney/client privilege)CRS 24-72-204(3)(a)

DO NOT RELEASE UNDER CORA

“Personnel Files”CRS 24-72-202(4.5)

DO NOT RELEASE!!! RELEASE!!!

“means and includes home addresses,

telephone numbers, financial information, and other information maintained because of the employer-employee relationship, and other documents specifically

exempt from disclosure”

“does not include applications of past or

current employees, employment

agreements, any amount paid or benefit

provided incident to termination of employment,

performance ratings…or any compensation…”

Personnel Files - Denial

EXPLAIN BASIS FOR DENIAL SAMPLE LANGUAGE

If not specifically enumerated in statute, be prepared to identify the basis for denial.

Example: pre-decisional administrative leave

the information requested is maintained because of the employer-employee relationship that would be detrimental to the employee and the public interest to disclose. Your request is therefore denied pursuant to CRS 24-72-204(3)(a)(II)(A) and 204(6)(a)

“material is so candid or personal that public disclosure is likely to stifle honest and frank discussion within the government, unless the privilege has been waived.”

If privilege asserted, “custodian shall provide the applicant with a sworn statement specifically describing each document withheld, explaining why each such document is privileged, and why disclosure would cause substantial injury to the public interest.”

Government interest in confidentiality must outweigh the public interest in disclosure

CRS 24-72-204(3)(a)(XIII)

“Deliberative Process Privilege”

Unless otherwise provided by law, custodian may deny inspection of the following records on the ground that disclosure would be contrary to the public interest:

Law Enforcement Investigations (Criminal Justice Records) Test questions, scoring keys Details of research projects Real estate appraisals relative to property acquisition Security expenditures (usually criminal justice records) Market analysis generated by Dept. of Transportation Email addresses provided for future communications Drivers’ License record information

CRS 24-72-204(2)(a)

CORA DISCRETIONARY DISCLOSURES

“Criminal Justice Agency”-performs any activity directly related to the detection or investigation of crime; the apprehension, pretrial release, posttrial release, prosecution, correctional supervision, rehabilitation, evaluation, or treatment of accused persons or criminal offenders; or criminal identification activities or the collection, storage or dissemination of arrest and criminal records information.

“Official Action” -arrest; indictment; charging by information;

disposition; pretrial or posttrial release from custody; judicial determination of mental or physical condition; decision to grant order, or terminate probations, parole, or participation in correctional or rehabilitative programs; and any decision to formally discipline, reclassify, or relocate any person under criminal sentence.

Criminal Justice Records

Mandatory Release – Records of Official Actions

Prohibited Release – Contrary to Statute or Court Order

Discretionary Release- Subject to Balancing Test weighing Harris Factors Deny if contrary to public interest

Release of Criminal Justice Records

Fact of arrest, date and place Name DOB Last Known Address Sex Charges Disposition Fact adult is on probation, terms and

conditions of probationCRS 24-72-302(7)

MUST DISCLOSE“Official Actions”

Sexual assault information CRS 24-72-304(4)Name and identifying information of victim

Juvenile records Reports of child abuse or neglect and name and

address of any child or family or other identifying information shall be confidential and shall not be public information (CRS 19-1-307)

Law enforcement records concerning juveniles are confidential and shall not be open to the public (CRS 19-1,304(2)(a))

Name, DOB, address (no mugshot) if charged with listed serious crimes (CRS 19-1-304(5))

DO NOT DISCLOSE

At risk adult (CRS 26-3.1-102(7)(a)) Mental Health Holds (CRS 27-65-121) HIPAA Detox (CRS 27-81-111) Medical Marijuana Registry (CRS 18-18-406.3) Sex Offender Registration Form (CRS 16-22-

109(4)) Social Security Numbers Privileged matters (attorney/client)

DO NOT DISCLOSE

Sealed Records (CRS 24-72-308)◦ Only where person not charged; case dismissed; or person was

acquitted

◦ Removes from public access

◦ “No Such Record Exists”

◦ How do you seal social media posts? Maintain record of post Maintain record of removal

DO NOT DISCLOSE

If the record sought is not a record of official action and its disclosure is not prohibited, then the disclosure is discretionary and can be denied where the custodian believes the disclosure would be contrary to the public interest.

CRS 24-72-305(5)

DISCRETIONARY DISCLOSURES

Pursuant to Harris v. Denver Post, 123 P.3d 116 (Colo. 2005), the following factors are used to determine whether a record should be released or withheld:◦ The privacy interest of individuals who may be impacted

by disclosure;◦ The agency’s interest in keeping information confidential;◦ The agency’s interest in the integrity of on-going

investigations;◦ The public purpose to be served in allowing disclosure of

the record;◦ Any other pertinent considerations relevant to the

circumstances of the particular records request, including whether disclosure would be contrary to the public interest.

THE BALANCING TEST

Every request must be subject to a case-by case analysis

You cannot have a per se rule about the release of a record subject to a discretionary disclosure

You must articulate the fact that the custodian has weighed the public and private interests associated with release of the records

THE BALANCING TEST

Case Files, reportsWill release jeopardize investigation/prosecution, reveal confidential source, operational details?

911 Calls Mugshots Operational Plans Crime Scene Photos

Criminal Justice Records Subject to Discretionary Disclosure

Law enforcement disciplinary records are governed by CCJRA, not CORA

Subject to the balancing of the Harris factorsFreedom Colo. Info. v. El Paso County Sheriff’s Dept., 196 P.3d 892 (Colo. 2008)Romero v. City of Fountain, WL 1797240 (Colo. App. 2011)

Public has an interest in knowing how public employees are disciplined

If the investigation relates to duty-related conduct and is not of a personal and private nature, public has an interest

Internal Affairs Investigations

“Criminal justice agencies may assess reasonable fees, not to exceed actual costs, including but not limited to personnel and equipment, for the search, retrieval, and redaction of criminal justice records requested pursuant to this part 3 and may waive fees at their discretion. In addition, criminal justice agencies may charge a fee not to exceed twenty-five cents per standard page for a copy of a criminal justice record or a fee not to exceed the actual cost of providing a copy, printout, or photograph of a criminal justice record in a format other than a standard page.” CRS 24-72-306(1)

Reasonable fees for search and retrieval have been upheld (Black v. SW Water C.D., 74 P.3d 462 (Colo. App. 2003),$15 per hour and $20 per hour for voluminous requests in 2003)

If it is necessary to manipulate data to generate a record in a form not used by the agency, a reasonable fee may be charged◦ But you are not required to manipulate data

Fees

“Don’t taxpayers already pay your salary?” “No other agency charges us” “You’ve made this into a money making

venture that keeps the public in the dark”

Explain what goes into identifying, retrieving, redacting and copying of the records

Fee Issues

Amends CORA 24-72-205(1)(b) Requires transmission of records by US mail

or “any other practicable means of delivery”

No fees related to transmission may be charged if emailed

Fees may be charged for cost of mailing, delivery and “other costs associated with producing the record”

Prepayment notification

HB 1041

Custodian may make rules as are reasonably necessary for the protection of records and the prevention of unnecessary interference with the regular discharge of the duties of the custodian’s office

CORA Records shall be made available within a “reasonable time” – presumed to be 3 working days or less◦ May be extended if extenuating circumstances exist◦ Provide notice in writing within 3 day

CCJRA – Respond within 3 Days (not Provide)

Applicant may request a written denial – respond within 72 hours

Processing Requests

Requests in writing

Specificity of requests

Procedures for inspection (no removal, by appointment during business hours)

Reasonable fee

Requests will not take priority over scheduled work activities◦ Recognizes need to balance public access and administrative burdens

of responding to requestsCitizens Progressive Alliance v. SW Water C.D., 97 P.3d 308 (Colo. App. 2004)

Establish Policy