Open records

The Colorado Open Records Act is based on the premise that public documents – that is, those created by public bodies for their official business – are, by and large, available for public inspection. There is a lengthy and justifiable list of exceptions to that premise, of course, which includes personnel files, medical and mental-health data, trade secrets and library records, among many others, but the presumption of openness rules the day. The underlying notion that the public has a right to see most public documents is solid in Colorado, and the state Supreme Court recently bolstered that foundation with its ruling that those who successfully sue to access public records are entitled to recover attorneys fees. It was a sound decision.

The ruling, which upheld an appeals court reversal of a lower court’s finding, means that the Colorado Republican Party can collect attorney’s fees for its successful efforts to gain access to public surveys that several Democratic state legislators had refused to surrender when asked. A lower court had found that because the Colorado Open Records Act did not require lawmakers to hand over the whole list of documents the Republican Party had requested, the party had not fully prevailed and therefore was not entitled to legal fees. The appeals court and the Colorado Supreme Court found otherwise, affirming the Open Records Act’s intent, as well as underscoring statutory commitment to supporting access to public documents. In short, plaintiffs are entitled to have covered the costs of insisting on access to whatever documents a court determines to be public.

It should be thus. While there are certainly legitimate exceptions to the Open Records Act, they are clear and limited. Those documents not exempted from public access, then, should be readily shared, and the law should not favor public officials who attempt to withhold public documents. The Colorado Legislature said as much in 2001 when it shored up the Open Records Act to require court costs and fees be paid for prevailing plaintiffs seeking access to documents. Previously, the law had left it up to the courts to decide whether to make the individual holding the documents in question pay for plaintiffs’ fees. The law is now quite clear: “Unless the court finds that the denial of the right of inspection was proper, it shall order the custodian to permit such inspection and shall award court costs and reasonable attorney fees to the prevailing applicant in an amount to be determined by the court.”

The question before the Colorado Supreme Court, then, was the extent to which a plaintiff must “prevail” in order to be reimbursed for fees. In its 5-2 decision, the court found itself on the side of common sense: Those matters in which a plaintiff prevails are those for which his costs should be covered. Given the clear nature of the Colorado Open Records Act and its exemptions, this was a rather simple decision. It was the right one that affirms access to the public’s documents, and encourages the public to push for that access under the law’s provisions.

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