Freedom of information just got a little freer.
On Monday, the Colorado Supreme Court ruled that advocacy groups, the media and individual citizens who sue because they believe a document should be open to the public and win all or part of their lawsuit are entitled to receive at least a partial reimbursement for their legal costs.
“This is a win for the people, pure and simple,” said Jerry Raehal, CEO of the Colorado Press Association. “Citizens should not have to pay legal costs for records that rightfully belong to them. The alternative was for citizens to pay their own legal fees to access records that belong to them, while their taxpayer dollars were being used to stop them. This ruling rights that wrong.”
The case that led to the ruling began in 2006 when the Colorado Republican Party sued to obtain access to a survey conducted by several former and current Democratic representatives in the General Assembly. The Republicans eventually obtained access to nearly 60 percent of the almost 1,600 surveys, but a district judge ruled the remainder were not subject to release under the open-records act because the surveys included personal correspondence between constituents and their elected officials.
Because the Republicans only won access to 60 percent of the surveys, the district judge denied their motion – as the prevailing applicant – to be paid, as the act allows, court costs and attorney fees.
“It’s up to the trial court to decide how much the Republicans will be reimbursed,” said Steven Zansberg, president of the Colorado Freedom of Information Coalition. He is also The Durango Herald’s attorney. “There may be expert testimony evaluating the amount of time devoted to the case. They may be entitled to recover the expenses only on the portions where they prevailed.”
A case like this can run into the tens, if not hundreds, of thousands of dollars, he said. In a case in March, a judge ordered the Aspen City Council to pay attorney’s fees of more than $195,000 to Marilyn Marks based on a case where she sued for access to ballots from a 2009 election.
In the dissent on the Republican case, Supreme Court Chief Justice and Justice Gregory Hobbs argued the ruling puts the state in an “untenable” position.
“The majority’s holding forces the government to litigate over court costs and attorney fees any time it improperly denies access to a single record,” they wrote. “That is antithetical to the legislature’s clear intent to protect the government while also ensuring access to public records.”
Zansberg said no one tracks how many lawsuits emerge from denials for public records in Colorado each year but said it may range from dozens to hundreds. Now, each successful case may require further litigation to determine the appropriate remuneration for costs.
“It behooves the public and the government alike to clarify the areas where there is disagreement about what areas are covered and what are exempt under the law,” Zansberg said. “The ambiguity ends up costing citizens and the government substantial sums.”
Areas that need clarification?
“There are still fairly frequently recurring disputes over ‘What is a personnel file?’” he said. “Another is what type of fees can be charged for inspecting, or to be more accurate, copying records. That was amended this term to put a cap on research and retrieval fees, but there is still a fair amount of dispute of what is and is not a nominal retrieval fee.”