Public records not always open to Colorado residents, survey finds

By The Associated Press

11.16.00

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Deep in rural southwestern Colorado, Hinsdale County citizens are forbidden to see how much they pay their school superintendent — until he or she is fired or quits.

School officials in Greeley won't show you the superintendent's contract, either. But they will read it to you.

In Grand Junction, a police officer's burglary report is off-limits.

"We have to have a good reason to give that kind of information," a clerk says.

Being an interested citizen is not a good enough reason.

The San Miguel sheriff can toss people into jail. But citizens of the tiny county bordering Utah can't find out whom the sheriff has put behind bars.

"That information is not public knowledge," a sheriff official says. "We have to protect the rights of the inmates as well as respect their privacy. Anyone can walk in here and try to get information."

Well, yes, that's the point.

Under Colorado law, anyone should be able to walk into the local jail and find out who is inside. They should be able to see basic police documents about a neighborhood burglary. They should be able to see what they're paying the school superintendent.

So, can they?

Most of the time, yes. But not always.

A third of the time, local government agencies failed to comply with state law, which declares "all public records shall be open for inspection by any person at reasonable times."

That's what member newspapers of the Colorado Press Association and the Associated Press found out after seeking public documents on a scale unprecedented in Colorado.

From July 11 through mid-October, more than three dozen Colorado newspapers, from The Denver Post to the Telluride Daily Planet, and the Associated Press, visited all 63 counties.

They asked for six bedrock public documents: the superintendent's contract, police incident reports, a jail roster, the mayor's travel expenses, a restaurant health inspection and a list of people charged with a crime.

Plenty of government records, such as police investigations, are not public, but the newspapers didn't ask for any of those.

In most places, the process was as simple as ordering a hamburger and fries.

About half the time, documents were handed over immediately. Sometimes it took a little longer. But overall, two-thirds of the agencies produced documents within the 72 hours sometimes allowed by state law.

One out of every eight requests, however, was rejected.

Sometimes the officials said they were protecting someone's privacy. Sometimes they said it's simply none of the public's business. A few provided no reason at all.

One of them was Charles Johnson, superintendent of the Akron R-1 School District in rural Washington County.

An Associated Press employee asked Johnson for documents containing his salary and benefits. He asked her why. She said it was for a survey of public records.

"My comment was, 'You really haven't given me a good reason. I need to move on to something else,' " Johnson said in an interview.

And the fact that the document is public, period?

"That doesn't have anything to do with it," he said.

In the interview, Johnson did acknowledge his salary and benefits are a matter of public record.

"You want it, you can get it. I eventually told her that," he said, yet never actually produced the document.

Episodes such as that are troubling to Ed Otte, executive director of the Colorado Press Association, a trade and lobbying group of 151 newspapers.

"This is information every resident of every community in Colorado is entitled to know," Otte said. "Public officials are accountable for their decisions and their actions to the people in their community. Easy access to public records is at the heart of that accountability."

In all, Colorado newspapers made 364 separate requests for public documents and 66% of the time the records were produced either immediately or within 72 hours.

That compliance rate is roughly in line with about a dozen other states where similar surveys have been conducted since 1997.

It was better than the performance of Connecticut public agencies, which complied with that state's records laws only 20% of the time in a survey conducted last spring.

But Colorado fell far short of Kansas, where 92% of records requests were granted during a survey last year — and where, after the survey, state lawmakers made records even easier to obtain.

Here in Colorado, state Attorney General Ken Salazar said he saw "good news and bad news" in the results of the survey.

Whenever public records are denied, he surmised, "it is because the custodian of the records is not familiar enough with the open-records law, or there has been an erroneous application of the statutory limits, not out of malice or intentional disregard for the law."

"Information, education, and understanding," Salazar said, "are keys to successfully executing the open-records law."

Gov. Bill Owens said he welcomes putting the state's open-records laws to the test. The effort, he wrote in response to the survey, "should help keep us accountable to our constituents."

The governor also is aware the law isn't being followed everywhere.

"In any large organization," Owens wrote, "especially one as decentralized as state government, there could be times when compliance may not be timely or complete."

That is especially true among law enforcement.

While police and sheriff departments were among the most willing to provide immediate access to records, they also were the most likely to say no.

They rejected one out of every five requests for their records, by far the highest denial rate among the public agencies surveyed. Together, they accounted for three of every four denials to requests for public documents.

That neither surprises, nor necessarily concerns, Suzanne Mencer, executive director of the Colorado Department of Public Safety, which oversees the Colorado State Patrol, the Colorado Bureau of Investigation and other agencies.

Local police and sheriff departments must protect life and property, she said, even if that means occasionally withholding information that the law says is public.

"It's a tightrope that law enforcement has always walked," Mencer said. "It's a dilemma. Everyone wants to give the public as much information as possible, because they deserve that, but you also need to protect people, if possible."

Police enjoy more discretion under Colorado's open-records laws than other government agencies. Mencer said that's for the best.

"The law needs to be a little flexible," Mencer said. "It helps if we have some leeway on what we can release and what we can't."

School districts were the most willing to let someone see their records.

Three out of four times, the documents were produced within 72 hours.

At city halls, requests to see the mayor's travel expenses were granted almost as frequently.

The most difficult public document to obtain was a restaurant inspection.

It was not because the local health department denied access, but because many smaller Colorado counties leave inspections to larger, neighboring counties, or to the state Health Department.

In those cases, the reports are filed either in the next county, or in Denver. Whenever an inspection report was available locally, it was made available almost every time.

Half of the time, the public agencies asked surveyors to identify themselves or explain why they wanted the information.

The agencies that denied access were especially keen: eight out of 10 of them demanded identification, even as they refused to provide any documents.

Colorado law does not require anyone seeking public records to identify themselves.

Indeed, not even citizenship is required.

The law does allow government to charge "reasonable" copying fees. Nine out of 10 times, access to records was free, usually because the records were viewed right in the office. Those who were charged paid a few dollars or less.

The Adams County Sheriff's Office, however, told one surveyor that extracting the names of people accused of crimes from 60 case files would cost at least $600.

State law caps copying fees at $1.25 per page, "unless actual costs exceed that amount."

When the surveyor identified himself as a reporter for the Denver Rocky Mountain News, the fee dropped to zero.

"She said that was nice," the reporter recounted. "They were all quite nice. But they had no idea what the law is."

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FOI UPDATE 2000: State and local developments
Open government at the state and local levels is gaining some ground, despite growing concerns about privacy in the Digital Age. A March 2000 survey of Freedom of Information developments resulted in these key findings:  02.13.01